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Sanjib Nath-vs-State Of West Bengal on 27 July, 2007

Calcutta High Court Sanjib Nath-vs-State Of West Bengal on 27 July, 2007
Equivalent citations:2007 (4) CHN 1018
Author: G C Gupta
Bench: G C Gupta, K K Prasad

JUDGMENT

Girish Chandra Gupta, J.

1. Sanjib Nath together with his father Joydev Nath since deceased and his mother Shrimati Mina Nath, pursuant to a written complaint dated 2nd September, 2002 lodged by Shri Debasish Sarkar which formed the basis of a formal FIR were charged for inflicting physical and mental torture upon Shrimati Sampa Nath under Section 498A/34 of the Indian Penal Code and for committing murder of the said Shrimati Sampa Nath by setting her on fire after pouring kerosene oil on her body under Section 302/34 of the Indian Penal Code. During the pendency of the trial the accused Joydev Nath, father-in-law of the victim died. Shrimati Mina Nath, mother-in-law of the victim Shrimati Sampa Nath and the husband of the victim were acquitted of the charges under Section 498A read with Section 34 of the Indian Penal Code. Shrimati Mina Nath was also acquitted of the charge under Section 302/34 of the Indian Penal Code. Shri Sanjib Nath was however found guilty for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo life imprisonment and was also directed to pay a fine of Rs. 2,000/- and in default to suffer six months further rigorous imprisonment. The convict Sanjib Nath has come up in appeal.

2. The case of the prosecution briefly stated is that at 1.30 a.m. on 2nd September, 2002 Shri Debasish Sarkar the maternal uncle of the victim., upon being informed by Papiya, a relation of Shri Sanjib Nath, went to the house of the victim and found her lying on the floor with severe burns. Her hands were tied. She was screaming in pain. She told him that her husband and his parents asked her to die. Upon protest by the victim they jointly poured kerosene oil on her and ignited with a lamp. There are allegations of continuous torture both physically and mentally upon the deceased ever since she was married to the accused Sanjib. The case of the defence is however plain and simple denial.

3. The only point which arises for our determination is whether the charge under Section 302 for which the appellant has been punished was brought home by the prosecution beyond reasonable doubt.

4. We shall first scrutinize the evidence and shall thereafter consider the submissions made by the learned Advocate Ms. Gomes appearing for the appellant by way of legal aid.

5. The actual date of marriage of the victim Sampa with the convict Sanjib is not on the record. Consistent deposition of the witnesses is however that around 7 years before the date of occurrence they were married. They had on the date of occurrence two daughters: one four years old and the other 2 years old. The victim Sampa was brought up by her maternal uncle Debashish from her childhood. Sanjib was the neighbour of Debashish. The victim fell in love with Sanjib. She, as a matter of fact eloped with Sanjib and got married stealthily. Initially Debashish was reluctant to accept this marriage. With the passage of time however he was reconciled. The consistent deposition of the relations of both sides is that Sanjib is an ease loving fellow. He would not work. Naturally there is poverty in the family and that poverty was at the root of constant quarrel between the couple.

