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Nakul Das-vs-State Of West Bengal on 30 January, 2004

Calcutta High Court Nakul Das-vs-State Of West Bengal on 30 January, 2004
Equivalent citations:2004 (2) CHN 419
Author: A K Basu
Bench: A Talukdar, A K Basu

JUDGMENT

Alok Kumar Basu, J.

1. Nakul Das, the sole appellant from jail preferred this appeal challenging the judgment and order of learned Additional Sessions Judge, 3rd Court, Alipore passed in connection with S.T. No. 2(5)/1999 corresponding to S.C. No. 16(9) 1998 arising out of G. R. Case No. 2670/1996 relating to Chitpore P. S. Case No. 333 dated 10th November, 1996 whereby the appellant was convicted under Section 302 of the I.P.C. for murder of his wife Sabitri Das and was sentenced to suffer imprisonment for life and also to pay a fine of Rs. 10,000/- in default rigorous imprisonment for two years.

2. On 10.11.1996 at about 6.40 p.m. Sabitri Das, wife of the appellant was brought to emergency unit of R. G. Kar Hospital by the appellant and his neighbours with hundred per cent burn injuries on her body. The prosecution case is that soon after admission in the emergency unit, Sabitri Das gave a statement to the attending doctor that on 10.11.1996 at about 6.15 p.m. she was assaulted by her husband and thereafter her husband after pouring kerosene oil on her body put fire resulting her injuries. It is the prosecution case that on 10.11.1996 Sabitri Das also gave a statement to Sub-Inspector Faiyaz Ahmed of Chitpore P. S. in presence of an attending doctor and that statement of Sabitri Das was treated as F.I.R. to start Chitpore P.S. Case No. 333 dated 10.11.1996.

3. It is the prosecution case that on 11.11,1996 Sabitri Das also gave a statement mentioning therein the involvement of the appellant in presence of two other doctors of R.G. Kar Hospital and Sabitri Das ultimately died on 11.11.1996.

4. After starting of the case under Section 498A/302 of the I.P.C. Sub-Inspector Faiyaz Ahmed started the investigation and in course of investigation he examined the witnesses, collected post-mortem report, bed head tickets of the victim and thereafter submitted chargesheet against the appellant under Section 498A/302 of the I.P.C.

5. During trial before the learned Additional Sessions Judge charge was framed under Section 302 of the I.P.C. and the extract of the charge was that appellant subjected Sabitri Das to both physical and mental torture and finally poured kerosene oil and set fire on her person and thus, appellant committed murder of the said Sabitri Das.

6. The appellant denied the charge and pleaded his innocence and claimed for trial. The prosecution examined in all 15 witnesses during trial. Among the prosecution witnesses, P.Ws. 2, 3 and 5 were the local people and neighbours of the appellant and they were also witnesses to the seizures made by the I.O. in course of investigation. P.W. 8 is the mother of victim Sabitri Das while P.W. 12 is the son of the appellant who was present in the room when her mother sustained burn injuries, P.W. 9 is Dr. Sruti Kumar Bera who examined the victim soon after her admission in the hospital and according to prosecution the victim gave her first statement implicating the appellant before this doctor. P.W. 13 is Dr. Sukumar Mondal in whose presence according to prosecution the victim gave a statement recorded by S.I. Faiyaz Ahmed which was treated as F.I.R. and which was considered to be dying declaration of the victim. P.W. 11 Dr. Sushil Ranjan Ghosal and P.W. 14 is Dr. Bhaskar Chakraborty and it is the prosecution case that on 11.11.1996 the victim again gave a statement which was recorded by Dr. Bhaskar Chakraborty and in that statement victim narrated the earlier statement with the further addition that the motive behind the act of appellant was that of marrying another woman with whom he was involved. P.W. 15 is S.I. Faiyaz Ahmed who recorded the statement of victim on 10.11.1996 and who is the Investigating Officer of the case.

