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Subir Das @ Bapi Das And Sova Das-vs-State Of West Bengal on 18 April, 2006

Calcutta High Court Subir Das @ Bapi Das And Sova Das-vs-State Of West Bengal on 18 April, 2006
Equivalent citations:2006 (4) CHN 231
Author: S P Mitra
Bench: A Talukdar, S P Mitra

JUDGMENT

Sankar Prasad Mitra, J.

1. This appeal has been preferred by the appellant against the judgment dated 15^th February, 2000, passed by the learned Additional Sessions Judge, 3^rd Court, Alipore in Sessions Trial No. 4(6) of 1999, Sessions Case No. 24(3) of 1999, whereby the appellant No. 1 Subir Das @ Bapi Das was convicted and sentenced under Section 302 of IPC to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for one year. He was also convicted and sentenced under Section 498A of IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for six months. Both the sentences were directed to run concurrently.

2. Appellant No. 2, Sova Das was convicted and sentenced under Section 498A of IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for six months with a direction that both the sentences were to run concurrently if the fine amount was not paid. It was further directed that the period of her detention in custody would be set off against the sentence under Section 428 of Cr.PC.

3. The lodging of written complaint (Exhibit 1 series) by Josthna Dutta, P.W. 1, scribed by Subrata Majumdar, P.W. 2 at Jadavpur Police Station, prompted Madan Mohan Das, P.W. 12, S.I. of Police to fill in the formal FIR vide Exhibit 7, and started Jadavpur P.S. Case No. 296 of 1998 dated 28th May, 1998 against both the appellants under Section 498A/326/34 of IPC. Subsequently Section 302 of IPC was added.

4. The prosecution’s case in brief is that the appellant No. 1 married Manju Das (victim) daughter of the de facto complainant on 18^th February, 1997 which was registered on 8th March, 1997, and after marriage both the appellants started physical and mental torture upon the victim for the last few months continuously before the occurrence of the incident in question. The incident of torture was conveyed by the victim to her mother, sister and other family members. However, to resolve the disputes the de facto complainant tried to meet her son-in-law, the appellant No. 1 but he avoided her. On 26th May, 1998 in the evening the de facto complainant received a news to the effect that the victim, Manju Das was admitted at M.R. Bangur Hospital sustaining burn injury to her person. The de facto complainant, therefore, rushed to the hospital where from the hospital bed she came to know from the victim that on 26^th May, 1998 in the evening both the appellants set fire to her body by sprinkling kerosene oil. As the physical condition of the victim was deteriorating she was removed to S.S.K.M. Hospital for better treatment but the victim, Manju Das succumbed to her injuries.

5. On receiving complaint, the I.O. P.W. 13, Ananda Kundu, S.I. of Police took up the investigation of the case and during investigation he visited the place of occurrence, prepared a sketch map with index vide Exhibit 8. Since the victim expired on 1^st June, 1998 due to 60% burn injury, inquest was held in presence of witnesses on the deadbody of the victim at dead house of the S.S.K.M. Hospital by the Executive Magistrate, Aniranjan Bhattacharya, P.W. 10 and the deadbody was identified by P.W. 9 Sahadev Koley, A.S.I. of Police for which inquest report vide Exhibit 2 series was prepared, signed by the Executive Magistrate and other witnesses, namely, P.W. 9 and P.W. 3 Narendra Nath Dutta. The I.O. also examined witnesses, recorded their statements and in course of investigation seized wearing apparels etc. of the victim under a seizure list in presence of witnesses vide Exhibit 4 series. The I.O. also arrested Sova Das, mother-in-law of the victim on 30^th May, 1998 and Subir Das @ Bapi Das, husband of the victim on 3^rd June, 1998 and collected P.M. report (Exhibit 9) of the victim which was held by P.W. 11 Dr. Arun Kr. Saha. That apart he collected dying declaration of the victim recorded by P.W. 7 Dr. Anjali Banerjee, Exhibit 3 series and inquest report from Bhawanipur Police Station.

