Calcutta High Court Madhab Chandra Bakuli-vs-State Of West Bengal on 9 June, 1998
Equivalent citations:II (1999) DMC 160
Author: K J Sengupta
Bench: S K Tiwari, K J Sengupta
Kalyan Jyoti Sengupta, J.
1. This appeal is directed against judgment and sentence passed by the learned Sessions Judge, Fifth Bench of the City Sessions Court at Calcutta in Sessions Case No. 64 of 1988 and Sessions Trial No. 2 of 1989. The appellant/accused stood for trial on the charges under Section 302 of the Indian Penal Code and under Section 498A of the Indian Penal Code. The brief fact of the case is as follows :
“One Tapati @ Tapu Bakuli being the wife of the appellant/accused died of burn injury which she had sustained at night at about 9.30/9.45 p.m. of 25th February, 1985. After having sustained severe burn injury she was removed from the house of the appellant/accused and admitted to Medical College Hospital. On 25th February, 1985 the said deceased victim made a statement before the Sub-Inspector of Police to the effect that appellant/accused being the husband of the victim on 12 Falgun, 1391, Sunday corresponding to 24th February, 1985 at about 9.30/9.45 p.m. poured kerosene oil on her body and kinded fire to burn her to death in their bed room at the first floor. Her clothings caught fire and she could see nothing. She cried aloud saying, “save me, save me”, water was poured and fire was extinguished and whole of her body was seriously burnt. Her ‘Bhasur’ (elder brother of her husband) got her admitted to the hospital. Her husband, Madhab Chandra Bakuli, being the appellant / accused used to ask her always to commit suicide by taking poison. She was feeling much burning sensations in her body. The above was the complaint of the said victim, Tapati Bakuli.
2. In pursuance of this complaint, the Investigating Officer of Shyampukur Police Station, Calcutta started investigation. At night of 25th.February, 1985 the Investigating Officer went to the place of occurence and seized various incriminating articles and prepared a seized seizure list. Appellant/accused was arrested on that day. The Investigating Officer obtained statement of various persons under Section 161 of the Criminal Procedure Code. Thereafter the charge was framed by the learned Court below in the manner as follows :
(i) That you Madhab Chandra Bakuli on or about 24th February, 1985 at about 9.30 p.m. in your bed room on the first floor of the premises No. 1 A, Gosai Lane, Police Station Shyampukur, Calcutta poured kerosene oil on the clothings and body of your wife Smt. Tapati Bakuli @ Tapu Bakuli and set fire by kindling a match stick on the same thereby causing extensive burn injury on her person as a result of which she expired at about 4.00 p.m. on 27th February, 1985 in the Calcutta Medical College Hospital and thereby you committed an offence punishable under Section 302 of the Indian Penal Code within the cognizance of this Court of Sessions.
(ii) You on various occasions and particularly on the aforesaid date, time and place being the husband of the said Tapati Bakuli wilfully subjected her cruelty by harassing her with a view to coerce her and her relation to meet your unlawful demand of money and goods and also causing grave mental and physical injury to her eventually leading to her death of on the aforesaid date, time and thereby you committed an offence punishable under Section 498A of the Indian Penal Code and within the cognizance of this Court of Sessions.
3. The prosecution in order to prove the charges, has examined as many as 29 witnesses, the defence produced none. It appears from the trend of the answer to the questions put under Section 313 of the Criminal Procedure Code that defence version is totally denial. The learned trial Judge has convicted the appellant on the sole piece of evidence i.e., the dying declaration allegedly made by the victim and which was taken down and/or recorded by the P. W. 23, the learned Magistrate. The learned trial Judge apart from dying declaration, has also relied on unspecified circumstantial evidence.
4. It appears that the present case was initiated after a statement allegedly made by the victim and allegedly obtained by the Investigating Officer in presence of a Doctor, viz., Dr. Bhupali Pal, a Lady Doctor on 25th February, 1985 at about 1.10 a.m. At the instance of the Investigating Officer an application was made on 25th February, 1985 before the learned Additional Chief Metropolitan Magistrate for deputing a learned Magistrate to record dying declaration. Accordingly, an order was passed and P.W. 23 was deputed to record dying declaration at the hospital. At 4.00 O’clock in the afternoon of 25th February, 1985 the dying declaration was alleged to have been recorded by PW 23, the learned Magistrate.
