IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon’ble Justice Md. Mumtaz Khan
The Hon’ble Justice Jay Sengupta
CRA 174 of 2009
Pear Sk. Anr.
Vs.
The State of West Bengal
For the appellants : Md. Asraf Ali
Ms. Sabnam Laskar
For the State : Mr. Ranabir Roy Chowdhury,
Mr. Mainak Gupta
Heard finally on : 20.06.2019
Judgment on : 01.08.2019.
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellants assailing the
judgment, order of conviction and sentence dated February 9, 2009 and
February 10, 2009 respectively passed by the learned Additional District
and Sessions Judge, Fast Track II Court, Rampurhat in Sessions Trial
No. 22 of 2009 arising out of Sessions Case No. 15 of 2003 whereby
appellants were convicted for the commission of the offence punishable
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under Sections 302/ Section34 of the Indian Penal Code (hereinafter in short
referred to as the SectionIPC)and were sentenced to suffer imprisonment for life
and also to pay fine of Rs. 5,000/- each in default to suffer imprisonment
for one year more with a direction for set off in terms of provisions of
Section 428 of the Code of Criminal Procedure (hereinafter referred to as
Cr. P.C.). They were acquitted from the charge for the offence punishable
under Section 498 A IPC.
The prosecution case, in brief, is as follows:
On August 1, 1999 at about 21.30 hrs, PW 1, step-father of the
victim, lodged a written complaint at the Rampurhat Police Station to the
effect that his daughter (victim) was given in marriage with the appellant
No. 1 about seven and half years ago and of their wedlock two children
were born. On July 30, 1999 at about 09.00 hrs victim’s
husband(appellant no.1) and mother-in-law(appellant no.2) assaulted the
victim severely and thereafter, appellant No.2, Fulkara Bibi, sprinkled
kerosene oil on the person of his daughter and appellant No. 1, Pear Sk.
with match stick set her on fire. Thereafter villagers came running and
admitted her in the hospital. It was also informed that the appellant No.
1 was admitted at the Rampurhat Sub Divisional Hospital for his
injuries. He then informed the Magistrate who came to the Hospital and
recorded the statement of victim. Thereafter, his daughter during her
treatment at the Hospital succumbed to her injuries on August 1, 1999.
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On the basis of the above written complaint, Rampurhat Police
Station Case No. 92 dated August 1, 1999 was started against the
appellants under Sections 307/ Section302/Section34 IPC and the case was endorsed
to PW 10 for investigation who investigated the same. Thereafter, case
was investigated by PW13, PW9 and finally by PW12 who then after
completion of investigation submitted charge sheet against the
appellants.
On August 2, 1999, PW10 held inquest over the dead body of
the victim at the Rampurhat Hospital Police Morgue in presence of PW 1,
PW3, PW17 and one Abdul Latib and prepared a report (Ex. 2/A). During
inquest he found skin of the deceased from the face to feet and also the
skin on the backside from below the hair of the head to the heel were
burnt and save and except burn injuries he did not find any such mark
of other injury. During inquest the names of the appellants surfaced to
be the persons who set fire to the victim after pouring kerosene oil.
On the same date, PW 4 conducted postmortem examination over
the dead body of the victim and found superficial burn extending from
head to heal excepting behind both knee joints, blackening, charring of
skin with few blister formation seen at places. On puncturing the blisters
the underlying tissues were seen reddened. Red lines were seen between
healthy and burnt areas, hairs were singed, tracheal soots were present.
Cherry red colour blood was seen on dissecting vessels. No external
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injury was seen except burn injury. According to the doctor, the cause of
death was due to extreme shock from aforesaid burn injuries which was
ante mortem and might be accidental in nature. After the postmortem
examination P.W.4 prepared a report (Ex. 5).
On March 11, 2004, charges under Sections 498A/ Section302 read with
Section 34 of the IPC were framed against the appellants and on their
pleading not guilty to the charges, trial commenced.
