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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE

Present :

The Hon’ble Justice Shivakant Prasad

CRA 286 of 2015

Sanjoy Goldar
Vs.

The State of West Bengal

For the appellant : Mr. Partha Pratim Das

For the state : Mr. S. G. Mukherjee, ld. P.P.
Ms. Faria Hossain

Heard on : 27.11.2019

Judgment on : 27.11.2019

Shivakant Prasad, J:-

This is an appeal under Section 374(2) of the Code of Criminal Procedure

whereby the appellant has challenged the judgment and order dated 25th day of

March, 2015 passed by the learned Judge, special Court-cum-Additional

Sessions Judge, Durgapur in Sessions Trial No.03 of 2010/Sessions Case No.160

of 2009 thereby convicting the appellant for the offence punishable under Section

306 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment

for seven years and also convicting and sentencing him to suffer rigorous

imprisonment for two years and also to pay a fine of Rs.2,000/-, in default to
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suffer simple imprisonment for six months for the charge under Section 498A of

the I.P.C. with the direction that both the sentences shall run concurrently.

The brief facts leading to this appeal is that on the complaint of Manik Das,

father of the deceased, an FIR was registered being No.94 of 2008 under Sections

498A/Section406/Section326/Section307/Section34 of the Indian Penal Code against the appellant, his

parents and other inmates of his family. On completion of the investigation,

chargesheet considering under Sections 498A/Section306/Section34 IPC was submitted and

after the case was committed to the Court of Sessions, the Additional Sessions

Judge framed charges thereunder and proceeded with the trial.

On finding that the accused person/the appellant had pleaded not guilty

by claiming trial as many as 12 witnesses were examined. PW1-Manik Das, de

facto complainant, PW2-Durga Das, mother of the deceased, PW3-Swapan Das,

brother of the deceased, PW4-Prasanta Saha, neighbour, PW5-Bapi Paul,

neighbour, PW6-Chandan Dhar, neighbour, PW7-Avijit Das, cousin of the

deceased, PW8-Brindaban Das, uncle of the deceased, PW9-Basana Mukherjee,

nurse of the hospital, PW10-Mahima Murmu, nurse of the hospital, PW11-Dr.

Anand Prakash, examined the deceased and recorded the dying declaration,

PW12-Sridam Chandra Roy, investigating officer of this case.

After the trial was concluded, the accused person was examined under

Section 313 of the Cr.P.C. to which he declined to adduce any offence. Thereafter

the learned Trial Judge proceeded to consider the case on merit on evidence and

held the appellant guilty of the charge under Section 306 of the I.P.C. by the

impugned judgment.

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On being aggrieved by the judgment impugned in appeal, the appellant has

preferred this appeal, inter alia, on the ground that the learned Judge has failed

to appreciate that the FIR maker being PW1, in his deposition, has not been able

to make out any case of abetment against the appellant and that the basic

ingredients to constitute an offence under Section 306 of the Indian Penal Code

has not been established by the prosecution.

It is also submitted on behalf of the appellant that in the dying declaration

made by the victim lady and the treatment-sheet of the medical paper reveal that

the victim lady was suffering from 100 per cent burn injury and was incapable of

making any statement.

It is also submitted that the learned Judge has failed to apply his judicial

mind to the fact that none of the related witnesses of the de facto complainant

that PWs 3, 4 and 8 stated in corroboration to each other against the appellant

and there is no thumb impression in the dying declaration which completely

belies the prosecution case as dying declaration cannot be accepted and

considered in the eye of law when the 100 per cent burn injured person is not

capable of putting her L.T.I. on the dying declaration. Accordingly, the appellant

has prayed for setting aside the judgment impugned as bad in law.

I have heard learned advocate appearing for the State defence Mr. Partha

Pratim Das who was appointed to defend the appellant from the defence panel

and also heard Ms. Faria Hossain, learned Advocate for the State, on the merit of

the case. The allegation in a nutshell as revealed from the evidence on record

and the complaint is that in 2004, Sampa Goldar was given marriage by Manik
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Das with the appellant as per Hindu rites and customs and at the time of

marriage cash of Rs.20,000/-, gold ring and furniture were given to the appellant

by the complainant Manik Das.

According to PW1 – Manik Das, his daughter Sampa Goldar, the victim

lady was tortured mentally and physically by the appellant and his family

members on the issue that there was a previous marriage of the appellant. It is a

specific case that on 28.03.2008, the complaint’s daughter Sampa Goldar was

tortured by her in-laws and at about 1 p.m., the complainant had got the

information that Sampa suffered burn injury by herself at matrimonial home.

It would appear from the written complaint Exhibit 1 that according to

PW1- Manik Das, his daughter was suffering physical and mental torture by her

husband Sanjoy Goldar and other in-laws and after six months it was learnt that

previously the appellant was married with another woman, namely, Malina

Goldar and they had a male child. Dispute often took place between his

daughter and her in-laws over such issue and sometimes negotiations were held

to resolve the dispute and in some occasion his daughter was unable to bear with

pain. Sometimes moneys were demanded and the demand was so fulfilled.

It is also in the written complaint that Sanjoy Goldar, the appellant herein

used to visit frequently to his first wife and when his daughter raised objection to

that, she was physically assaulted. On 28.03.2008, physical torture was inflicted

on her through out the day and that no food was provided to her. In the

complaint, the complainant has averred that her husband, brother-in-law and
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sister-in-law jointly poured kerosene oil and set her on fire save and except this

fact, rest of the fact made in the FIR found corroboration by its maker.

