Calcutta High Court (Appellete Side)
Upendra Nath Barman And Another vs The State Of West Bengal on 3 September, 2018
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 377 of 2006
Upendra Nath Barman and Another
Versus
The State of West Bengal
For the appellant : Mr. Amalesh Roy
Ms. Mousumi Bhowal
Ms. Suman Sehanabis
For the State : Mr. Binoy Panda
Mr. Subham Bhakat
.....Advocates
Heard on : 16.05.2018, 17.05.2018
Judgment on : 03.09.2018
Jay Sengupta, J.:
1. This appeal is directed against a judgment and order dated 9th March 2003 passed by the Learned Additional Sessions Judge, Fast Track Court, Dinhata, Cooch Behar in Sessions Case No. 94/2003:Sessions Trial No. 3/Nov/ 2003, thereby convicting the appellants under Sections 302, 498A read with Section 34 of the Indian Penal Code and sentencing each of them to life imprisonment and to pay fine of Rs. 10,000/- in default to suffer for the rigorous imprisonment for 2 years for the offence under Sections 302, 34 and to rigorous imprisonment for 3 years and to pay fine of Rs. 3000/-, in default to suffer rigorous imprisonment for 6 months for the offence under Sections 498A, 34. The appellant no. 1 was the husband of the victim/deceased and the appellant no. 2 was her mother-in-law.
2. On 3rd October 2002 at about 20:35 hours, PW 19, a Sub-Inspector of Police lodged a suo motu First Information Report against the appellant. It was alleged that one Jyotsna Burman (22 years), who was admitted in hospital on 17th September 2002, succumbed to her injuries a 28th September 2002. It was alleged that the victim was married to the appellant no. 1 about two years ago and since then, she was subjected to mental and physical torture by the appellants. The victim made a dying declaration before an attending medical officer at Sitai BPHC and also as recorded by a Learned Magistrate at M.J.N. S.D. Hospital, Cooch Behar. In her dying declaration at Sitai BPHC, the victim stated that the appellants had poured kerosene on her body and set her on fire on 17th September 2002 at 18:00 hours.
3. Investigation commenced. The post mortem report gave the cause of death as due to shock from the stated burn injury, which was ante-mortem in nature. Witnesses were examined and relevant documents were seized. A charge sheet was submitted and finally on 5th November 2003, charges were framed against the appellants under Sections 498A and 302 read with Section 34 of the Indian Penal Code.
4. The prosecution examined as many as 20 witnesses and relied on three dying declarations, among other things, to prove its case. The defence case appeared to be a denial of the prosecution case.
5. PW 1 was a witness to the first dying declaration (Ext.1) of the victim lady before a doctor (PW 16) at Sitai BPHC. But, in the cross-examination he stated that no deposition was made in his presence. PW 2 was another witness to the first dying declaration recorded by a doctor. She too stated that the statement was recorded in their presence. PW 3 another witness to the first dying declaration deposed that although she was present at the time of examination of the patient, she did not listen to what the victim stated. But, she admitted her signature on the said dying declaration. PW 4 was a doctor who examined the victim lady at about 1:10 a.m. at Mathabhanga S.D. Hospital on 18.09.2002. He found her mentally fit to give a dying declaration. He deposed that she was able to comprehend the question put and was fit to answer. The BDO recorded the second dying declaration (Ext. 2) of the victim lady at Mathabhanga S.D. Hospital in the midnight of 17.09.2002/18.09.2002 and PW 4 (doctor) signed on the same as a witness. His cross-examination was declined. PW 5 was a staff nurse at the MJN Hospital, Cooch Behar. She was a witness to the dying declaration recorded before the Learned Executive Magistrate (PW 18). This was in fact the third dying declaration (Ext. 3) given by the victim lady. PW 6 was the brother of the victim lady and was a witness to the second as well as the third dying declarations. He was declared hostile. He deposed that owing to his disturbed mental condition, he could not follow the statement of the victim at the time of recording of the second dying declaration. Even in respect of his signature on the third dying declaration he deposed that he had failed to listen to what the victim had stated. PW 7 was the mother of the victim lady who was also declared hostile. In her cross by the defence she went on to add that after her marriage the victim lady was living peacefully. PWs 8, 9 and 11 were tendered in evidence. PW 10 did not say much either. PW 12 was a nursing staff attached to the Mathabhanga SD Hospital. She deposed that the (second) dying declaration was recorded by PW 4, a doctor