Prosecution in order to prove the case, examined 13 witnesses and
also produced and proved the written complaint, formal FIR, inquest
report, postmortem report, rough sketch map with index, seizure list,
admission ticket, bed-head ticket, dying declarations etc. and thereafter
on completion of trial and after examination of the appellants under
Sectionsection 313 Cr.P.C. learned trial judge passed the impugned judgment.
Mr. Asraf Ali, learned Advocate appearing for the appellants, submitted
that the impugned judgment, order of conviction and sentence are not
sustainable in law due to delay in lodging the FIR, non examination of
the charge-sheet witnesses Soma Let and Razia Bibi who got the victim
admitted in the hospital, the Staff Nurse and Dr. K.K. Mondal reported to
be witnesses for the dying declaration, fire brigade personnel or villagers,
absence of any definite opinion of the Autopsy Surgeon with regard to the
cause of death, doubt with regard to the recording of dying declarations
recorded either by the doctor or by the Executive Magistrate as the same
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do not figure in the inquest report though prepared in presence of PW1
amongst other. According to Mr. Asraf Ali, prosecution has failed to
prove the charge of murder against the appellants beyond any shadow of
doubt.
Mr. Ranabir Roy Chowdhury, learned Advocate appearing for the State
submitted that the delay in sending the FIR will not make the entire case
of the prosecution doubtful and furthermore, no such point was raised to
the Investigating Officer during trial. He admitted that the dying
declaration (Ex. 9) was recorded in the bed-head ticket and the doctor
who gave certificate as to mental fitness of the victim was not examined
but due to the same dying declaration can not become unacceptable as
the doctor who attended the victim recorded the first dying declaration in
the bed head ticket was duly examined as P.W.11 and he himself found
the victim mentally fit to make dying declaration. He also submitted that
the dying declaration recorded by Magistrate was proved by the
Magistrate (PW8) himself and the same was corroborated by PW5, mother
of the victim and there is no evidence on record that either the doctor or
the Magistrate had any such animosity to implicate the appellants. He
further submitted that though the step father of the victim and the FIR
maker as also the biological father of the victim turned hostile but that
will not render the prosecution case doubtful. He also submitted that the
appellants during their examinations under Section 313 Cr. P.C. save
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and except taking the plea of innocence did not explain how the victim
sustained burn injuries on her person. According to Mr. Roy Chowdhury,
prosecution has been able to prove the charge of murder against the
appellants beyond all reasonable doubts and the learned Trial Judge was
quite justified in passing the impugned judgment.
Mr. Roy Chowdhury relied the decision of Ravi Chander and others
Vs. State of Punjab reported in 1998 (9) SCC 303 and of Laxman Vs. State
of Maharashtra reported in 2002 SCC (Cri) 1491 in support of his
submissions.
We have considered the submissions of the learned Advocates
appearing for the respective parties and have gone through the evidence
and the documents on record to consider the propriety of the impugned
judgment.
It is not in dispute rather admitted position that the death of the
victim was unnatural and she died at Rampurhat Sub-Divisional
Hospital due to burn injuries. PW4 the Autopsy Surgeon during
postmortem examination also found superficial burn extending from
head to feet excepting behind both knee joint, blackening, scarring of
skin with few blister formation seen at places and on puncturing the
blisters the underlying tissues seen redden and accordingly opined that
the cause of death was due to extreme shock from the aforesaid burn
injuries which were ante mortem and might be accidental in nature.
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PW1 is the step father of the victim and FIR maker. He has simply
deposed that on 30.07. 1999, victim was hospitalized and she died on
August 1, 1999 at about 3.00 p.m. due to burn injuries. He heard victim
made statement to the Magistrate but cannot say what she has stated to
the Magistrate. He identified the written complaint (Ex.1) lodged by him.
He also identified his signature (Ex. 2) on the inquest report. He also
identified his signature (Ex. 3) on the statement of the victim. He was
declared hostile by the prosecution as he did not support the prosecution
case.
