Calcutta High Court (Appellete Side)
Sanjib Sardar vs The State Of West Bengal on 7 February, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon'ble JUSTICE SANJIB BANERJEE
And The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY C.R.A. No.41 of 2011 SANJIB SARDAR
-VERSUS-
THE STATE OF WEST BENGAL
For the Appellant: Mr Manjit Singh, Adv.,
Mr Anand Keshari, Adv.
For the State: Mr Prasun Kumar Dutta, Adv.,
Ms Kakali Chatterjee, Adv.
For the De facto Complainant: Mr Sanjoy Banerjee, Adv.,
Mr Shaunak Ghosh, Adv.,
Ms Suveni Banerjee, Adv.
Hearing concluded on: January 31, 2017.
Date: February 7, 2017.
SANJIB BANERJEE, J. : -
The appellant has been convicted of murder for burning his wife to death and sentenced to rigorous imprisonment for life and pay a fine of Rs.10,000/-, with a default clause.
2. The incident occurred late on May 6, 2007. The victim suffered serious burn injuries and her cries broke the silence of the night and drew several of her neighbours to the house where the victim and the appellant had been residing for several months. The trial court accepted the statement attributed to the victim on May 9, 2007 when she was at the SSKM Hospital. The appellant claims that the veracity of such statement is in serious doubt, particularly since the document recording the nature of treatment administered to the victim on the relevant date did not surface in course of the trial. The appellant claims that the accounts of the several witnesses are contradictory, to the extent that it is not clear whether the victim was taken to the local nursing home by a van or by an ambulance. The appellant insinuates that a number of the witnesses may have been tutored as their evidence in course of the trial shows a remarkable improvement on the statements made by them to the investigating officer in implicating the appellant.
3. The dying declaration was recorded by the investigating officer at about 4.50 pm on May 9, 2007. It was signed by a resident medical officer at the hospital, who proved the document and the recording of the statement in his presence. The document also recorded that the statement had been made in the presence of a staff nurse. However, such staff nurse could not "recollect as to whether any statement was recorded by police at SSKM hospital in burnt ward in my presence or not."
4. The dying declaration is quite elaborate and refers to the appellant husband being "engaged illegally with a married woman ... Chutki". The victim appears to have referred to a friend in whom she confided regarding her marital discord. Such friend was not called as a witness. The victim apparently said that her parents-in-law and sister-in-law were "good men", but only her husband abused her. As to the circumstances leading up to the victim suffering burn injuries on May 6, 2007, she said as follows:
"My husband quarrel with me on 6-5-07 at 11 p.m. with a drunking condition and told that he will stay with chutki. He can not live with out chutki. Saying so, my husband took a kerosene jar and pured a little on his body and pured maxium on my body. As a result my body became weat in front side and the Harricane falldown and the fire became off. At the instruction of my husband I put fire in the hurricane by the gas lighter siting on the floor. At that time my husband pushed me on the firing hurricane and fire caught on my hole body. I cried out and tried to came out from room. But my husband has prevented me to go out and pushed me inside the room by his left hand. I felt on the floor towords the bed. Having seen my sound my husband purud water on my body. Many para people came and they rescue me. I do not know more. My husband is responsible for this incident. I am not able to signe as my hand became burnt."
5. The concerned doctor was called as a witness. He asserted that the statement of the victim was recorded in his presence and also in the presence of nurse Archana Dutta. He proved his signature and also proved the writing and signature of another doctor which appeared in the partial bed-head ticket that was tendered by the prosecution. In his cross-examination, the RMO maintained that the patient was in a "fit state of mind" when she made the statement, though he accepted that there was no endorsement in the document that the patient was conscious or competent to make the statement. He also admitted that he did not generally attend to the patient during her stay at the SSKM Hospital. In response to an unrelated question, the significance whereof will appear later in the discussion, he stated that patients suffering from septicemia should not have visitors "but now a days, it is not possible on the part of the staffs of the hospital to prevent outsiders to see the patient suffering from septicimia ..."
6. Apropos the dying declaration, the investigating officer admitted that he had not obtained the signature of the concerned staff nurse on the document and he did not endorse the fact that the victim was conscious or mentally fit to make the statement. He also accepted that he did not put any question to the victim whether she was making the statement voluntarily or whether she was able to make such statement. But the investigating officer asserted that he had made a prayer to the superintendent of the SSKM Hospital for recording the dying declaration of the victim. He maintained that after recording the statement he read over and explained the contents thereof to the victim "who admitted its correctness."