in her presence where the patient Jyotsna Barman stated that her husband and mother-in-law had set her on fire by pouring kerosene oil. PW 13 was a nursing staff attached to the Sitai BPHC. She was a witness to the first dying declaration and deposed that the same was made by the victim in front of her and the doctor Champak Banerjee (PW 16) whose signature she was acquainted with. PW 14 was an Assistant Sub Inspector of Police and was a witness to the (third) dying declaration. He deposed that the victim lady stated that her husband and mother-in-law had set her on fire by pouring kerosene oil. PW 15 was an Assistant Sub Inspector of Police and was a witness to the inquest done on the dead body by a Learned Executive Magistrate. PW 16 was the doctor who recorded the (first) dying declaration of the victim lady in presence of witnesses PWs 2 and 3. He deposed that on asking, the patient disclosed that she had been set in flame by her husband and mother-in-law by pouring kerosene. PW 17 was a doctor who conducted the post mortem examination on the dead body of the victim lady. He found superficial burns over the body, in some areas epidermis had been peeled off exposing the underlying congested dermis. In his opinion the death was due to shock from the said burn injuries, which were ante-mortem in nature. He proved the post mortem report. In the cross, he stated that the case was of nearly 100% burn injury. PW 18 was the Learned Deputy Magistrate who recorded the victim's (third) dying declaration. He deposed that prior to the recording of a statement she examined her as to her mental fitness. He vouched that the victim had made such a statement in full senses. He stated that the victim deposed that her mother-in-law had poured kerosene on her body and set her in flame and that her husband caught her hands and mouth so that she could not move and resist. PW 19 was a Sub Inspector of Police. He suo moto filed the First Information Report in this case. PW 20 was the Investigating Officer of the case. He seized some bottles of kerosene oil and burnt apparels and one match box from the house of the accused. He arrested the accused and obtained the dying declarations of the victim. At the conclusion of the investigation, he submitted a charge-sheet against the appellants under Sections 498A and 302 of the Penal Code.
6. Mr. Amalesh Roy, the Learned Advocate appearing on behalf of the appellants submits that the impugned judgment and order of conviction and sentence cannot be sustained either in law or in facts. He submits that although the presence of the husband and the mother-in-law of the victim at the time of occurrence was not disputed in the dying declarations, but they are completely discrepant. He submits that while the husband and the mother-in-law were both implicated in the first dying declaration, in the second dying declaration it was stated that kerosene was poured by the husband, but the mother-in-law was present. In the third dying declaration it was stated that the mother-in-law poured kerosene and the husband caught hold of the victim. He submits that the inherent contradictions between the three dying declarations only imply that none of these can be believed. One really cannot pick and choose arbitrarily any version given in this three discrepant dying declarations as true. The Learned Advocate further submits that while in the second dying declaration a certificate was present regarding alertness of the victim, but the same was not there in the first dying declaration. He submits that as regards the first dying declaration, PW 3, a nursing staff and a witness to the same deposed that she did not listen to the victim's statement, but simply signed it. He also submits the BDO, a witness for the second dying declaration was surprisingly not examined. In fact, PW 12 a witness to the second dying declaration admitted in the cross-examination that he could not say who was implicated in the same. The Learned Advocate also submits that one fails to understand what was the need for a third dying declaration when the second one was apparently quite cogent and detailed. The learned Advocate appearing on behalf of the appellants relies on a few decisions as regards dying declaration. On the question of consistency or inconsistency in multiple dying declarations and their effect on prosecution, he relies on the following decisions - (i) 2008 (5) SCC 468, (ii) AIR 1993 SC 374, (iii) 2016 (14) SCC 151, (iv) 2009 (15) SCC 120 , (v) 2010 (2) SCC 85, (vi) 2007 (13) SCC 112, (vii) 2005 (9) SCC 769, (viii) 2008 (16) SCC 705, (ix) AIR 2007 SC 1368, (x) 2006 (12) SCC 283. On the question of whether a victim suffering burn injuries could sign on a dying declaration, the Learned Advocate relied on AIR 1998 SC 2809.
