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Sajahan Sk vs The State Of West Bengal on 22 July, 2019

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Manojit Mandal

CRA 747 of 2014

SectionSajahan Sk.

v.

The State of West Bengal

For the appellant : Mr. Partha Sarathi Bhattacharyya

Ms. Mitali Mukherjee

For the State : Mr. Saibal Bapuli, Ld. A.P.P

Mr. Bibaswan Bhattacharyya

Heard on : 09.07.2019

Judgment on : 22.07.2019

Manojit Mandal J.

This appeal is directed against the judgment and order of

conviction and sentence dated 30.10.2014 and 31.10.2014 passed by the

learned Additional Sessions Judge, Bolpur, Birbhum in Sessions Trial No.

06 (April) 2014 arising out of Sessions Case No. 115 of 2013 convicting the
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appellant under Section 302 of the Indian Penal Code and sentencing him

to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five

Thousand) only.

2. In order to appreciate the rival contentions advanced by the parties

and issues involved, it is necessary to set out the facts of the case which

give rise to the present criminal appeal:-

Marriage was solemnized between deceased Manowara and appellant

as per Muslim Customs about 3 ½ years ago. Deceased Manowara died in

the hospital on 01.06.2012 while under treatment for burn injuries which

she had sustained on 23.05.2012. Appellant is the husband of the said

deceased. Informant Anwar Sk (PW 1) and Saleha Biwi (PW 2) are the

parents of the deceased. PW 3, PW 4, PW 7 and PW 8 are the neighbours

of the appellant. PW 5 is Sk Alenur who scribed the written complaint.

PW 6 is the medical officer of Bolpur Sub-Divisional Hospital who attended

the deceased as indoor patient. PW 9 Maitreyee Ganguli is a member of

West Bengal Executive Service who conducted inquest over the dead body

of deceased Manowara Biwi and proved the inquest report (Exbt.2) into

evidence. PW 10 is the Investigating Officer. PW 11 is the Medical Officer,

Dr.Debasish Sarkar who conducted post mortem examination over the

deadbody of the deceased. Dr. Krishna Kamal De has been examined in

this case as C.W. No. 1.
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3. The prosecution case is that appellant and others did not supply

meal to the deceased and used to torture her physically. Appellant

demanded a sum of Rs.5,000/-(Rupees Five Thousand) only for the

purpose of constructing room. Deceased told PW 1 about such demand.

The deceased used to complain regarding torture and cruelty meted out

towards her by the appellant and others before her parents.

4. On 23.05.2012, the parents of the deceased were informed that the

deceased with burn injuries was admitted to Sian Sub-Divisional Hospital.

On receipt of the aforesaid information, the parents went there and found

that the deceased had sustained extensive burn injuries. Deceased was

thereafter shifted to Burdwan Medical College and Hospital for better

treatment. On 23.05.2012, it is alleged that the deceased disclosed before

PW 1 and PW 2 that the appellant has poured kerosene oil on her and set

her on fire with a match stick upon which the informant (PW 1) lodged a

First Information Report (for short the F.I.R.) (Exbt.1) before the Officer-in-

Charge Labpur Police Station who registered the case for commission of

offences under Sections 498A and Section307 of the Indian Penal Code (for short

SectionIPC) against the appellant and others.

5. On receipt of the aforesaid FIR, the case was registered. The

investigation of the case was entrusted to the Inspector of Police (PW 10).

PW 10 sent a message to the Burdwan Medical College and Hospital for
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recording dying declaration of the deceased, whereupon Dr. Krishna Kamal

De, Medical Officer of Burdwan Medical College and Hospital (CW 1)

recorded the dying declaration of the deceased on 27.05.2012. The said

dying declaration was proved and exhibited as Exbt. I in the trial.