PW 2 is the Home Guard who took the dead body of the victim at
the Rampurhat Sub Divisional Hospital Morgue for post mortem
examination.
PW 3 is the witness to the inquest. According to him he heard that
victim got burn injuries and died. He was also declared hostile by the
prosecution as he did not support the prosecution case and was cross-
examined by the prosecution and was challenged that during
investigation he stated to the investigating officer that he came know
from Soleman Sk. (P.W.1) that on the date of incident the husband and
mother-in-law of Sohar Banu (victim) assaulted her and set her on fire
after sprinkling kerosene oil which he denied but from the evidence of
P.W.9 it appears that he stated all these to him during investigation.
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PW 4 is the autopsy surgeon who conducted postmortem
examination over the dead body to the victim.
PW 5 is the mother of the victim and presently wife of PW 1.
Previously she was married with P.W.6, brother of PW1. Victim was
borne of wed-lock of P.W.5 and Bhuluk Sk (P.W.6), brother of PW1. She
has deposed that mother in law of the victim (appellant No.2) sprinkled
kerosene oil on the person of the victim and her husband Pear Sk.
(appellant No.1) set her on fire resulting in her death. Victim made
statement before the Magistrate in her presence in the hospital and told
that her mother-in-law sprinkled kerosene oil on her body and her
husband set her on fire and after recording of the statement both she
and the victim put their LTI thereon. During cross examination by the
defence she clearly stated that on getting information of burning of the
victim they went to the hospital and she was all along with the victim in
the hospital till her death. She also went to the police station and
narrated the incident. She admitted that appellant No. 1 also got burn
injury and was treated in that hospital but under police guard.
PW6 is the biological father of the victim. He was declared hostile
by the prosecution as did not support the prosecution case though
during cross examination by the prosecution admitted that he stated to
the police that on being informed about the incident of burning he along
with PW 1 and PW5 went to Rampurhat Sub-Divisional Hospital and
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found the victim with burn injuries. He also admitted that he stated to
the Police that on the date of incident an altercation took place between
the victim and her husband and at that time mother-in-law of the victim
sprinkled kerosene oil on the victim and her husband set her on fire and
that victim also stated this to the Magistrate, which he came to know
from PW5 and PW1 who were present at the time of making statement by
the victim.
P.W.7 is also a witness to the inquest. According to him, he came
to know from the mother of the victim that appellant No.2 sprinkled
kerosene oil on the victim and appellant no. 1 set her on fire and victim
made statement before Magistrate. During cross examination he deposed
that PW 1 informed him about the incident at about 12.00 noon over
telephone and he found mother of the victim sitting beside the victim in
the Hospital and PW 1 was also present in the hospital on that date. He
had talk with the victim and at that time no doctor or Nurse was present.
PW 8 is the executive Magistrate who recorded the dying
declaration of the victim in the Hospital. According to him, on July 30,
1999 in between 04.00 p.m. to 4.35 p.m. he recorded the dying
declaration of the victim in the Hospital. Patient was identified by the
Staff Nurse Jharna Mondal and Dr. K.K. Mondal of that Hospital certified
that the patient was conscious and fit to give dying declaration. He
identified the signature and endorsement of Dr. K.K. Mondal (Ex. 3/1).
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He also deposed that he also found that patient was capable enough and
fit to make her statements. On his query victim told that quarrel took
place with her husband leading to a dispute of going of her son to school,
then at that time her mother-in-law poured kerosene oil on her body and
her husband set fire on her body. After recording of the statement,
victim put her thumb impression in his presence and it was identified by
the pen of PW 1 in his presence. At the time of recording of dying
declaration mother of the victim (PW5) was present and she stated that
her son-in-law usually perpetrated torture and assault on her daughter
and that he married another woman. He also recorded her statement and
she put her LTI which was attested by PW1 who was also present at the
time of making of dying declaration. He identified the signature of PW1
(Ex.3/2) on the statement. He identified the dying declaration recorded
by him (Ex. 3/3). During cross examination he clearly stated that on his
arrival at the room of the Hospital where the victim was admitted he
found Dr. K.K. Mondal and Staff Nurse Jharna Mondal in the room and
except them no other staff of the Hospital was present. He did not agree
to the defence suggestion that the victim was not in a sound state of
mind to make any statement and the statement in question was not
made by the victim.