7. On perusal of the judgment of the learned Additional Sessions Judge impugned in this appeal it is found that the learned Judge relied not the statement of victim which was recorded by P.W. 15 Faiyaz Ahmed in presence of Dr. Sukumar Mondal and which was treated as F.I.R. of the case. The learned Sessions Judge also took into consideration of first statement given by the victim soon after her admission before Dr. Bera and also the statement recorded by Dr. Bhaskar Chakraborty on 11.11.1996 in presence of senior Dr. Ghosal. The learned Judge also took into consideration the statement of P.W. 8, the mother of the victim who during her examination by the I.O. in course of investigation stated about ill-treatment and assault of the victim in the hands of the appellant and also disclosed that the victim herself stated before her at the hospital that it was the appellant who poured kerosene oil on her body and set fire. This P.W. 8 narrated the same before the Court during her examination.

8. It appears from the judgment impugned in this appeal that it was argued on behalf of the appellant that victim herself poured kerosene on her person and set fire and the appellant with the help of his neighbours brought the victim to the R.G Kar Hospital for necessary treatment. It was argued on behalf of the appellant before the learned Trial Judge that as the victim suffered hundred per cent burn injuries and her body was almost charred, it was totally impossible for her to make any statement and the statement recorded by Dr. Bera was totally the result of his imagination and surmise. It was also argued on behalf of the appellant that the statement recorded by S.I. Faiyaz Ahmed in presence of Dr. Sukumar Mondal cannot be accepted as dying declaration simply because there was no certificate from the doctor regarding physical capability and mental fitness of the victim who made such statement who admittedly suffered hundred per cent burn injuries. It was further argued on behalf of the appellant that on 11.11.1996 during examination of the victim by Dr. Ghosal in presence of Dr. Chakraborty, the victim was totally unconscious and naturally it was not possible for her to make any statement and it is pertinent to mention that victim succumbed to her injuries on 11.11.1996.

9. The learned Additional Sessions Judge after considering submissions of both the defence as well as the prosecution came to the conclusion that it is the settled position of law that in all cases of dying declaration no certificate regarding physical capability and mental fitness of the victim is required, because the issuance of certificate is a matter of abundant precaution and the Court is required to examine whether such statement would satisfy the conscience of the Court and whether it was at all probable to make such statement in the given facts and circumstances. The learned Additional Trial Judge, therefore, placed his full reliance on the statement of the victim given before the I.O. which was according to the learned Additional Trial Judge sufficiently corroborated by the earlier statement of the victim given to Dr. Bera and subsequent statement of the victim given to Dr. Ghosal and Dr. Chakraborty on 11.11.1996. The learned Additional Sessions Judge also placed strong reliance on the deposition of P.W. 8 Janki Devi, the mother of the victim.

10. In course of hearing of this appeal, the learned Advocate appearing for the appellant submits before us that it will appear from the evidence recorded by the learned Trial Judge that on 10.11.1996 at about 6.15 p.m. the occurrence took place and soon thereafter the appellant with the help of his neighbours who figure as P.Ws. 2, 3 and 5 brought the victim to the emergency unit of R.G. Kar Hospital and it is available from evidence of all the doctors and neighbours that victim suffered hundred per cent burn injuries.

11. The learned Advocate for the appellant submits that it was totally impossible for the victim to make any statement soon after her admission and the statement recorded by Dr. Bera was simply the brain child of Dr. Bera and further such statement cannot be accepted at all as no other person was present at the time of making such statement and it is highly improbable that a female patient would be attended by a male doctor without any female nurse, but, Dr. Bera while recording his statement did not mention about presence of any nurse while recording the statement of the victim and this reasonably creates disbelief and doubt in our mind to accept the statement recorded by Dr. Bera as true and correct.

12. The learned Advocate for the appellant next submits that I. O. of the case while recording the statement of the victim did not call for any certificate from the attending doctor regarding the physical capability and mental fitness of the victim to make such statement and here also there was no nurse present at the time recording the statement which creates strong suspicion in the mind of any reasonable man.

13. The learned Advocate for the appellant contends that although no certificate regarding physical capability and mental fitness of a deponent would be required in each and every case, but the Court must be satisfied about the sanctity and genuineness of the statement and if there is any scope of doubt regarding genuineness of the statement given by a person who is no longer on the earth of living, the Court should be reluctant to sustain an order of conviction relying on such

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