5. The learned Lawyer appearing for the appellant submits that the victim was not in a position to give any declaration as it has been alleged by the prosecution, as she sustained 90% burn injury. In the circumstances she was under influence of sedative drugs and medicine. All the time she remained unconscious. She was not in a position to make such dying declaration. As such it is unsafe to convict on the basis of the dying declaration when there is a serious doubt as to whether the deceased/victim was in a position to make dying declaration. Moreover, there is no evidence to prove that the appellant/accused inflicted any physical and/or mental torture. In support of his submission he cites and relies on the following decisions :
(1) 1994 Cr. LJ (SC) 946:1994 C Cr. LR (SC) 118; (2) 1996 Cr. LJ (Allahabad) 1507; (3) 1997 Cr. LJ (Delhi) 372; (4) 1994 Cr. LJ (SC) 617; (5) 1997 (1) Cal HN 315 :1998 C. Cr. LR (Cal.) 54); and (6) .
6. He submits that if there is no other evidence worth against the accused except dying declaration which is highly doubtful in nature, accused must be acquitted. In this case, it will appear from the evidence and surrounding circum- stances that the dying declaration could not be obtained from the deceased as her mental and physical condition were such that she was not in a position to make such dying declaration. As such the said dying declaration is very doubtful document.
He further argues that mere evidence of PW 24 being the Doctor stating that deceased was capable of making simple statement is not enough to make the dying declaration acceptable. The learned Magistrate himself should have ascertained the mental state of declarant. It does not appear from the evidence of the learned Magistrate that any question regarding her mental state was put to Tapati. Admittedly, the deceased having 80% to 100% burn injury and/or in a sadated condition could not be said to be in a fit state of mind to make any statement. As such the dying declaration is not reliable nor safe for recording conviction.
7. The learned Lawyer for the appellant further submits that the learned trial Judge has convicted not only on the basis of the dying declaration but on the basis of the several unexplained and unspecified circumstances. Unfortunately no question was put to the appellant under Section 313 of the Criminal Procedure Code on the point of the dying declaration as well as the circumstances. So the mandatory requirements under the law, has not been fulfilled. As such the conviction must be set aside and he has relied on a judgment of a Division Bench of this Court in Criminal Appeal No. 39 of 1996 and Ref. No. 2 of 1996 reported in (1997) 1 Cal. HN 315.
8. The learned Lawyer appearing for the State submits that deceased was submitted to physical and mental torture and the same is proved by the evidence of P. Ws. 3,5 and 6 as well as by the declaration of the deceased. The deceased victim had not only made her dying declaration before the learned Magistrate but she repeated her statement before her mother and brother being P. Ws. 3, 5 and 6. Immediately after admission to the hospital she made a statement before the Sub- Inspector of Police on the basis of which this prosecution has been initiated. In pursuance of the order of the Court the dying declaration was recorded by the learned Magistrate in presence of Doctor and Nurse. Therefore, there is no infirmity and illegality in accepting the dying declaration as sole piece of evidence without any corroboration. He submits that it is settled law, that conviction can be recorded on the basis of the dying declaration only after the contents thereof is found to be true and correct. Therefore, the judgment and sentence rendered by the learned Judge is perfectly justified and there is no reason to interfere with the same.
9. We have heard the respective submissions of the learned Lawers. In order to sustain the judgment and sentence we are to examine the following points :
(1) Whether or not the deceased victim was in a position to make dying declaration or not ?
(2) Whether the deceased victim out of her desire, and own volition made dying declaration or not ?
(3) Whether the learned Magistrate before obtaining such declaration was satisfied after complying with legal requirement that the deceased was in a position to record dying declaration ?
(4) Whether or not the learned trial Judge afforded reasonable opportunity to the accused to explain the alleged circumstances appearing against him under Section 313 of the Criminal Procedure Code or not ?