6. The chargesheet under Section 498A/302/326/34 of IPC was submitted by the I.O. against both the appellants/accused persons after completion of investigation.

7. The Trial Court after considering the materials on record appeared against the appellants was pleased to frame charges under Section 498A/302/326/34 of IPC and both the accused persons (appellants) in answer to the charges pleaded not guilty and claimed to be tried. The defence of the appellants as appearing from the trends of cross-examination as well as their examination under Section 313 of Cr. PC is that they have been falsely implicated in this case and they neither tortured the victim in any manner whatsoever nor they set fire upon her body by sprinkling kerosene oil. It is the specific defence of the appellants that the victim sustained burn injuries upon her person when kerosene lamp was over-turned. However, no defence witness has been examined from the side of the appellants in support of their defence in the Court below.

8. In the Court below, the prosecution in order to prove their case against the appellants took the pain of examining, at least, 13 witnesses, including the I.O. the P.M. doctor and the doctor who recorded the dying declaration of the victim. The evidence on record reveals that the P.W. 1 was the mother of the victim while P.W. 2, Subrata Majumdar, P.W. 3 Narendra Nath Dutta, P.W. 6 Anju Majumdar were the son-in-law, son and daughter of P.W. 1 respectively. It further appears that P.W. 4, N.C. Das and P.W. 5, Puja Das are the neighbours of the appellants who resides nearby the house of the appellants. The learned Trial Court relying upon the testimonies of the aforesaid witnesses came to a conclusion that the victim prior to her death was tortured both physically and mentally by the appellants and, therefore, he convicted both of them under Section 498A of IPC and sentenced them accordingly. The Trial Court while convicting the appellant, Subir Das @ Bapi under Section 302 of IPC took into account the conduct of the appellants, the testimonies of P.W. 1 (de facto complainant), mother of the victim and dying declaration Exhibit 3 recorded by Dr. Anjali Banerjee, P.W. 7 at S.S.K.M. Hospital and came to a conclusion that it was the accused Subir Das @ Bapi who was responsible for homicidal burn injury caused upon her and the evidence of P.W. 11 Dr. Arun Kr. Saha who affirm that the death was due to burn injury, antimortem in nature and the learned Trial Court in coming to a conclusion took into account the death certificate Exhibit 5 issued by Dr. P.K. Sinha, which shows that the victim died due to 60% burn injuries and she died on 1^st June, 1998 at 9.25 a.m. at S.S.K.M. Hospital. Thus, the learned Trial Court after considering the oral and documentary evidence on record found appellant No. 1 guilty under Section 302 of IPC and sentenced him accordingly.

9. Let us now consider whether the judgment dated 15^th February, 2000 passed by the learned Additional Sessions Judge, 3rd Court at Alipore, should be sustained or not?

10. At first we take up the charge under Section 498A of IPC framed against both the appellants for consideration. It is evidently clear that the victim Manju Das married with the appellant No. 1 Subir Das @ Bapi on 18^th February, 1997 according to Hindu rites and customs which was ultimately registered on 8th March, 1997. Since marriage the victim spent her conjugal life in her matrimonial house at 1/98, Naktala, P.S. Jadavpur, Kolkata 47. However, sometime thereafter the trouble began. It transpires from the evidence of P.W. 1 that her daughter used to complain before her about the torture upon her by both the appellants physically and mentally for non-payment of dowry and in spite of her effort to solve the problem the appellant No. 1 avoided her. The evidence of Subrata Majumder, P.W. 2. son-in-law of P.W. 1 also narrated in his evidence that before death of the victim the marital relation between Subir Das and the victim was very bad and both the appellants used to torture the victim, Manju, physically almost everyday. This witness also spelt out in his evidence that he heard about this torture from the victim Manju and even Manju expressed before him her apprehension that she might be killed by her husband and mother-in-law (appellants). The testimony of P.W. 3, Narendra Nath Dutta, brother of the victim also disclosed that after marriage the victim enjoyed her marital life happily for two/three months and thereafter both the appellants started torture upon her physically and mentally and he heard this from the victim Manju. P.W. 6 Anju Majumder, sister of the victim also stated in her evidence that the marital life of the victim was very bitter and unhappy and the victim told her personally about the bitter relationship with her husband (appellant No. 1). It is also stated to her by the victim that she might be killed by the accused/appellants. The incident of torture upon the victim for non-payment of the demand for dowry by the in-laws has been spelt out by the witnesses referred to above and their evidence corroborate each other. That apart P.W. 4, N.C. Das a neighbour of the appellants residing at premises No. 2/98, Naktala, Kolkata 47, who live adjacent to the house of appellants has confirmed in his evidence the incident of quarrel with the victim, Manju Das, picked up by the appellants. It is also stated by him that the appellants made the life of the victim miserable.