P.W.9, P.W.10, P.W.12 and P.W.13 are the investigating officers
of this case. P.W.13, the officer-in-charge of Rampurhat P.S., after
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drawing up the FIR entrusted the case to P.W.10 for investigation who
then investigated the case since 1.8.99 to 17.45 hrs. of 2.8.99.
Thereafter, P.W.13 as per order of Circle Inspector of police Rampurhat
took up investigation of the case. P.W.13 then investigated the case and
thereafter, on account of his transfer he made over Case Diary to P.W.9
for investigation. P.W.9 then investigated the case and on his transfer he
made over case to P.W.12. P.W.12 then investigated the case and after
completion of investigation submitted charge-sheet against the
appellants.
PW 11 is the Medical Officer of Rampurhat Sub Divisional Hospital
who provided treatment to the victim and recorded her statement with
regard to sustaining of her burn injuries.
Admittedly, none of the witnesses examined by the prosecution are
the witness to the occurrence and the entire case of the prosecution is
based on the dying declaration of the victim, one recorded by the
attending doctor (P.W.11) in the morning on the day of her admission in
the hospital on July 30, 1999 and the other one by an Executive
Magistrate (P.W.8) also on the same date in between 04.00 p.m. to 4.35
p.m.
With regard to the dying declaration, it is well-settled that
importance of a dying declaration is that such declaration is made in
extremity when the party is at the point of death and when every hope of
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this world is gone and every motive to falsehood is silenced and such
declaration was made in a fit state of mind and was not as a result of
either tutoring or prompting or a product of imagination. Reference may
be made to the decision of a Constitution Bench in the matter of SectionLaxman
vs. State of Maharashtra, reported in (2002) 6 SCC 710.
It is now well settled proposition of law that that conviction can be
recorded on the basis of a dying declaration alone, if the same is wholly
reliable. It is also well known that in a case where inconsistencies in the
dying declarations, in relation to the active role played by one or the
other accused persons, exist, the court shall lean more towards the first
dying declaration than the second one. Reference may be made to the
decision of SectionRanjit Singh Ors. vs. State of Punjab, reported in (2006) 13
SCC 130.
In the case at hand, we find from the evidence on record that the
victim was admitted in the Rampurhat Sub-Divisional Hospital on July
30, 1999 for burn injuries on her person and she ultimately succumbed
to her injuries on 1st August, 1999. P.W.11, the Medical Officer of
Rampurhat Sub Divisional Hospital, has specifically deposed that the
victim Sahar Banu Bibi was admitted in the female surgical ward of
Rampur SD Hospital on July 30, 1999 for her burn injuries on her
person and she was under his treatment from July 30, 1999 to July 31,
1999. He has also deposed that victim stated before him that as a result
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of quarrel her mother-in-law poured kerosene oil on her body and her
husband put fire on her body at their residence on that date at about
7.30 a.m. and he noted that statements on the treatment sheet and also
wrote about the treatment given to the patient on the bed head ticket
(Ext.9) as attending physician. He admitted during cross that he has not
noted the pulse rate or the blood pressure of the victim or the percentage
of burn injuries on the bed head ticket but clearly stated that he gave
medical treatment to the victim on the basis of his experience and
observation with open eyes only. He did not agree to the defence
suggestion that the patient was not capable of making any statement
before him nor she made any statement to him.
