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Salman Sahani vs The State Of West Bengal on 10 January, 2019

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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction

PRESENT:

The Hon’ble Mr. Justice Rajarshi Bharadwaj

C.R.A. 533 of 2016

Salman Sahani
Versus
The State of West Bengal

For the Appellant : Mr. Moinak Bakshi

For the State : Ms. Sukanya Bhattacharya
Ms. Baisali Basu

Heard on : 18th September, 2018, 27th September, 2018, 4th October,
2018 and 10th October, 2018.

Judgement on: 10th January, 2019

Rajarshi Bharadwaj, J.:

This appeal arose out of a judgement of conviction dated 15th
February, 2016 and order of sentence dated 16th February, 2016
passed by the learned Additional District Sessions Judge, 2nd
Court, Arambagh in Session Trial No. 46 of 2016 arising out of
Arambagh P.S. Case No. 729 of 2013 dated 10th November, 2013
convicting the accused/appellant under Section 306/498A of the
Indian Penal Code and sentencing him to suffer rigorous
imprisonment for five years for the offence under Section 306 of the
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Indian Penal Code and to pay a fine of Rs. 5,000/-; in default to
suffer rigorous imprisonment for three months and also sentencing
him to suffer rigorous imprisonment for two years for the offence
under Section 498A of the Indian Penal Code and to pay a fine of Rs.
1,000/-, in default to suffer rigorous imprisonment for one month
and both the sentences under Sections 306 and 498A of the Indian
Penal Code were directed to run consecutively.

The prosecution case in brief is that one Swapan Dolui, father of
the victim lodged a written complaint on 10th November, 2013 before
the I.C., Arambagh Police Station alleging that his daughter Soma
Sahani was married to the accused Salman Sahani as per Hindu rites
and custom about 11 years ago. After marriage Soma resided in her
matrimonial home. Initially she was treated well by her husband and
in-laws but subsequently, she was subjected to physical and mental
torture by the accused person over petty family matters. In her
wedlock with the accused Soma gave birth to one daughter and two
sons. The further allegation was that the accused used to put
pressure upon Soma to bring money from her father. The
complainant fulfilled the demand of the accused as far as possible
but the accused used to put pressure upon Soma to bring money
from her father. Since soma refused to ask her father for further
money, the accused person increased torture upon her. The accused
person used to come home every night in intoxicated condition and
assault Soma. Ultimately, being unable to bear the torture of the
accused person, Soma attempted to commit suicide on 9th November,
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2013 at 9.30 p.m. by pouring kerosene oil on her body and set it on
fire.

On the basis of the written complaint, a criminal case, being
Arambagh P.S. Case no. 729 of 2013 dated 10th November, 2013
under Section 498A of the Indian Penal Code was started against the
accused. Thereafter, on 29th November, 2013 Soma expired in
Arambagh S.D. Hospital. Investigation was started and after
completion of investigation, charge sheet was submitted under
Sections 498A/306 of the Indian Penal Code against the accused
person. On 8th July, 2014 the learned Additional Chief Judicial
Magistrate, Arambagh committed the case to the court of the learned
Additional Sessions Judge, Arambagh, Hooghly and on 29th August,
2014 charges were framed under Sections 498A/306 of the Indian
Penal Code against the accused and the content of the said charge
was read over and explained to the accused/appellant, who pleaded
not guilty and claimed to be tried.

It appears from the record that the Trial Court held that the
accused Salman Sahani was found guilty for committing offence
under Sections 306/498A of the Indian Penal Code and accordingly,
he was convicted under Section 235(2) of the Code of Criminal
Procedure.