11. In this connection let us see what are the essential ingredients of Section 498A of IPC. The essential ingredients of the offence under Section 498A are as follows:

(1) The woman was married.

(2) She was subjected to cruelty;

(3) Such cruelty consisted in-

(i) any wilful conduct as was likely to drive such woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mentally or physically;

(ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the unlawful demand;

(iii) the woman was subjected to such cruelty by her husband or any relation of her husband.

12. It is evidently clear from the evidence adduced by the prosecution witnesses that the victim was married with the appellant No. 1 and after marriage she spent her conjugal life at the matrimonial home, situated at premises No. 1/98, Naktala, P.S. Jadavpur, Kolkata 47, and there she spent her conjugal life happily for two/three months and thereafter as she could not meet the demand for dowry raised by the appellants, she was subjected to torture both physically and mentally by the appellants. The testimonies of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 6 have clearly established that the victim was subjected to cruelty for non-payment of the demand for dowry made by the appellants.

13. Therefore, the appellants had been rightly found guilty under Section 498A of IPC and accordingly they were convicted and sentenced referred to above by the Trial Court. The question of conviction and sentence under Section 498A of IPC imposed upon the appellant No. 1 does not call for any interference by this Court. However, as regards the sentence imposed upon the appellant No. 2, Sova Das, it is submitted by the learned Advocate for the appellant, Mr. Joymalya Bagchi, that the appellant Sova Das who was examined under Section 313 of Cr.PC of 12^th January, 2000, was aged about 77 years and as on today she has become 83 years old and this appellant, Sova Das during the period of investigation or trial was detained in custody from 30^th May, 1998 till she was granted bail by the Court on 4^th August, 1998. In the circumstances, it is submitted by him that the Court should affirm the conviction and sentence of fine imposed upon appellant No. 2, 5ova Das, but the substantive sentence imposed upon her by the Trial Court should be reduced to three months instead of two years. The learned Prosecutor, Mr. Ashim Roy, appearing with Joy Sengupta on behalf of the State, in this connection submitted that considering the old age of the appellant No. 2, Sova Das the Court may pass any order as it may deem fit and proper. Since we are to consider the other charges against the appellants we will take up this matter for decision in the concluding portion of the judgment.

