242
AB/ASPA
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon’ble Mr. Justice Joymalya Bagchi
And
The Hon’ble Mr. Manojit Mandal
C.R.A. 351 of 2013
TARAK PAUL
VS
THE STATE OF WEST BENGAL
Amicus Curiae : Mr. Bibaswan Bhattacharya, Advocate
For the State : Ms. Sreyashi Biswas, Advocate
Heard on : February 18, 2019
Judgment on : February 18, 2019
Joymalya Bagchi, J. :
The appeal is directed against judgment and order dated 15th March, 2013
and 16th March, 2013 passed by learned Additional Sessions Judge, F.T.C. II,
Ranaghat, Nadia in Sessions Trial Case No.IX/3/12 arising out of Sessions Case
No. 41(2)/12 convicting the appellant for commission of offence punishable
under Sections 498A/304B of the Indian Penal Code and sentencing him to
suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in
default to suffer simple imprisonment for three months more for the offence
punishable under Section 498A of the Indian Penal Code and to suffer rigorous
imprisonment for ten years for the offence punishable under Section 304B of the
Indian Penal Code. Both the sentences to run concurrently.
The prosecution case as alleged against the appellant is to the effect that
on 5.6.2008 the victim Pinki Pal was married to the appellant. It was an
arranged marriage. Appellant used to come home in an intoxicated condition
and assault Pinki. Requests were made to the appellant not to torture his wife
but to no avail. Lastly on 2.10.2011 at about 7 p.m. Shankar Das, father of the
victim (P.W.1) came to know that the victim had been admitted at Saktinagar
Hospital with severe burns. The doctor referred the victim to Kolkata hospital for
treatment but due to poverty he could not shift his daughter. He came to know
that the appellant had poured kerosene oil on the victim and set her on fire. As
he was busy with the treatment of his daughter finally on 19.10.2011 he lodged
first information report resulting in registration of Taherpur P.S. Case No.317
dated 19.10.2011 under Sections 498A 326/307 of the Indian Penal Code.
Subsequently, the dying declaration of the victim was recorded by Investigating
Officer (P.W.14) and upon her death Section 302 IPC was added to the first
information report.
In conclusion of investigation, charge sheet was filed against the appellant
and the case was committed to the Court of Sessions and thereafter transferred
to the Court of Additional Sessions Judge, Fast Track Court II, Ranaghat, Nadia
for trial and disposal. Charges were framed under Sections 498A/304B/302 of
the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 15 witnesses and exhibited a
number of documents. The defence of the appellant was one of innocence and
false implication.
In conclusion of trial, the learned Trial Judge by the impugned judgment
and order dated 15th March, 2013 and 16th March, 2013 convicted and sentenced
the appellant, as aforesaid.
Hence, the present appeal. Since a co-ordinate bench of this court issued
rule for enhancement of sentence of the appellant, the appeal as well as the rule
for enhancement of sentence are taken up for hearing analogously.
Nobody appears for the appellant.
Mr. Bivashan Bhattacharya, learned Advocate is requested to appear in
this matter as amicus curiae and assist this court. He argued that the dying
declaration (Ext.3) recorded by the I.O. is of dubious origin. No doctor was
present at the time when the statement of the victim was recorded and no
certificate has been also appended to the dying declaration to show that the
victim was mentally alert and physically fit. Permission from the hospital
authorities to record the dying declaration by Investigating Officer has also not
been produced in court. On the other hand, P.W.4, Medical Officer who admitted
the victim recorded her statement in the medical papers (Ext.1) which discloses
that she set herself on fire. Hence, no reliance ought to be placed on Ext. 3 in
the facts of the case. With regard to the alleged oral dying declaration as deposed
by P.Ws. 2, 3 and other prosecution witnesses, it is submitted that their evidence
ought to be taken with a pinch of salt as the oral version of these interested
witnesses run counter to the contemporaneous written dying declaration
recorded by the Medical Officer (P.W.4), as aforesaid.
There is inordinate delay in lodging the first information report which also
militates against the credibility of the oral dying declaration allegedly made to the
prosecution witnesses. Had such declaration been made by the victim, P.W. 1
would have promptly lodged FIR against the appellant. He supplemented his
argument by stating there is no allegation in the first information report nor in
the dying declarations with regard to torture on the victim soon before her death
of the victim for or in connection with dowry to attract the provisions of Section
304B of the Indian Penal Code.