Learned advocate for the appellant submitted that the learned
Trial Judge held the appellant to be guilty on the basis of
circumstantial evidence adduced by the witnesses through which no
absolute findings regarding commission of offence could be
established. The evidence of the prosecution witnesses, being P.W.1
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and P.W.2, father and mother of the deceased respectively stated the
death as a result of burning due to stove burst and accidental and
the Autopsy Surgeon could not give a definite opinion as to whether
the death was suicidal, homicidal or accidental. He further
submitted that the prosecution could not bring forth any evidence to
prove the involvement of the accused to aid or instigate commission
of suicide or any wilful conduct actuating the woman to commit
suicide. In support of his submission he relied on a decision of the
Apex Court in the case of Gurcharan Singh -vs- State of Punjab
reported in (2017) 1 SCC (Cri) 439. He further submitted that in the
instant case, before death there was dying declaration of the victim
recorded by the doctor on the next day of the incident in presence of
one staff nurse and one Police Officer, but the learned Trial Judge
failed to appreciate that the deceased as claimed by the doctor had
said to be put on fire on the day of recording of dying declaration,
which indicates to unconscious mind of the deceased putting a big
question on the reliability of the dying declaration itself. He further
submitted that the First Information Report was written by some one
else other than the signatory, but there was no endorsement to that
effect nor was the scribe examined. P.W.1 who was the F.I.R. maker
did not support the F.I.R. in his evidence before the learned Trial
Court. Learned advocate for the appellant submitted that the
accused was sentenced to undergo two sentences consecutively. He
cited a decision of a larger Bench of the Supreme Court in the case of
O.M. Cherian @ Thankachan -vs- State of Kerala Ors. reported in
2015(2) SCC 501, wherein it was laid down that there was no conflict
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with Section 31 of the Code of Criminal Procedure with earlier
judgement of the Apex Court in the case of Mohd. Akhtar Hussain –
vs- Collector of Customs (1988) 4 SCC 183. It was held in paragraph
21 thereof that “Section 31 of Cr.P.C. leaves full discretion with the
court to order sentences for two or more offences at one trial to run
concurrently, having regard to the nature of offences and attendant
aggravating or mitigating circumstances.” Therefore, the prosecution
has measurably failed to prove the case beyond reasonable doubt.
Thus, learned advocate for the appellant prayed that the appeal may
be allowed by setting aside the order of conviction and sentence
passed by the learned Trial Judge.

On the other hand, learned advocate for the State relying on the
decision of the Gujarat High Court in the case of Jayantibhai
Lalubhai Patel -vs- the State of Gujarat reported in 1992 Cri.L.J.
2377, submitted that the First Information Report was a public
document and the Court can take judicial notice of the same. P.W.1,
father of the deceased deposed in his chief that the written complaint
was drafted as per his instruction and it was read over and explained
to him. The First Information Report was lodged on 10th November,
2013 after four hours of the incident. She further submitted that the
victim gave statement before the doctor, P.W.10 in presence of Nurse,
P.W.5 and the Investigating Officer, P.W.11 and one Sub-Inspector,
Biswajit Bhattacharjee but the presence of Investigating Officer and
the endorsement of Biswajit Chatterjee, S.I. were not challenged at
the time of exhibiting the documents. She further submitted that
dying declaration was not challenged before the learned Trial Judge.

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If any document is not challenged at the time of taking evidence, the
point will not be taken further. In support of her submission, she
cited a judgement of the Apex Court in the case of Malay Kumar
Ganguly -vs- Dr. Sukumar Mukherjee Ors. reported in (2009) 9
SCC 221, particularly paragraph 40 thereof. On the same point she
also cited another judgement of the Apex Court in the case of Bipin
Shantilal Panchal -vs- State of Gujarat Anr. reported in 2001 SCC
(Cri) 417. She further submitted that at the time of recording
statement the victim was conscious and she was in a position to give
statement. Since the Sub-Inspector Biswajit Bhattacharjee put his
signature in dying declaration, his presence was not required as per
the said judgement. She also argued that the prosecution proved his
case that there was a burn injury and the defence was trying to
establish that due to stove burst the victim died. Therefore, the onus
upon the defence to prove the story of stove burst. In this
connection, she cited a decision of the Supreme Court in the case of
Dahyabhai Chhaganbhai Thakkar -vs- State of Gujarat reported in
1964(2) Crl.J. 472, particularly paragraphs 5, 7 and 9 thereof.
Lastly, she submitted that the victim was subjected to regular beating
by her husband and regular torture by her husband instigated her to
commit suicide and therefore, the prosecution has proved the charge
under Section 306 of the Indian Penal Code. Thus, she prayed for
dismissal of the appeal.