7. Mr. Binoy Panda, the Learned Advocate appearing on behalf of the State strongly supports the conviction and sentence. He submits that the third dying declaration should be relied upon as it is quite cogent and adherent to all legal norms. He submits that the victim did not name the brother-in-law or the father-in-law, but only named the husband and mother-in-law and argued that as such, the question of false implication did not arise. This dying declaration was recorded by an Executive Magistrate in presence of independent witnesses. He further submits that even the first dying declaration can be relied on. It is not much different from the version given in the third dying declaration. He explains that the reason for recording so many dying declarations may be a lack of co-ordination between different departments. This, by any stretch of imagination, cannot weaken a prosecution.
8. It appears that the present case is based mainly on the dying declarations purportedly given by the victim lady. These are of course to be seen in the light of the medical evidence. It is not in doubt that both the husband and the mother-in-law of the victim lady were present at the place and time of occurrence. A difference, if any, in the versions contained in the three dying declarations is with regard to the role played by each.
9. The first dying declaration was recorded at Sitai BPHC, Cooch Behar on 17th September 2002 at about 7:20 p.m. by PW 16, a doctor in the presence of three members of the nursing staff - 2, 3 and 13. In that dying declaration the victim stated that her husband and mother-in-law poured kerosene oil on her body after pressing her mouth and set her on fire. This was a short dying declaration. But it clearly implicated the appellants as it indicated the presence of both the appellants at the time and place of occurrence. Although it was argued that there was no statement about the mental alertness of the victim appended to the dying declaration, PW 16 the doctor recording it strongly vouched about recording the same as stated by the victim and quite surprisingly there was no cross-examination made in this regard. PW 2 deposed that the statement was indeed recorded in her presence. But, PW 3 stated that although he signed on the dying declaration as a witness he did not listen to what the victim had stated. PW 13, on the other hand, not only admitted her signature on the dying declaration but she recollected that the victim had made the statement in front of them that she had been set on fire by her husband and in-law.
10. The second dying declaration was a rather lengthy one and was in a question and answer form. This was recorded at the Mathabhanga SD Hospital on 18th September 2002 at about 0.20 a.m. by a doctor PW 4 in the presence of witnesses PW 6 and PW 12. A certificate was given at the beginning that the female patient was mentally sound to give a dying declaration. To the question as to how she was burnt, the victim replied that her husband set her on fire. To another question about the presence at the time of occurrence, she stated that nobody except her husband and mother- in-law were present there. To another question about how 'they' set her on fire, she answered that 'they' set her on fire with kerosene oil. Therefore, it is quite evident that the victim was reacting to particular questions put to her and did not state facts at her own instance. Had she done so spontaneously, the actual facts possibly would have come out in sequence. So there is a need for a harmonious construction of the questions and answers recorded in the second dying declaration. If one does so carefully, it becomes clear that at some point the husband might have initiated the attack by pouring kerosene, but both the husband as well as the mother-in-law were present at the time of assault and they both effectively set the victim on fire. The purported anomaly between the second dying declaration and the two others are thus not so stark and have been quite exaggerated by the defence. As regards the second dying declaration, PW 6 admitted his signature on the dying declaration, but deposed that due to his disturbed mental condition he could not follow the victim's statement at that time. PW 12 a nursing staff not only admitted her signature on the second dying declaration but also gave out the crux of the questions and answers that according to the victim, her husband and mother-in-law had set her on fire with kerosene oil.