6. PW.3 Rupasi Mondal sister of the convict resides at a distance of 25/30 cubit from the adjoining garden of the house of the convict. She deposed to have witnessed the victim burning at about 1 a.m. in the night. The victiarwas shouting. She deposed that she became nervous and she also started shouting. She came to the spot and attempted to extinguish the fire with the help of gunny materials. She is one of the four persons who accompanied the victim to the SSKM Hospital where the victim made dying declarations before the admitting doctor and the attending doctors. PW.5 Arijit Nath, son of Jayanta Nath is the cousin of the convict. He deposed that he was sleeping at his house. When he heard the hue and cry he came out from his house and reached the place of occurrence and found that the victim was lying in burnt condition at the garden adjacent to the house of the convict. The fire by that time had already been extinguished. He arranged for an ambulance and accompanied the victim to SSKM Hospital and has also witnessed the dying declaration made by the victim to the doctors. PW.1 Debashish Sarkar, the de facto complainant and the maternal uncle of the victim deposed that upon being informed by Papiya, wife of one of the cousins of the convict he rushed to the place of occurrence. He saw Sampa burning inflames. He found her hands tied. PW.2 Pranab Sarkar a neighbour deposed that upon hearing the hue and cry he reached at the house of Sanjib. He found the victim tossing in pain. The victim told the PW.2 that her husband had poured kerosene oil on her body and had set her on fire. PW. 9 Papiya wife of the cousin of the convict had given initial information to the PW. 1. She has deposed that the relationship between the couple was not cordial. She has made two significant statements (a) that the mother of the convict did not interfere in the quarrel between the couple and (b) that the continuous trouble between the couple arising out of poverty could have led the victim to commit suicide. The second statement is however only a conjecture and is not backed by any positive evidence in that regard. PW.14 Dr. Chandan Roy was posted at the emergency of the SSKM Hospital on 2nd September, 2002. He admitted the patient. According to his deposition the victim told him that her husband had set her on fire. He has deposed that the patient was brought by Debashish Sarkar, Arijit Nath, Rupasi Mondal and the convict Sanjib Nath. His evidence is that at the time when the victim was admitted she was in a position to communicate. The victim also told PW. 14 that her husband regularly tortured her. The victim/patient according to this doctor had suffered 80% burn injury. The aforesaid accusation was made by the patient to the doctor in the presence of the convict Sanjib, P.W.1 Debashish, PW.3 Rupasi and PW.5 Arijit which was reduced to writing by the doctor and signed by him besides the aforesaid 4 witnesses which eventually includes the convict also. The doctor has recorded in the aforesaid document which is Ext. 1 as follows: “patient stated to him at emergency of SSKM that her husband tortured her regularly. Patient stated that her husband Sanjib Nath poured kerosene on her and set her on fire”. This has been signed as indicated above by the doctor, by the convict Sanjib, Debashish, Arijit and Rupasi. The doctor and three out of the four namely Debashish, Arijit and Rupasi in their evidence have corroborated the aforesaid fact and have also identified their respective signatures. In cross-examination the PW.14 was asked as to why was the dying declaration not signed by the victim herself to which the doctor replied that since the hands of the patient were severely burnt he did not want to put ink in her left thumb in order to avoid infection nor did he think it prudent to give her a pen which might further injure her burnt fingers. PW.19 Dr. R. Tandon wrote the history sheet which has been tendered in evidence and has been marked as exhibit 10 which is also a bed-head ticket. The history wrote by Dr. Tandon, according to his deposition, was given by the patient herself which reads as follows “the patient suffered homicidal flame burnt. When her husband poured kerosene oil on her and set her on fire following a quarrel at about 11.30 p.m. on 01.09.2002 at her husband’s house in Howrah district. She was subsequently brought to hospital by other family members”. The aforesaid recording was made at 2.40 a.m. on 2″d September, 2000. The history sheet goes to show the poor physical condition of the patient. First such entry is made at 2.40 a.m. Subsequent entries show that at 6.15 a.m. there was respiratory distress. At 6.30 a.m. there was respiratory distress and at 6.40 a.m. respiration stopped, the patient died. PW.22 the driver of the ambulance has deposed that the patient was shouting in pain. PW.18 Dr. P. R. Das conducted post-mortem. He has deposed that the patient had suffered 100% burn injury. He however added that the vocal cord might not have been affected. According to him the attending doctor is the competent person to speak on the subject. We already have examined the evidence of attending doctors Chandan Roy and Dr. R. Tandon. P.W. 15 Shri A. K. Samanta, a WBCS Executive conducted the inquest. According to him the victim did not suffer any injury on her face. However PW. 16 Sujata has deposed that her lips had been affected. According to the deposition of PW.16 she reached the place of occurrence while the victim was still burning and she had tried to extinguish the fire. She also heard the victim make a dying declaration that her husband had set her on fire.

From the evidence discussed above there is no room left to doubt the case of the prosecution.

7. Ms. Gomes, learned Advocate appearing for the appellant submitted that when the victim had suffered 100% burn injury, she could not be expected to have made a dying declaration which is the sole basis for convicting the appellant.

8. We are unable to accept this submission. The close relations of the convict have deposed before the Court that such a declaration was made. Independent witnesses have deposed the same thing. The dying declarations was made not only before the respectable doctors and the close relations of the convict it was also made in presence of the convict himself. Therefore as regards the ability of the victim to make the dying declaration there is no scope to make any guesswork. As regards veracity of the declaration made by the victim we have no doubt nor was the same even commented upon. The burnt clothes, the empty kerosene jar were seized and produced in the Court and marked as material exhibits.

9. In the facts and circumstances, we are inclined to think that the case has been proved beyond reasonable doubt. In the result, we hold that there is no merit in this appeal which is accordingly dismissed.

10. Lower Court Records with a copy of this judgment to go down forthwith to the learned Trial Court for information and necessary action. Urgent xerox certified copy of this judgment, be supplied to the learned Advocates for the parties, if applied for on compliance of all formalities.

Kishore Kumar Prasad, J.

11. I agree.

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