10. It is admitted position that the victim Tapati being the wife of the accused died of burn injury. This has also been proved by the evidence of P. W. 26 viz., Dr. Indrajit Roy who held post mortem examination on 28th February, 1985. He has proved without being cross-examined at all, that death was due to septic absorptia from infected ulcer resulting from burn injuries described above which are ante- mortem in nature. There is no eye-witnesses who could see the occurrence as to how the victim caught fire. In the statement allegedly made by the deceased on 25th February, 1985 which has been treated as F.I.R., it is alleged that the appellant poured kerosene oil on her body and kindled fire in order to burn her to death in their bed room at the first floor. Inside the room it is proved that the appellant was present. The P.Ws. 9,10,12 and 13 after having heard shouting of the deceased ‘fire’, ‘fire’, reached their bed room on the upstair. P.W. 21 being the elder brother of the accused/appellant rescued her. P.Ws. 9,10,12 and 13 were also present and helped P.W. 21 to rescue Tapati. Thereafter, she was removed and admitted to Medical College Hospital. She was removed by private taxi. Initially she was taken to R.G. Kar Medical Hospital, Calcutta where no bed was available. The evidence of PW 21 being the elder brother of the appellant and of P.W. 18 being the son of the appellant were not accepted by the learned trial Judge as they were declared hostile. It is settled law that the entire evidence of a hostil witness cannot be brushed aside but their evidences has to be taken with a grain of salt. It appears that the P. Ws. 18 and 21 made a statement before the Investigating Officer under Section 161 of the Criminal Procedure Code to the effect that having heard hue and cry of a voice of woman uttering ‘fire’, ‘fire’, he rushed to upstairs bedroom of the appellant and found the deceased victim was ablaze. The appellant himself extinguished fire by pouring water on person of deceased and then the deceased collapsed instantly and her entire body was burnt. The appellant did not sustain any burn injury and even he did not accompany P.W. 21 to get Tapati admitted to hospital. He stated that he could not see how did Tapati catch fire. He did not even enquire Madhab, appellant as to cause of occurrence of fire. As there was a kerosene stove lying nearby he stated to doctor that Tapati caught fire from the burning stove. He did not even ask Tapati the cause of occurrence of fire. He also stated before the Investigating Officer under Section 161 of the Criminal Procedure Code that there was frequent quarrel between his younger brother and Tapati. Sometime accused/appellant used to beat Tapati. Overall relationship between deceased and appellant was not cordial at all. This witness, however, in Court has denied having made any such statement before the police. In his evidence he has stated in Court that Tapati caught fire from burning stove. He asked Tapati to prepare tea for him and while making tea in a burning kerosene stove suddenly she caught fire. Having regard to this contradiction made by the aforesaid witness it would be thoroughly unsafe to accept any version of the above witness. Similarly, the son being P.W. 18 has deposed inconsistantly and/or contradictorily from the statement made under Section 161 of the Criminal Procedure Code. So his evidence cannot also be accepted, we do not accept the same also. The evidence of the brothers and mother of the deceased being P.Ws. 3,6 and 5 have no value so far the case of setting Tapati on fire by the accused/appellant is concerned. First of all it is very doubtful whether the victim having been adminis- tered with sedative injection like morphin (15 mg.) on 24th February, 1985 as evidenced by the Doctor being P.W. 25 was in a position to make such statement. P.W. 25 proves further that the patient became drowsy. There is no evidence that the learned Magistrate satisfied himself about capability of the deceased of making dying declaration.
11. So far the torture allegedly meted out by the appellant to the deceased is concerned the evidence of the aforesaid witness is admissible to some extent. But their evidences are of no value since such factum of cruelty allegedly meted out by the appellant/ accused long ago and there is no evidence to prove that there was any continuity and/or unbroken chain of allegation inflicting physical and mental cruelty as their marriage took place between the couple about 12 years ago. On the contrary, the P. W. 13 being an independent witness deposed that he never saw that the accused Madhab Ch. Bakuli physically torturing his wife being the victim. He has also stated that he never saw the accused Madhab Ch. Bakuli rebuking or using hot languages towards wife. Therefore, the evidence in form of dying declaration made before the learned Magistrate being Exhibit 15, as well as, the statement allegedly made by the victim before her mother and two brothers are to be examined how far the same are helpful to the prosecution. Apart from the dying declaration the alleged circumstances and other material evidences if any are also to be considered.