We also find from the evidence on record that mother of the victim
(P.W.5) has also made claim of making dying declaration by the victim to
the Magistrate in her presence in the hospital. PW 8,the then Deputy
Magistrate and Collector of Rampurhat, has deposed that on July 30,
1999 in between 04.00 p.m. to 4.35 p.m. he recorded the dying
declaration of the victim as per the order of the Sub Divisional Officer as
well as requisition from the Police Station. The patient was identified by
the Staff Nurse Jharna Mondal and he recorded the statement in that
Hospital and Dr. K.K. Mondal of that Hospital certified that the patient
was conscious and fit to give dying declaration. He identified the
signature and endorsement of that doctor (Ex. 3/1). He further deposed
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that he also found that patient was capable enough and fit to make her
statements. On his query victim Sahar Banu deposed that a quarrel was
taken place with her husband over a dispute of going of her son to
school, then at that time her mother-in-law poured kerosene oil on her
body and her husband set fire on her body. After recording the
statement, victim put her thumb impression in his presence and it was
identified by the pen of PW 1 in his presence. He also deposed that at the
time of recording of dying declaration mother of the victim (PW5) was
present and she stated that her son-in-law usually perpetrated torture
and assault on her daughter and he married another woman. He also
recorded her statement and she put her LTI which was attested by PW1
who was also present at the time of making of dying declaration. He
identified the signature of PW1 (Ex.3/2) on the statement. He identified
the dying declaration (Ex. 3/3) stating that it was recorded by him in his
handwriting and signature. During cross- examination he stated that on
his arrival at the room of the Hospital where the victim was admitted he
found Dr. K.K. Mondal and Staff Nurse Jharna Mondal in the room and
except them no other staff of the Hospital was present. He did not agree
to the defence suggestion that the victim was not in a sound state of
mind and physical condition to make any statement and that the said
statement was not made by the victim.
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The above statement of P.W.8 also finds corroboration from the
mother of the victim (P.W.5). P.W.5 too has deposed that mother-in-law
of the victim (Appellant no.2) sprinkled kerosene oil on the body of her
daughter and her husband (Appellant no. 1) set her on fire and she died
in Rampur Hospital. Her daughter made statement to the Magistrate in
her presence and told that her mother-in-law has sprinkled kerosene oil
on her body and her husband set her fire and after recording of such
statement of the victim both she and victim put their LTI on the same.
During cross she admitted that she got information of the burning of her
daughter at her residence in presence of her husband (P.W.1) and her
children. They then went to the hospital and thereafter went to the P.S.
where she narrated the incident and her husband was also examined by
police and then police told that that the statement of the victim would be
recorded. They then went to the court of SDO and narrated the incident
to him. She also clearly stated that she was all along with the victim till
her death in the hospital. Interestingly she was not challenged by the
defence that she was not present at the hospital at the time of recording
of the statement of the victim nor the victim made any statement to the
Magistrate (P.W.8) in her presence. She was also not challenged by the
defence that the victim was not in a position to talk or to make any
statement. P.W.1, step-father of the victim and the FIR maker who was
subsequently declared hostile by the prosecution has deposed that on
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30.07. 1999 victim was hospitalized and she died on August 1, 1999 at
about 3.00 p.m. due to burn injuries. He heard victim made statement to
the Magistrate but could not say what she has stated to the Magistrate.
He identified his signature (Ex. 3) on the statement of the victim. He was
declared hostile by the prosecution as he did not support the prosecution
case. Interestingly no suggestion was put to him from the side of the
defence that the victim did not make any statement in his presence nor
he signed on the statement of the victim. Even no suggestion was put to
him that the victim was not in a position to make any statement and/or
that no such statement of the victim was recorded by the Magistrate in
his presence.
Under the circumstances, there appears no reason why the
statement of P.W.8, the Executive Magistrate, shall not be believed.
Furthermore, Executive Magistrate is a disinterested witness and there is
no material on record to suspect that he has animus against the
appellants or was in any way interested in fabricating the dying
declaration. The dying declaration recorded by the Executive Magistrate
(Ext.3/3) tallies with the dying declaration recorded by the doctor on the
Bed-Head Ticket (Ext.9). Even nothing was brought out on record to
suspect that the doctor had animus against the appellants. It is well
settled that a dying declaration can be oral or in writing and if recorded
in writing there is no specified statutory form for such recording. So, the
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statement/dying declaration of the victim recorded by the attending
doctor even on the bed-head ticket can be acceptable.