On the other hand, Ms. Biswas, learned lawyer appearing for the State
argued that the dying declaration recorded by P.W.4 ought not to be relied upon.
Such declaration was possibly made by the victim under the influence of the
appellant. On the other hand, the dying declaration recorded by P.W.14 in
presence of P.W.8 is corroborated by the evidence of other prosecution witnesses,
namely, P.Ws. 2, 3 and 5. Evidence on record also shows that the appellant
subjected the victim to torture on demands of dowry. Hence, the prosecution case
is proved beyond doubt and the appeal is liable to be dismissed. In view of the
fact that the appellant had murdered his wife as appearing from the dying
declaration (Ext. 3), sentence imposed on the appellant ought to be enhanced.
Prosecution has relied on the evidence of P.Ws. 1 and 2, the parents of the
victim, her uncle (P.W.5) and a neighbour (P.W.3) to prove that the victim had
been subjected to torture by the appellant during her matrimonial life which
commenced from 2008 on demands of dowry. P.Ws.2, 3 and 5 also claimed that
on the day of Maha Sasti during the Durga Puja of 2011, they received
information at 6 – 6.30 p.m. that the victim had suffered burn injuries. They
went to the hospital and P.W.2 claimed that while the victim was lying in the
ambulance she disclosed that the appellant had sprinkled kerosene oil on her
person and set her on fire. Thereafter the victim was admitted to the hospital.
P.Ws.3 and 5 also claimed that they came to know from the victim while
she was admitted in the hospital that the appellant had set her on fire. However,
the oral declaration as deposed by the said witnesses is not corroborated by
P.W.4, the Medical Officer who admitted the victim at Saktinagar Hospital. He
deposed on 2.10.2011 the victim was admitted under him with burn injuries. She
was conscious and her statement was recorded by him in the presence of the
staff nurse. He proved the bed head ticket where the statement of the victim is
recorded. The statement reads as follows :-
“As stated by Patient she was abused and slapped by her husband who
used to torture on her since married for four years. In mental anguish set herself
on fire by pouring k. oil”
The aforesaid statement of the victim recorded by P.W.4 clearly runs
contrary to the oral dying declaration claimed to have been made by the victim to
her mother (P.W.2) and other witnesses. It has been strenuously contended that
the victim was under the influence of the appellant at the time of admission and,
therefore, she made the aforesaid statement under his influence. It is difficult for
me to accept such contention in the light of the evidence of P.W.2 who claimed
she was present at the spot while the victim was in the ambulance even prior to
her admission at the hospital. Hence, the dying declaration recorded by P.W. 4 in
the medical papers with regard to suicidal burns was made after the arrival of
her parents, particularly, P.W.2, at the spot ruling out any chance of unilateral
pressure exerted upon the victim by the appellant at the time of making the
statement.
That apart, P.W.4 is an independent witness and has contemporaneously
recorded the declaration of the victim in the bed head ticket in the course of
discharge of his official duty. Evidence of such witness, therefore, carries much
weight and would naturally prevail over the oral deposition of the interested
witnesses, namely, P.Ws.1, 2, 3 and 5 with regard to the contrary oral dying
declaration deposed by them in Court.
I am also not impressed with the version of the aforesaid witnesses with
regard to oral dying declaration relating to homicidal burns in view of the
conduct of P.Ws.1 and 2 in not acting upon such statement and immediately
instituting a criminal case against the appellant. A faint explanation was offered
by P.W.1 in the FIR that he was busy with the treatment of his daughter and
hence, her lodged first information report after a lapse of 17 days. Had the
parents of the victim been informed that the appellant had set their daughter on
fire as claimed by them, can it be taken as a normal human conduct that they
would have kept mum for 17 long days before lodging the first information
report?
Hence, I am of the opinion that in the face of the dying declaration (Ext. 1)
recorded by P.W.4 in the medical papers at the stage of admission disclosing
suicidal burns, it is difficult for me to accept the contrary oral version of
interested witnesses that she disclosed that the appellant had set her on fire.
The other piece of evidence which has been strongly relied on by the
prosecution to argue a case of homicidal death is the subsequent dying
declaration (Ext. 3) of the victim recorded by P.W.14, Investigating Officer in the
presence of P.W.8. In the said statement the victim, inter alia, stated that on the
fateful night the appellant in an inebriated state had a scuffle with her. In the
course of the scuffle, he poured kerosene oil on her and when she fell down set
her on fire with a match stick.