12. It is alleged on 25th February, 1985 in hospital Tapu made a statement for the first time before the Police Officer saying appellant set her on fire by pouring a quantity of half litre of kerosene oil over her head and by igniting fire with a match stick. In pursuance of this complaint the Investigating Officer initiated this proceeding treating the aforesaid statement as an F.I.R. It is a specific case that kerosene oil was poured on head of the deceased victim. It is, also the case that Tapati was wearing saree on the date of incident and saree also caught fire. No attempt has been made to seize the saree wore by Tapati. There is no evidence and /or explanation about disappearance of saree. It is not explained in evidence whether saree wore by Tapati was completely burnt and / or destroyed, or not. So had the saree, blouse and other wearing apparels been produced then smell of kerosene oil could certainly have been gathered. This is a mystery as to why the wearing apparels of the deceased victim were not produced nor traced. All the statements implicating accused allegedly made by the deceased either in presence of the police officials or in presence of her relations. It is surprising that none of the independent witness being the neighbours of the appellant/accused has said or proved who caused fire. Even Dr. Bhupali Roy in whose presence the statement was allegedly made by the victim was not called as witness to prove and/or corroborate the said statement. It is normal and natural human conduct that at the very first instance a victim must state who has set her on fire to every one who would be around her at that time if the same is done by any person other than herself. It is surprising, Tapati on 24th February, 1985 when she was rescued by the neighbours and the elder brother of the appellant did not utter any single word accusing the appellant having set her on fire. All that she stated and shouted ‘fire’, ‘fire’, ‘save me’. So this is absolutely unnatural that a victim would not at the first instance when she had her better power of sense make any statement before independent persons accusing the appellant. She made her statement accusing the appellant only on the following day before the police official. Thereafter on the same day she made the same statement before her mother and her brother. In our considered view the chances of said appellant being tutored is not ruled out here. We have no doubt the statement made for the first time before the police, and subsequently before her mother and two brothers are not at all voluntary statement otherwise she would not have remained silent on 24th February, 1985 immediately after occurrence of fire as such conduct is absolutely paradoxical to the human nature and conduct.
13. It is further doubtful whether the said deceased victim was in a state of mind to make such statement. P.W. 25 Dr. Yogesh Banshi who admitted the deceased victim at the casualty ward, deposed that extent of burn injury was 80%. Dr. Vibekananda Bhar, P.W. 4 deposed that the general condition of the victim was very poor, pulose feeble, and 90% burn injury. On the date of admission she was administered sedative injection and medicines. The condition never improved. So it was very unlikely that the patient having 80% to 90% burn injuries and having remained under influence of sedative medicines continuously could form rational judgment or could make any statement. The decision of Division Bench of the Delhi High Court reported in 1997 Cr. LJ (Delhi) 372 has held amongst other that is case of 100% injury. It is unlikely that a patient can make any dying declaration or for that matter can put thumb impression and the presence of alleged thumb impression casts a doubt on the prosecution case. So we are unable to accept the statement made be Tapati before the police officials and before her relations, viz. mother and two brothers as a piece of evidence to prove the case of the prosecution. There are strong circumstances which raise serious doubt as to capability of the deceased Tapati to make any statement.