11. The third dying declaration of the victim lady was recorded by an Executive Magistrate PW 18 in the presence of PW 5, a nursing staff, PW 14 a police officer and PW 6 the victim's father on 18th September 2002 at the MJN Hospital at about 5:30 p.m. Although in question answer form, this was by far the most cogent and objective dying declaration of all. To a question about how and where she was burnt, the victim stated that in her husband's mess her mother-in-law poured kerosene oil and set her on fire and then her husband caught her hand and mouth forcibly so that she could not move. This version does not necessarily militate against overall picture that it were the husband and the mother-in-law of the victim who killed her by setting her on fire by pouring kerosene. Although PW 6 turned hostile despite admitting his signature on the dying declaration, PW 5 clearly supported the factum of recording of this dying declaration and PW 14 who admitted his signature on the dying declaration went on to depose that the patient had stated that her husband and mother-in-law had set her on fire by pouring kerosene oil.
12. Therefore, as is the difficulty in a declaration in question and answer form, the person who makes the statement often goes by the particular question that is being put and in a mentally and physically disturbed state, might stray from the exact sequence of events. But, one thing was very consistent in all the three dying declarations that it was the present appellants who had set the victim lady on fire by pouring kerosene oil. The appellants might have poured kerosene at different points. But they were both present there. And none of them did anything to prevent the other from committing such crime. The appellants, in fact, aided and abetted each other in the commission of such heinous offence. The purported difference between the three dying declarations are indeed quite overstated.
13. The dying declarations were recorded by independent responsible citizens - doctors and a Magistrate. There is no way one can question their credibility. There is no allegation of tutoring either as the victim's own family members deserted her and turned hostile. If the victim wanted to falsely implicate the in-laws, she could have named the father-in-law and the father-in-law too. In any event the contents of the dying declarations were not so divergent as would be evident from the earlier discussions. The dying declarations, especially the first and the third ones appear to be very convincing.
14. Moreover, the medical evidence as adduced by the treating doctors as well as the post mortem doctor clearly corroborates the dying declarations and supports the prosecution case.
15. The multiple decisions cited by the Learned Advocate for the appellants lay down well settled principles of law. The main crux of all these decisions except one is that in case of multiple dying declarations that materially differ from each other, one has to assess the evidence more cautiously and as a matter of prudence, may look for corroboration from any other material. First, the facts in those cases are very different from the facts of the present case. Secondly, in the present case the differences in the in the three dying declarations do not appear to be so material or inexplicable. Therefore, these settled principles of law do not come in the way of relying on the instant dying declarations.
16. The reliance on the ratio laid down in AIR 1998 SC 2809 as regards putting of the thumb impression of a severely burnt victim on a dying declaration is again quite well settled. But, the facts in the present case are quite different. Unlike here, there despite 100% burns, the thumb marks had clear ridges and curves and that is why, the dying declaration was questioned.
17. The evidence and other materials on record, thus, unerringly point towards the guilt of the appellants so far the charge of murder is concerned. But, on the charge under Section 498A of the Penal Code, the evidence is clearly insufficient.
18. In view of the above discussions, we hold that the prosecution case for the murder of the victim has been proved beyond any reasonable doubt against the appellants. But, the charge of inflicting cruelty upon the victim as contemplated under Section 498A of the Penal Code could not be proved against them. Therefore, we uphold the conviction and sentence of the appellants under Sections 302, 34 of the Penal Code as ordained in the judgement and order dated 9th March 2003 passed by the Learned Additional Sessions Judge, Fast Track Court, Dinhata, Cooch Behar in Sessions Case No. 94/2003:Session Trial No. 3/Nov/2003 while we set aside the conviction and sentence passed under Sections 498A, 34 of the Penal Code vide that order. The appeal is thus partly allowed.
19. A copy of the judgment along with the Lower Court records may be sent down to the learned Trial Court forthwith for information and necessary action.
20. Urgent photostat certified copies of this judgment may be delivered to the learned Advocate for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)