Thereafter, the deceased while under treatment died on 01.06.2012 in the

hospital. After her death, an inquest was conducted by PW 9 and post

mortem examination was conducted by PW 11. PW 10 completed the

investigation and thereafter, submitted charge-sheet against the appellant

and others for commission of offence punishable under Section 498A and

Section302 of the IPC.

6. Charge under Section 302 of the IPC was framed against the

appellant and others.

7. The present appellant and others denied the charge and claimed to

be tried.

8. Prosecution examined 11 witnesses and marked several documents

as exhibits. One witness was examined in this case as Court witness. In

conclusion of trial, the learned Trial Judge by judgment and order dated

30.10.2014

and 31.10.2014 convicted and sentenced the appellant as

aforesaid.

9. The learned Counsel appearing for the appellant submitted that

learned Court below committed an error of fact and also of law in

convicting the appellant. It was submitted that there was no eyewitness to

the occurrence and entire case rests only on circumstantial evidence and
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also on the alleged dying declaration stated to have been made by the

deceased. It was submitted that alleged dying declaration was not

recorded in question answer form. It was further submitted that C.W. No.

1 did not record the time when it was recorded or that the deceased was

not in a fit state of mind to make the statement. He very strenuously

urged that the signature and/or the thumb impression of the deceased

was not there in the said dying declaration. He further urged that there is

three days delay in lodging the First Information Report. So, the learned

Lawyer for the appellant urged that the prosecution case cannot be

accepted as true.

10. The learned Counsel for the State, on the other hand, supported the

order of conviction and sentence. He submitted that learned Court below

was correct and justified in relying upon the aforesaid dying declaration

which was recorded by the Doctor (CW 1).

11. Having heard the learned Counsel appearing for the parties, I now

proceed to analyse the entire evidence on record so as to ascertain whether

the conviction and sentence passed against the appellant would and could

be upheld.

12. PW 1, father of the deceased is the de facto complaint. It is his

evidence that marriage between his daughter and the appellant was

solemnized and his daughter, Manowara received the burn injuries. He

was informed of the incident on the same day whereupon he immediately

went to Sian Hospital and found that the deceased was at there with

extensive burn injuries. His daughter was shifted to Burdwan Medical
6

College and Hospital. PW 1, the informant and father of the deceased,

stated that deceased told him that her husband set her on fire. PW 2 is

the mother of the deceased. PW 2 in her evidence stated that her daughter

was admitted to hospital and she came to see her who told her that her

husband set her ablaze after pouring kerosene oil and her daughter cried

for help. Both the PW 1 and PW 2 were subjected to extensive cross-

examination but the aforesaid part of the evidence pertaining to statement

made by the deceased could not be dislodged in any manner in the course

of cross examination. On scrutiny of the evidence of PW 1 and PW 2, I find

nothing to shake the credence of their evidence.

13. PW 3, PW 4, PW 7 and PW 8 did not support the case of the

prosecution as such they were declared hostile by the prosecution.

14. PW 10 is the Investigating Officer. It is his evidence that on his

prayer, statement of the deceased was recorded by Dr. Krishna Kamal De

of Burdwan Medical College and Hospital on 27.05.2012 and he collected

the dying declaration of the victim. While under treatment in the hospital,

the deceased died on 01.06.2012. The doctor who recorded her dying

declaration was examined in the trial as C.W. No. 1. He had stated in his

deposition that deceased was admitted in CBS female ward of Burdwan

Medical College and Hospital (BMCH) on having suffered 90% burn injuries

in lower face and all other parts of the body. He also stated that he

recorded the statement having found the patient was mentally alert but

under cover of analgesia (pain killer) while making the dying declaration

(Exbt. I) which has been proved in the trial.

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15. Post mortem was held by Dr. Debasish Sarkar (PW 11). On

examination, he found the following injuries on the person of the

deceased:-

“Infected ulcers due to burn injuries, over the anterior and
posterior aspect of neck, chest, abdomen, both the upper
limbs and lower limbs. The ulcers showed presence of
puss and slough with evidence of healing from the
periphery and information of granulation tissues. No other
injuries were detected even after careful dissection of the
body.”