14. Let us now consider the charge under Section 302 of IPC framed against appellant No. 1 Subir Das @ Bapi. It is evidently clear that on receiving information from an unknown person that Manju Das was admitted into the Bangur Hospital, P.W. 1, P.W. 2. P.W. 3 and P.W. 6 rushed to Bangur Hospital on 26th May, 1998 and found the victim lying in a bed with burn injuries. It transpires from the evidence that the victim was admitted into the Bangur Hospital by her husband, appellant No. 1, Subir Das. The testimonies of P.W. 1, P.W. 2, P.W. 3 and P.W. 6 disclosed that the victim at Bangur Hospital told them that it was the appellant Nos. 1 and 2 i.e. Subir Das and Sova Das who wanted to kill her by sprinkling kerosene oil upon her body. Since better treatment was required for the patient, Manju Das, she was removed to S.S.K.M. Hospital on 27^th May, 1998. On 28^th May, 1998 a written complaint was lodged at Jadavpur P.S. by P.W. 1 with the help of P.W. 2 which registered Jadavpur P.S. Case No. 296 dated 28^th May, 1998 by filling up the formal FIR vide Exhibit 7. It appears from the evidence of P.W. 7, Dr. Anjali Banerjee. who was on duty in the Emergency Department of S.S.K.M. Hospital on 27^th May, 1998 that she recorded the dying declaration of the victim, Manju Das and noted the history told by Manju Das as homicidal burning by her husband Bapi Das. This dying declaration has been marked as Exhibit 3 duly signed by Dr. Anjali Banerjee who put her signature therein vide Exhibit 3/2 and at the time of recording of dying declaration, Narendra Nath Dutta, P.W. 3 brother of the victim was also present who also signed on the admission ticket vide Exhibit 3/1 where the dying declaration was recorded. It is explained by P.W. 7 in her evidence that as the patient voluntarily stated the case history implicating her husband Subir Das, she did not consider it necessary to append a certificate to the effect that the patient was conscious. P.W. 3 Narendra Nath Dutta, brother of the victim who was present at the S.S.K.M. Hospital on 27th May, 1998 stated in his evidence that his sister Manju Das was attended by Dr. Anjali Banerjee, P.W. 7 during her examination and in his presence Manju made a statement to Dr. Anjali Banerjee to the effect “homicidal burn by her husband Bapi Das” and he put his signature on the admission ticket vide Exhibit 3/1. That apart, during examination of burn injuries of Manju, Dr. Anjali Banerjee, P.W. 7 found burn over her face, right arm, forearms, chest and abdomen and half of both thighs. This Manju Das expired on 1^st June, 1998 due to 60% burn injuries, as it appears from Exhibit 5 for which inquest was held vide Exhibit 2 and Dr. A. K. Saha P.W. 11, who held P.M. examination on the deadbody of the victim and proved the P.M. report, Exhibit 6 found the following burn injuries involving a) face, (b) anterior chest and abdominal wall including right and left breast, (c) pubic region, (d) lateral aspect of back of chest and abdomen, (e) right and left thyis, (f) back of right and left leg, burnt and singing of abterior part of scalp hairs and right and left eyebrow and lashes and pubic hairs and he opined that the death was due to the effect of burn injury anti-mortem in nature. So it is proved in this case that the victim died due to burn injuries. Now the question is who killed her? In this connection it transpires from the evidence that the victim firstly made oral dying declaration before P.W. 1, P.W. 2, P.W. 3 and P.W. 6 at Bangur Hospital on 26^th May, 1998 and on 27^th May, 1998 when she was admitted to S.S.K.M. Hospital for better treatment she made a dying declaration implicating the appellants No. 1, Subir Das as the person who caused homicidal burn injuries on her. This dying declaration was made by the victim, Manju Das in presence of P.W. 7, Dr. Anjali Banerjee, which was also witnessed by the P.W. 3, brother of the victim. It is true that Dr. Anjali Banerjee did not append a certificate as to the fitness and capability of the victim for making dying declaration but she has explained in her evidence that as the patient was conscious and the statement was made voluntarily, it was not necessary for her to append a certificate with regard to the fitness and capability of the victim for making such dying declaration. That apart, the patient was conscious and capable of making dying declaration will appear from the evidence of P.W. 3 who witnessed the dying declaration made by the victim (Manju), recorded by Dr. Anjali Banerjee, P.W. 7 in his presence. In the dying declaration no signature of the victim, Manju Das was found but, that cannot discard the dying declaration made by her because she had suffered 60% burn injuries and due to such burn her right arm and forearms including other portions of the body were burnt and damaged. Therefore, in the circumstances, it was not possible for her to sign the statement. In the dying declaration Manju Das, the victim only implicated her husband as the person who is responsible for homicidal burn injuries sustained by her. This dying declaration Exhibit 3 made by the victim finds support from the oral testimonies of P.W. 4, N.C. Das, neighbour. It transpires from his evidence that he saw with his own eyes that appellant No. 1 Subir Das caught hold the neck of the victim while she was burning. He also affirms in his evidence that he made such statement before the I.O. but he does not know whether it was recorded by the I.O. or not. That apart the oral testimony of P.W. 5 Puja Das, daughter-in-law of P.W. 4, reveals that on the date of the incident she found the victim, Manju Das standing in naked condition outside the chowkat of her room with burn injury to her person when the accused Subir Das was found extinguishing the pieces of burn cloth under a guava tree at a distance of 4 to 5 cubits from the place where Manju was standing. The evidence of P.W. 4 shows that appellant No. 1 Subir Das instead of saving her wife from burning caught hold of her neck. P.W. 5, Puja Das also confirms that the accused Subir Das, appellant No. 1 who was present at the time of the incident did not try to save her wife, who was then burning. Therefore, the oral testimonies of P.W. 3, P.W. 4, P.W. 5 & P.W. 7 convincingly and satisfactorily lend support to dying declaration made by the victim, Manju Das implicating the appellant No. 1 Subir Das as the person who caused homicidal burn injury upon her and as a result the victim died due to 60% burn injuries vide Exhibit 5, and the P.M. report Exhibit 6 proved by P.W. 11 therefore, confirms that the death of the victim was due to burn injuries anti-mortem in nature and the dying declaration made by the victim corroborated by the witnesses referred to above further proves that the appellant No. 1 Subir Das @ Bapi Das had killed Manju Das by burning her and the burn injuries sustained by the victim was the cause of death which was homicidal and anti-mortem in nature.