Heard learned advocates for the parties and perused the
impugned judgement.

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In the instant case the prosecution examined as many as eleven
witnesses to prove the charge of cruelty.

P.W.1, Swapan Dolui, the father of the victim as well as the
complainant of this case stated that his daughter named Soma was
married with Salman Sahani as per Hindu rites and custom and in
the said marriage he gave Rs. 30,000/- in cash and two vory of gold
ornaments. After marriage his daughter resided in her matrimonial
home. His daughter and son in law used to live separately from his
parents. She gave birth of two sons and one daughter. His daughter
was not alive. She sustained burn injuries by burst of stove during
cooking and she died in the hospital. He submitted a written
complaint at Arambagh Police Station against his son-in-law Salman
Sahani. He stated that he did not know the contents of the said
written complaint. The written complaint was drafted as per his
instruction and it was read over and explained to him. During cross-
examination he stated that he did not know who drafted the written
complaint. He signed the said in good faith and he did not know the
contents of the written complaint. He signed the seizure list and
inquest report as per direction of the Darogababu. He further stated
that his daughter died due to accident.

P.W.2, Bharati Dolui, mother of the victim stated that her
daughter was married with the accused. She identified the accused.
She stated that after marriage her daughter Soma resided in her
matrimonial home and the accused used to treat Soma properly. She
further stated that Soma died due to bursting of stove while she was
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cooking. During cross- examination P.W.2 stated that she had no
allegation against the accused.

P.W.3, Dipankar Das, neighbour of the complainant stated that
he knew the complainant and his daughter Soma. He identified the
accused as the husband of soma. He further stated that Soma used
to reside in her matrimonial home after her marriage and she was
treated well by her husband. He stated that Soma died due to
bursting of stove in her matrimonial home.

P.W.4, Biswanath Roy, a resident of Arambagh stated that he
knew the complainant and also knew Soma and the accused. He also
stated that Soma was treated well by the accused. He stated that he
heard that Soma had sustained burn injuries due to bursting of stove
at the time of cooking.

P.W.5, Archana Kundu, who was a staff nurse of Arambagh S.D.
hospital, stated that on 10th November, 2013 she was in the same
post and on that date one patient named Soma was brought to the
Arambagh S.D. hospital with burn injuries. She stated that Soma
gave statement before the doctor in her presence and the same was
recorded by the doctor. She identified the dying declaration of Soma
recorded by doctor Subhasis Chatterjee. The dying declaration was
marked as Ext.4.

P.W.6, Abhoy Pada Malik, next door neighbour of the accused
stated that he did not know how the accused treated his wife because
he remained outside his house the whole day in connection with his
work. He also stated that Soma died due to burn injury, but he did
not know how she got burnt. However, he stated that he used to
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often hear shouting from the house of the accused. He did not know
whether Salman physically assaulted his wife.

P.W.7, Dr. Nirmalya Roy, Medical Officer of Arambagh S.D.
hospital stated that on 29th November, 2013 he was posted as
Superintendent, S.D. hospital, Arambagh and on that date he
conducted post mortem of the dead body of Soma Sahani. The post
mortem report was proved by the witness and marked as Ext.5. He
stated that the deceased had 90% burn injury all over the body,
except face, scalp and foot. He also stated that the death of Soma
probably took place due to her burn injury to be confirmed after
receiving the viscera report. During cross- examination P.W.7 stated
that it was not possible for him to give final opinion regarding the
cause of death.

P.W.8, Bhangi Sahani, father of the accused stated that his son
(accused) and Soma used to live in the adjoining room. He also
stated that the accused used to drink on occasions but the accused
never assaulted his wife. He also stated that his daughter-in-law died
due to bursting of stove. During cross-examination P.W.8 stated that
police had seized a bottle of kerosene from his house and he signed
as witness in the seizure list. P.W.8 also stated that his daughter-in-
law died due to accidental bursting of stove. He also stated that the
accused was not responsible for the death of Soma.