Dr. Anand Prakash, PW 11 corroborated the fact of the death of the

deceased due to burn injury and the dead body was sent to the hospital for post

mortem. The inquest was carried out by Executive Magistrate, Burdwan in this

case. The post mortem report reflects that the death of the deceased was due to

effect of the burn injuries. The evidence of PW1 further reveals that his daughter

and son-in-law used to reside at the house which was a kutcha structure with

shed and there was only one room and verandah and in verandah, cooking used

to be done.

Bapi Pal’s house is situated after few houses from the house of Sanjoy

Goldar who has been examined as PW5. Said Bapi Pal has been declared hostile

by the prosecution. But the fact remains that he had taken Sampa Goldar to

hospital. According to him, as per his evidence during cross-examination, when

Sampa Goldar got burn injury, he was present at her matrimonial home and he

could not say as to how she suffered burn injury. But after coming to the house

of Sanjoy, he saw Sampa Goldar with burn injury and the entire body including

her hair and face was burnt and he took Sampa to hospital. According to him,

she was not capable to speak.

But it is evident from the testimony of the Dr. Anand that he had recorded

the dying declaration of the victim lady Sampa Goldar who had attended a

patient Sampa Goldar admitted on 29.03.2008 in D.S.P. hospital with 100 per

cent burn injury and on 30.03.2008 at about 3 p.m. Dr Anand recorded her
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statement. On being asked she had stated that on 28th March, 2008 at about 9

p.m. her husband started scolding her over mobile phone. She also retaliated

and their quarrel increased and the appellant hit her on her head and back.

Unable to bear the quarrel, she put kerosene oil over her body and lit herself.

This fact finds corroboration by the dying declaration Exhibit 5.

Mr. Partha Pratim Das, learned advocate appearing for the appellant, has

pointed out that the victim had incoherent speech, that is to say, unable to speak

on 30.03.2008 and therefore, dying declaration should not be accepted as gospel

truth.

But I find that at 3 p.m. she had very slow speech and declaration was

taken by the doctor and the doctor himself has recorded declaration given by the

deceased victim which is on proof as Exhibit 5. So obviously the victim had

faculty of mind to make statement before the doctor.

Dying declaration as per Clause 1 of Section 32 of the Evidence Act makes

a statement of a person who has died relevant only when the statement is made

by a person as to the cause of his death which resulted in the death of the

deceased. It is a settled law that conviction can be based even on corroborated

dying declaration if after scrutinizing the evidence relating to dying declaration

there are no suspicious features in it and the dying declaration if truthful can be

the sole basis of conviction. So far as the evidence narrated by the victim, I find

that intrinsically the deceased victim lady was capable of making such

declaration before the doctor and it sounds with probability as the doctor himself

has noted in the dying declaration and the treatment-sheet that when she was in
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a position to speak though slowly had made such statement. The victim lady in

her dying declaration has not stated that she has been brought by her husband

or any members of her in-laws family but she has clearly stated that she put

kerosene on her body and set herself on fire because she could not bear the

torture physically meted out by her husband. It appears that there used to be a

souring relationship between the appellant and the deceased lady upon the facts

known to her that her husband was previously married and had a son with the

first wife. Taking into consideration the totality of the evidence on record, I find

no fault in the finding of the learned Trial Court in holding the appellant guilty of

the charge under Section 498A/Section306 IPC. After giving reflection in segregation

under Section 235(2) of the Cr.P.C., the appellant was heard on question of

sentence and was finally sentenced to suffer rigorous imprisonment for 7 years

for the offence punishable under Section 306 of the IPC and Rigorous

imprisonment for 2 years for the offence punishable under Section 498A of the

IPC.

In so far as the sentence awarded against the appellant for the charge

under Section 498A of the IPC with a fine and a default clause, I do not find any

reason to modify the sentence. However, as regards substantive sentence of 7

years for the charge under Section 306 of the IPC, I am of the view that the

reduction of the sentence to a period undergone by the appellant can be taken

into consideration. It is the law settled that when the discretion has been

properly exercised by the Trial Court in awarding sentence, the Appellate Court

should not interfere unless there are very strong reasons and in case sentence
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cannot be said to be so grossly inadequate to amount to miscarriage of justice

but at the same time I find that in the given case that over the mobile, the wife

and the husband picked up quarrel and in the midst, the wife was beaten up by

her husband, which compelled her instantly to take her life by pouring kerosene

and setting herself on fire.

Bearing in mind the delicate nature of marital tie of the deceased with the

appellant and further in consideration of the character of the evidence of the

prosecution in support of its case and extenuating circumstance mitigating the

enormity of the crime under Section 306 of the IPC, this Court is of the view that

the modification of sentence of rigorous imprisonment of 7 years in respect of the

charge under Section 306 of the IPC to a period of 5 years would serve the ends

of justice. Accordingly, the order of sentence for a term of 7 years for the charge

under Section 306 of the IPC is altered to a period of rigorous imprisonment for 5

years.

In compliance of this Court’s order the Superintendent, Burdwan Central

Correctional Home has submitted a report that the appellant is serving his

sentences w.e.f. 25.03.2015 till date and his previous detention period is 62 days

which can be set off from the substantive period of sentence to be undergone by

the appellant. Let this report be kept on record.

With the above modification, the Criminal Appeal being CRA 286 of 2015 is

partly allowed and thus disposed of.

A copy of this judgment together with LCR be sent down to the learned

Trial Court forthwith for necessary note in the Sessions Trial Register and for
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doing the needful. A copy of this judgment be also sent to the Superintendent,

Burdwan Central Correctional Home for his information and doing the needful.

Urgent Photostat certified copy of this order, if applied for, be supplied to

the parties on completion of all necessary formalities.

(Shivakant Prasad, J.)
s.biswas