15. Learned Advocate, Mr. Joymalya Bagchi, appearing on behalf of the appellants drawing our attention to the evidence on record submitted that the dying declaration recorded by P.W. 7 should not be accepted as no certificate was appended by the doctor regarding her fitness and capabilities of making such statement. Mr. Bagchi further pointed out that the dying declaration did not bear the signature of the victim and, therefore, Court in the circumstances suspect the dying declaration and should not accept it without necessary corroboration. In this connection Mr. Bagchi relied upon two decisions Laxmi v. Om Prakesh and Ors. and , P. Mani v. State of Tamil Nadu. Mr. Bagchi further submitted that in the circumstances the dying declaration should not be accepted by this Court as trustworthy for convicting appellant No. 1 under Section 302 of IPC. He, therefore, prayed that the accused/appellant No. 1 be acquitted of the charge under Section 302 of IPC.

16. Learned Prosecutor, Mr. Ashim Roy with Mr. Joy Sengupta appearing on behalf of the State drawing our attention to the evidence of P.W. 1, P.W. 3, P.W. 4, P.W. 5, P.W. 7 and P.W. 11, Exhibit 3, (dying declaration), Exhibit 5 (death certificate) and P.M. report, Exhibit 6, submitted that the victim was conscious while she was making dying declaration and the absence of certificate as to the consciousness, mental fitness and capability of making statement by P.W. 7, Dr. Anjali Banerjee will not make the dying declaration untrustworthy. It is also submitted by him that the dying declaration of Manju Das gets corroborated by the testimonies of P.W. 3, P.W. 7 and P.W. 4, P.W. 5 and it affirms that while the victim was burning the appellant No. 1, husband of the victim who was present there neither tried to save her nor he tried to extinguish fire. Learned Prosecutor. Mr. Roy relying upon the decision of Constitution Bench reported in 2002 Supreme Court Cases (Cri) 1491, Laxman v. State of Maharashtra submitted that mere non-observance of formalities by the doctor who recorded the dying declaration of the victim will not make it untrustworthy and inadmissible in evidence against the appellant.