P.W.9, Sakal Sahani, mother of the accused stated that the
accused treated his wife properly and she used to counsel her son not
to quarrel with his wife. She also stated that her daughter-in-law
died due to bursting of stove. During cross-examination P.W.9 stated
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that friction and quarrel used to take place some time due to want
and poverty.

P.W.10, Subhasis Chatterjee, Medical Officer of Arambagh S.D.
hospital stated that on 10th November, 2013 he was posted as Senior
Medical Officer and he recorded dying declaration of one Soma Dolui
(Sahani) in presence of staff nurse Archana Kundu and Police Officer
Biswajit Bhattacharya. At that time patient was conscious and he
recorded dying declaration of the patient in the words of the patient
Soma Sahani. He also stated that he recorded the dying declaration
of Soma in his own handwriting and it bears his signature. During
cross-examination P.W.10 stated that it was a fact that Ext.4 did not
bear any endorsement to the effect that the dying declaration was
read over and explained to the patient.

P.W.11, Debasish Chatterjee, Investigating Officer of this case
stated that during investigation he visited the place of occurrence,
examined available witnesses and recorded their statements under
Section 161 of the Code of Criminal Procedure. He also seized some
articles, prepared rough sketch map of place of occurrence and
arrested the accused. He also stated that Soma gave statement
before him and it was recorded in presence of doctor and staff nurse.
He also stated that he collected the injury report and the post mortem
report from the hospital and sent viscera of the deceased to FSL for
opinion. He further stated that he seized one plastic bottle containing
some kerosene, half-burnt saree of the deceased and one partly burnt
shawl. He also stated that seizure list dated 10th November, 2013
and 29th November, 2013 were both prepared by him and bears his
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signature. During cross-examination P.W.11 stated that Ext.4 did
not contain any note to the effect that dying declaration was recorded
as per statement of the patient.

On perusal of the evidence on record it appears that it was the
specific case of the prosecution that cruelty and harassment was
made by the accused person/appellant upon the victim Soma, for
which she had to commit suicide in her in-law’s house after eleven
years from the date of her marriage. It appears from the dying
declaration that the doctor had first put some preliminary questions
to the victim in order to ascertain her mental condition. The victim
stated her name and the name of her husband correctly. Thereafter,
the doctor recorded her statement, which she had stated that every
night her husband used to drink and to beat her and sent her out
from the home. On the date of the incident the accused did the same
thing and thereafter, the victim took fire from the lamp and burnt her
body.

It is evident that the victim was subjected to cruelty by her
husband everyday. The term ‘cruelty’ has been defined as any wilful
conduct, which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or
health. In the instant case, the parents of the deceased as well as
the independent witnesses deposed that Soma sustained burn injury
by accidentally bursting of stove while she was cooking, but in their
statements under Section 161 of the Code of Criminal Procedure they
stated otherwise. Moreover, in her dying declaration the victim stated
that she poured kerosene oil on her body from oil lamp and set
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herself on fire. The doctor in his evidence before the Court stated
that the deceased was conscious and was in a position to give dying
declaration. The staff nurse in whose presence the dying declaration
was recorded, deposed before the Court that the dying declaration
was recorded by the doctor in her presence. Therefore, the learned
Trial Judge rightly convicted the accused person for the offence
punishable under Sections 498A/306 of the Indian Penal Code.
Hence, I uphold the conviction and sentence of the appellant under
Sections 498A/306 of the Indian Penal Code.

It is submitted on behalf of the appellant that the
accused/appellant is in jail for more than four years. In view of the
decision of the Hon’ble Supreme Court in the case of O.M. Cherian @
Thankachan -vs- State of Kerala Ors. (supra), I direct that both the
sentences imposed upon the appellant shall run concurrently.

Period of detention suffered by the appellant during
investigation, enquiry and trial shall be set off from the substantive
sentence imposed upon them in terms of Section 428 of the Code of
Criminal Procedure.

Accordingly, the appeal is dismissed.

Copy of the judgement along with Lower Court Records be sent
down to the trial court at once for necessary compliance.

Urgent Photostat certified copy of this order, if applied for, be
supplied expeditiously after complying with all necessary legal
formalities.

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(Rajarshi Bharadwaj, J.)

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