16. Dr. Debasish Sarkar (PW 11) has opined that death was due to effect

of burn injuries ante-mortem in nature. The said Doctor has proved the

post mortem report (Exbt. 3) into evidence. On consideration of the

evidence of PW 11 and post mortem examination report (Exbt. 3), I hold

that deceased died due to effect of burn injuries which is ante-mortem in

nature.

17. PW 6 is the Medical Officer of Bolpur Sub-Divisional Hospital who

has deposed that he attended deceased Manowara Biwi as indoor patient

of the said hospital. He has further deposed that the said patient was

referred to Burdwan Medical College and Hospital and she had 70% burn

injury. Exhibit I is the dying declaration recorded by CW 1 which makes

it clear that the Doctor recording the dying declaration had recorded that

patient was mentally alert under the cover of analgesia at the time of

recording of the dying declaration.

8

18. I have scrutinized contents of the dying declaration which was

recorded by the doctor of the hospital where the deceased was treated for

her burn injuries. On going through the same, I find no infirmity in the

said dying declaration as the said dying declaration vividly mentions

manner in which the deceased suffered burn injuries on pouring kerosene

oil on her by the appellant and set her on fire. The appellant poured the

kerosene oil on the deceased and lit the fire. The said description given by

the deceased in the dying declaration recorded by the doctor is clear,

unambiguous and there is no reason why I should not accept the said

dying declaration as correct and prove version of the incident.

19. The objections raised by the learned Counsel appearing for the

appellant which are of technical nature with regard to recording and

admissibility of the aforesaid dying declaration. I am, however, of the

considered opinion that the said dying declaration recorded by the doctor

(CW1) is also corroborated by the oral dying declaration made before PW 1

and PW 2 and the said fact also finds corroboration from the statement of

PW 1 and PW 2.

20. SectionIn Kaliya v. State of Madhya Pradesh reported in (2013) 10 SCC

758 the Hon’ble Apex Court observed that:-

“The law on the issue can be summarized to the effect
that law does not provide who can record a dying
declaration nor is there any prescribed form, format or
procedure for the same. The person who record dying
declaration must be satisfied that the maker is in a fit state
of mind and is capable of making such a statement”.

9

21. The Constitutional Bench of the Hon’ble Apex Court reported in
Laksman Versus State of Maharastra, 2002 AIR SCW 3479 has
pronounced that:-

“Normally the court in order to satisfy whether the
deceased was in fit mental condition to make dying
declaration, look up to the medical
opinion……………………….

A dying declaration can be oral or in writing
and in any adequate method of communication whether
by words or by sign or otherwise will suffice provided
the indication is positive and definite. In most cases,
however, such dying statements are made orally before
the death ensures and is reduced to writing by someone
like Magistrate or a Doctor or a police officer……………

There is no requirement of law that a dying
declaration must necessarily be made to a Magistrate
and when such statement is recorded by a Magistrate
there is no specified statutory form for such recording.
Consequently, what evidential value or weight has to be
attached to such statement necessarily depends on the
facts and circumstances of each particular case. What is
essentially required is that the person who records a
dying declaration must be satisfied that the deceased
was in a fit state of mind”. (emphasis supplied)

22. Six decades ago, the Apex Court had settled the issue in 1958 AIR
SCR 552 (SectionKushal Rao v. State of Bombay) that conviction may be
recorded solely on a dying declaration provided it is reliable. It held:-

“special sanctity which the legislature attaches to such
declaration must be respected unless such declaration
can be shown not to have been made in expectation of
10

death or to be otherwise unreliable and any evidence
adduced for this purpose can only detract from its value
but not affect its admissibility.