Even in the aforesaid dying declaration recorded by the I.O. (P.W. 14), there
is no reference to any demand of dowry soon before the unnatural death of the
victim.
The aforesaid dying declaration (Ext. 3) is recorded under most suspicious
circumstances. P.W.14, Investigating Officer, recorded the dying declaration
during investigation without permission of the treating doctor or the
Superintendent of the Hospital. P.W.14 tried to cover up the aforesaid lacuna by
claiming that he had sent requisition to the Superintendent of the Hospital to
record the dying declaration of the victim. No such requisition was produced in
Court. P.W.14 also ignored the fact that an earlier declaration of the victim had
already been recorded by the doctor (P.W.4) in the medical papers at the time of
her admission and much prior to registration of FIR.
It has been argued that version of P.W. 14 is corroborated by P.W.8, a staff
nurse. I am unwilling to rely on the evidence of the aforesaid witnesses as
nothing has been placed on record to show that P.W.14 had sought for
permission from any medical professional to record the subsequent dying
declaration of the victim. P.W.14 has also not referred to the earlier dying
declaration of the victim recorded by P.W.4 in his deposition. No medical
personnel was examined to prove that the victim was in a fit state of mind to
make the dying declaration. In the absence of evidence of a medical expert, I am
unwilling to rely on the version of a staff nurse with regard to the capacity of the
victim to make the dying declaration. For the aforesaid reasons, I am not inclined
to rely on the dying declaration (Ext. 3) unilaterally recorded by the I.O. in this
case.
On the other hand, Ext. 1, dying declaration of the victim recorded by the
doctor (P.W. 4) at the time of her admission is the earliest version with regard to
the genesis of the incident. It was recorded by a disinterested medical
professional even before registration of the first information report. On the other
hand, the subsequent dying declaration (Ext.3) appears to be a product of
motivated investigation which was undertaken upon registration of first
information report lodged by P.W.s 17 days after the recording of the first dying
declaration (Ext. 1).
In Ext. 1 the victim stated that the appellant used to ill-treat and assault
her. She could not bear the continuous torture meted out to her during her
matrimonial life and finally, decided to end it by setting herself on fire. The
aforesaid dying declaration discloses a painful saga of torture and ill-treatment
meted out to the victim which ultimately instigated her to commit suicide. In
none of the dying declarations recorded in this case there is any reference to
torture upon the victim for or in connection with demand of dowry soon before
her death – an essential ingredient of the offence punishable under section 304B
of the Indian Penal Code.
Hence, I am of the opinion although the prosecution has been able to prove
the ingredients of the offence punishable under Section 498A of the Indian Penal
Code, it has failed to prove the ingredients of the offence punishable under
Section 304B of the Indian Penal Code as there is no reliable evidence that the
victim was subjected to torture for demand of dowry soon before her unnatural
death. There is however, ample material to show that the victim had been
subjected to torture which compelled her to commit suicide within four years of
marriage. The facts of the case also attract the statutory presumption under
Section 113A of the Evidence Act which the appellant has failed to rebut during
trial.
In the light of the aforesaid discussion while upholding the conviction of
the appellant under Section 498A of the Indian Penal Code, I am inclined to
convert the conviction of the appellant under Section 304B IPC to one punishable
under Section 306 IPC. Accordingly, conviction of the appellant is recorded for
commission of offence punishable under sections 498A/306 IPC.
As I am of the opinion that the prosecution was unable to remove doubts
with regard to the suspicious circumstances in which the subsequent dying
declaration (Exhibit-3) came to be recorded by the Investigating Officer without
permission or presence of medical personnel and as Exhibit-1 (earlier dying
declaration) speaks of suicidal burn, I am of the opinion that the instant case
does not call for enhancement of sentence imposed upon the appellant.
Accordingly, sentence imposed upon the appellant for the offence
punishable under section 498A IPC is upheld. Appellant is also directed to suffer
rigorous imprisonment for a period of ten years for the offence punishable under
Section 306 IPC. Both the sentences are directed to run concurrently.
The appeal and the Rule for enhancement of sentence are accordingly,
disposed of.
The period of detention, if any, undergone by the appellant during
investigation, enquiry and trial shall be set off against the substantive sentence
imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down
at once to the learned trial court.
I record my appreciation for the able assistance rendered by Mr. Bibaswan
Bhattacharya as amicus curiae in disposing of the appeal.
Photostat certified copy of this order, if applied for, be given to the parties
on priority basis on compliance of all formalities.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)