17. We have seen the evidence on record and discussed the same in the foregoing paragraphs. We have also seen the two decisions cited by the learned Advocate for the appellants and, in our view, the decision cited by the Prosecutor in Laxman’s case (supra) is clearly applicable in this case and considering the facts and circumstances of this case, we are of the view, that the victim who sustained 60% burn injuries which includes her right arm and forearms was not in a position to sign the statement. That the victim was conscious at the time of making statement which was voluntary, has been explained by P.W. 7 in her evidence and P.W. 3 had the occasion to witness the dying declaration made by his sister, Manju Das before P.W. 7 which further proves that the patient was conscious at the time of making dying declaration. The attending circumstances dispelled by P.W. 4 & P.W. 5 including Dr. A.K. Saha, P.W. 11 lend support to the dying declaration made by the victim with regard to cause of her death and who was responsible for killing her with burn injuries. Thus, considering the evidence on record and totality of the circumstances, we are of the view, that it was the appellant No. 1 Subir Das who killed the victim Manju Das by causing burn injuries to her person which was homicidal and anti-mortem in nature and, we are of the view, that the dying declaration was voluntarily made by the victim while she was conscious and capable of making such statement and her declaration was fully trustworthy, correct and this dying declaration inspired our confidence to accept the same as voluntary without any hesitation. It is true that the situation in which a person is on the death bed is so solemn and serene, is the reason in law to accept veracity of his/her statement. It is for this reason the requirement of oath and cross-examination are dispensed with.

18. Learned Advocate, Mr. Bagchi drawing our attention to the deposition of P.W. 4 & P.W. 5 submitted that the seized articles produced before the Court wrapped with a paper dated 28th September, 1999 were not the seized articles of this case and, therefore, prosecution case against the appellants should not be believed as true. But we find from the record that the articles seized under a seizure list vide Exhibit 4 series by the I.O. P.W. 13 was made in the presence of P.W. 4 and P.W. 5 who put their signatures on the seizure list vide Exhibits 4/1 and 4/2. That apart, P.W. 4 identified the seized articles vide Material Exhibits I. Therefore, it cannot be said that the seized articles were not produced during trial by the prosecution. In the circumstances we are not convinced to accept the contention of the learned Advocate for the appellants in this regard. Mr. Bagchi further drawing our attention to the deposition of P.W. 4 as well as the deposition of P.W. 13 submitted that the statement of P.W. 4 that he saw appellant No. 1 Subir Das @ Bapi caught hold the neck of the victim while she was burning should not be accepted by this Court as he did not make any such statement before the I.O. But, this contention of the learned Advocate is also not acceptable because P.W. 4 has explained in his evidence that he made the statement to this effect before the I.O. but he does not know whether the I.O. recorded such statement or not. That apart Mr. Bagchi could not show before us that the previous statement of P.W. 4 was otherwise and it is not in conformity with the statement made by him before Court on the dock. In the circumstances, we are unable to accept the contention of the learned Advocate for the appellants and we find that there is no contradiction in the statement of P.W. 4 with regard to the fact that he saw the appellant caught hold the neck of the victim while she was burning.

19. Thus, considering the evidence on record and the attending circumstances of the case we find that the appellant No. 1 Subir Dad @ Bapi Das in jail was rightly convicted and sentenced under Section 498A/302 of IPC by the Trial Court, which does not call for any interference by this Court. We also find that the appellant No. 2 Sova Das was rightly convicted and sentenced to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months for the offence under Section 498A of IPC although she is not entitled to get any set off against imprisonment in default to payment of fine. However, considering the fact that the Sova Das, appellant No. 2, is now aged about 83 years we are of the view that the sentence of imprisonment imposed upon her under Section 498A of IPC should be reduced. Accordingly the sentence of imprisonment under Section 498A of IPC is reduced to three months instead of two years which should be set off under Section 428 of Cr.PC against the period of detention undergone by her during investigation or trial and with regard to merit no interference is called for.

20. In the circumstances, the appeal preferred by the appellants is dismissed with modification of the sentence of imprisonment imposed upon appellant No. 2, Sova Das.

21. Let a copy of this judgment be sent to the learned Additional Sessions Judge, 3rd Court, Alipore, 24(P) South, for issuing fresh jail warrant in the light of the judgment and the appellant No. 2 Sova Das is directed to surrender before the Additional Sessions Judge, 3rd Court, Alipore, 24(P) South, within 30 days from date to serve the sentence in default the Court below shall issue warrant of arrest against her.

Amit Talukdar, J.

22. I agree.

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