Although a dying declaration has to be very closely
scrutinized, and tested as any other piece of evidence,
once the court comes to conclusion in any particular
case, that it is true, no question of corroboration arises.
A dying declaration cannot be placed in the same
category as the evidence of an accomplice or a
confession.”

23. When I apply the aforesaid principles to the facts of the present case

I am of the considered opinion that the learned Lower Court was totally

justified and also right in relying upon the dying declaration recorded by

the doctor (CW- 1) and statements of the deceased made to PW 1 and PW

2. The technical objections which were raised by the counsel for the

appellant, one regarding the recording of the dying declaration in question

answer form, I thing that this is a rule of prudence and not the ultimate

test as to whether or not the said dying declaration was truthful or

voluntary.

24. The doctor who recorded the dying declaration was examined as a

witness and he had in his deposition categorically stated that the deceased

while making the aforesaid statement was in a fit mental condition to

make such a statement. The aforesaid position makes it therefore clear

that the aforesaid dying declaration could be relied upon as the same was

truthfully recorded and the said statement gave a vivid account of the

manner in which the incident had taken place.

11

25. There was another objection raised by the counsel appearing for the

appellant regarding the admissibility of the aforesaid recorded dying

declaration contending inter alia that the signature or the thumb

impression of the deceased was not taken on the said dying declaration.

The said objection according to me also is without any basis. The

deceased had suffered about 90 per cent burn injuries. Inquest Report

(Exbt. 2) also makes it clear that the palm of the deceased was in burnt

condition. In such a situation, it may not be possible to take her signature

or LTI on the dying declaration. There is also no reason why a dying

declaration which is otherwise found to be true, voluntary and correct

should be rejected only because the person who recorded the dying

declaration did not or could not take the signature or the Left Thumb

Impression of the deceased on the dying declaration. Once it is found that

the dying declaration is true and made voluntarily and as also trustworthy,

there is no reason why the same should not be believed and relied upon.

In this case, the said dying declaration is corroborated by the oral dying

declaration made by the deceased before PW 1 and PW 2 which is also

corroborated by the medical evidence and the facts contained in the FIR.

26. There is no evidence on record nor any suggestion given on behalf of

the defence in this case that Court Witness No. 1, Medical Officer, acted in

motivated or over-zealous manner to the extent that he would falsely

implicate an innocent person in the murder of his wife. Thus, the

argument of the learned Counsel for the appellant is unacceptable.
12

27. Learned Counsel appearing for the appellant has further urged that

while the incident is said to have taken place on 23.05.2012, the FIR was

registered on 26.05.2012 and there was thus a delay of three days in

lodging the FIR. He further submitted that the said three days’ delay has

not been explained properly. So, the prosecution case is fatal. I failed to

accept such contention of the learned Advocate appearing for the

appellant. It is in evidence that the deceased was carried to Sian Sub-

Divisional Hospital and from there, she was shifted to Burdwan Medical

College and Hospital for better treatment. The relatives were under shock

sometime and were mainly concerned with the treatment. Anxiety of the

relatives to get the injured examined by the doctor and provide her with

medical aid was first and foremost importance. It could not be expected

from them that they would rush to the Police Station for making first

information report before medical aid to the injured. In such situation, I

think that if then FIR is delayed for a considerable period, such delay is

not fatal.

28. Therefore, taking an overall view of all the facts and circumstances

of the case and the evidence on record, I find no ground to interfere with

the order of conviction and sentence recorded by the learned trial court

holding the appellant guilty of the offence under Section 302 of the IPC.

The present appeal, therefore, deserves to be dismissed which I hereby do.

The order of conviction and sentence recorded against the appellant is

therefore upheld.

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29. The Lower Court Record along with copy of the judgment be sent to

the learned Trial Court below at once for information and taking

necessary action.

30. Urgent Photostat certified copy of the order, if applied for, be given to

the parties on priority basis on their usual undertaking.

I agree.

(Joymalya Bagchi, J.) (Manojit Mandal, J.)

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