14. So far the dying declaration allegedly recorded by P.W. 23 with the help of P.W. 24 is concerned we find that there is no evidence that the learned Magistrate satisfied himself as to whether deceased was in a condition to make any statement or not. He relied on the version and certificate of P.W. 24 being the doctor who allegedly stated that the deceased was capable of making simple statement. The concerned doctor, viz., Dr. Vivekananda Bhar being P.W. 24 in his evidence has not stated that he had examined the patient being the deceased. On the contrary, he had stated that he did not feel the pulse nor examined the condition of the deceased victim. He certified the capability of the deceased victim in making simple statement on the basis of presumption. Admittedly, this Doctor was not on duty on the date at the Casualty Block, but at the surgery unit. This Doctor never treated deceased victim admittedly. It is surprising the Doctors viz., P.W. 25 and P.W. 4 who were attached to the Casualty Unit and Emergency Unit, and treated and examined the victim during relevant time, were not asked for their assistance to record dying declaration by obtaining certification of fitness of the deceased. The learned Magistrate, P.W. 23 did not satisfy himself as to the mental state of declarant, when the victim sustained 80% to 90% burn injuries. The decision of Allahabad High Court reported in 1996 Cr. LJ 1507 has held amongst other that it is the bounden duty of the learned Magistrate to satisfy himself before recording the dying declaration that she was really in a fit mental state. It has been further help that amongst other ‘mere’ ipse dixit of the Doctor that the patient was fully conscious and able to give dying declaration was not enough for the satisfaction of the learned Magistrate. So he could not say the mental and physical condition of the patient without examining the victim. The staff nurse Pratima Das, P.W. 25 could not even say in her evidence that who did take down dying declaration form deceased. She could not identify nor could remember whether Doctor or the learned Magistrate was present. She stated that the deceased victim was not in a position to put her thumb impression. She took her left hand and got her thumb impression to be put. This is how the Exhibit 15 was obtained.
15. We are in respectful agreement with the above decision of Allahabad High Court (supra) and relying on the same we hold that this place of dying declaration is not acceptable as a only piece of evidence for recording conviction. On the contrary, there are other strong attendant circumstances which raise a serious doubt in the prosecution story of killing the deceased victim by setting her on fire pouring kerosene oil. The wearing apparels of the deceased victim were not traced nor produced. It appears from the records that doors were opened from inside by the appellant himself. Appellant extinguished fire by pouring water over person and body of deceased. Had the appellant any intention to kill Tapati by setting fire then he certainly would not have opened the door and poured water to extinguish fire. Immediately after occurrence Tapati did not make any statement before the neighbours and the elder brother of accused Madhab accusing the appellant. So in our view these unexplained circumstances writ large in creating suspicion of the prosecution story.
16. It is surprising that the learned trial Judge has not put any question under Section 313 of the Criminal Procedure Code on the point of dying declaration and unexplained circumstances though the conviction has been recorded on the aforesaid basis alone. This is in our view serious lapses which vitiate the trial. So relying on the decision of the Division Bench of this Court reported in (1997) 1 Cal. HN 315 we are unable to accept this judgment and sentence recording conviction of life imprisonment.
17. So far the charge under Section 498A of the Indian Penal Code, is concerned the same has not been proved at all. The learned trial Judge, however, very perfunctorily and casually dealt with the matter. The learned trial Judge without examining and scrutinising the aforesaid situation and evidence has accepted the dying declaration to be an unimpeachable evidence for recording conviction. The learned trial Judge further proceeded on a wrong footing by recording the defence has not been able to dismantle the unspecified circumstances with particulars and other evidences of the prosecution. It is for the prosecution to prove beyond reasonable doubt and not for the defence to disprove the case. The Court is to see whether any doubt or suspicion is prevailing in a case or not. We have already indicated as to the doubts and suspicions in the version of the prosecution case. So, we have no opinion but to set aside the findings and sentence of the learned trial Judge. Accordingly, we do so.
18. We allow the appeal. The appellant be forthwith enlarged from jail if he is not wanted otherwise in any other cases.
Surya Kumar Tiwari, J.
19. I entirely agree with the opinion recorded by my learned Brother that the appeal deserves to be allowed. However, I only want to point out that the two dying declarations recorded on 25.2.1985 appeared to be given either under the influence of sedatives administered to the victim or upon tutoring by the mother or other relations from the mother’s side of the victim. Exhibit 12 / 6 is the bed head ticket of the victim which contains the case history given by her at the time of her admission in the hospital on 24.2.1985. The victim stated to the Doctor that while she lighted the stove for cooking meal, it burst and her sari caught fire. This earliest story narrated to the physician is just opposite to what was stated to Police Officer and Magistrate on 25.2.1985. The subsequent, therefore, cannot be believed.