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.)