It is true that the inquest report is silent with regard to
recording of any dying declaration but we do not find any merit in the
submissions of the learned Advocate for the appellants that for such
omission the very existence of dying declarations be doubted. The basic
purpose of holding an inquest is to report regarding the apparent cause
of death, namely, whether it is suicidal, homicidal, accidental or by some
machinery etc. The section does not contemplate that the manner in
which the incident took place or the evidences on which the prosecution
will rely should figure in the inquest report.
Regarding non-examination of charge-sheet witnesses Soma Let
and Razia Bibi who got the victim admitted in the hospital or the Staff
Nurse in whose presence dying declaration was recorded by the
Magistrate and Dr. K.K. Mondal who gave the certificate (Ext.3/1) with
regard to patient’s mental fitness to make dying declaration, we find from
the evidence of P.W.11, the attending doctor, that he on finding the
patient conscious and fit recorded her statements. On being challenged
by the defence that the patient was not capable of making any statement
before him nor she made any statement to him, he did not agree. P.W.8,
the Executive Magistrate also specifically deposed that he too found that
patient was capable enough and fit to make her statements. Nothing was
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brought out on record to suspect that the doctor (P.W.11) or the
Executive Magistrate (P.W.8) had any animus against the appellants. In
such circumstances, non examination of the above witnesses can not
render the dying declarations unacceptable. Similarly, non-examination
of fire brigade personnel or any villagers will not make the prosecution
case doubtful as the case of the prosecution is based on dying
declaration of the victim and for that matter above witnesses have no role
to play. Furthermore, even we accept that the house of the appellants
also got burnt due to fire and the appellant no.1 too had to be
hospitalized due to burn injuries but there is nothing on record to
suggest that the victim had any role to play for such fire or the house
caught fire by other means. Even the appellants did not take any such
defence during trial or their examination under Section 313 Cr.P.C. save
and except taking the plea of innocence. They did not even adduce any
defence witness.
Therefore, the impugned judgment does not require our
interference on the above grounds.
Regarding the submission that there was delay in lodging the FIR,
we find from the record that incident of burning took place on July
30,1999 at the matrimonial home of the victim within the jurisdiction of
Rampurhat P.S. The FIR maker (P.W.1) is the resident under the
jurisdiction of Moregram P.S. On getting the news of the incident mother
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of the victim (P.W.5) and her step-father (P.W.1) came rushing to the
hospital where the victim was hospitalized and thereafter went to the P.S.
and also took initiative so that the victim’s dying declaration was
recorded. It has come out from the evidence that they regularly visited
the hospital as the condition of the victim was very serious and
ultimately victim succumbed to her injuries. So, considering the serious
condition of the victim it was expected that they were very much anxious
and might have remained busy for her treatment and when the very hope
of survival of the victim was lost they approached the P.S. Moreover,
according to the settled principle of law mere delay in lodging FIR will not
necessarily be fatal to the case of the prosecution. After, taking into
account the facts and circumstances of this case in the light of the
totality of evidences on record we are of the opinion that the delay as
pointed out was not fatal to the prosecution case.
Therefore, our interference with the impugned judgment is not
required on the above ground.
Therefore, taking into consideration the facts and circumstances
on the basis of which the impugned judgment is passed, we are of the
opinion that the impugned judgment does not require our interference on
the above grounds in view of the settled propositions of law as discussed
herein above.
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We, therefore, dismiss the appeal and affirm the conviction and
sentence imposed on the appellants.
A copy of this judgment along with the Lower Court Records may
be sent down to the learned Trial Court forthwith.
Urgent photostat certified copy of this judgement, if applied for, be
given to the parties, as expeditiously as possible, upon compliance with
the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.)
(Jay Sengupta, J.)