7. Ideally, a planned dying declaration should be obtained by an executive magistrate or the like in the presence of a doctor who would certify the mental and physical condition of the victim to make the statement. The declaration should also be in the language of the victim upon there being no prompting on the part of any other. However, there is no statutory form of a dying declaration and even a statement given under Section 161 of the Code to a police officer may be regarded as a dying declaration in view of Section 162(2) thereof. Judicial precedents instruct that if the court is satisfied as to the veracity of the declaration and the contents thereof, even if not corroborated, are not at great variance with the other evidence on record, the most informal recording of a statement may be accepted as a dying declaration and an element of sanctity attached thereto.
8. In this case, neither the investigating officer nor the concerned doctor may have had any motive to falsely implicate the appellant and, in any event, no suggestion to such end appears to have been put to either. Indeed, the protracted cross-examination of the investigating officer, if at all, brings out his balanced and reasonable stand and does not betray any over-zealous attempt to pluck the low hanging fruit by blaming the husband or seeking merely to take advantage of the principle embodied in Section 106 of the Evidence Act, 1872. The doctor was also steadfast in repelling the suggestions put to him doubting the veracity of the dying declaration. Both the investigating officer and the doctor testified that staff nurse Archana Dutta was present when the statement was recorded. It is unfortunate that the nurse could not recollect her presence when the statement was recorded and it is not necessary to read any motive into her apparent loss of memory since the dying declaration otherwise stands firm. Ideally, the prosecution should have exhibited the entire treatment sheet of the victim, particularly of May 9, 2007 when her statement was recorded; but the failure of the investigating agency to such extent has been made up by the corroboration of the essential part of the dying declaration in the evidence of the immediate post-occurrence witnesses. In any event, no question was put either to the doctor or the investigating officer regarding the treatment given to the victim on May 8, 2007 or May 9, 2007.
9. Neighbour Dipa Mondal claimed that she went to the victim's house after hearing her loud cries and found the victim having suffered burn injuries. She recounted that the victim accused the appellant of pouring kerosene on her body and setting her aflame. She claimed that such accusation was made by the victim in the presence of other neighbours who had also rushed in following the victim's cries for help. She also recounted that the victim confided in her of the matrimonial discord due to the appellant's alleged involvement with another lady. Dipa Mondal's testimony is attacked by the appellant on the ground that she claimed that the victim was taken to the local nursing home in an ambulance but the consistent stand of the other neighbours was that a cycle-van was used to ferry her out from her house. Another point of criticism of Dipa's statement is that she could not name the two or three other neighbours who were present at the house of the victim when she was also there. As to the first objection taken by the appellant, it appears to be a minor aberration that cannot demolish the essence of Dipa's testimony. Indeed, the cycle-van did not take the victim all the way to the local nursing home. Another witness, Kamal Mondal, asserted that he accompanied both the victim and the appellant in a taxi from the Sonarpur over-bridge to the Kamalgachi Life Line Nursing Home. It is also evident from the sketch-map prepared in course of the investigation that the place of occurrence was in a house on a narrow alley. The cycle-van must have been used to reach the main road or the nearest place where a vehicle could be arranged and a taxi was found at the Sonarpur over-bridge. As to the other criticism of Dipa's testimony for her failing to name the other neighbours who were present at the house of the victim, it is quite natural for a person to be unable to recall exactly who was present at a particular point of time when the focus may have been on the victim and not on imprinting in memory the names of the persons present.
10. The further aspect of Dipa's testimony is that no suggestion was put to the investigating officer that Dipa had not told the police of the victim having accused the appellant of pouring kerosene on her and setting her ablaze. Such aspect of the investigating officer's cross-examination stands out since the entire oral evidence of some of the other prosecution witnesses appears to have been read to the investigating officer in course of his cross- examination to ascertain whether all of what they said in court had been stated by them in course of the investigation.
11. The investigating officer denied that Dipa's sister Sudeshna Mondal had reported to him that the victim had accused the appellant of setting the victim on fire when Sudeshna visited the place of occurrence. Such police personnel also denied that witness Rajesh Kumar Gope had informed the police that the victim had accused the appellant of trying to kill her. The officer responded to another suggestion in his cross-examination by asserting that witness Pramila Mondal did not report to him that the victim told her that the appellant had poured kerosene on her and set her on fire. Though the suggestions put to the investigating officer qua the oral evidence of Sudeshna Mondal, Rajesh Kumar Gope and Pramila Mondal were exhaustive, the only suggestion given to the officer regarding Kamal Mondal's evidence was whether Kamal had alleged that Kamal had heard from Kamal's wife that the appellant herein was in an illicit relationship with some other. Significantly, the officer parried such suggestion by stating that Kamal had referred to the relationship but did not attribute his knowledge thereof to his wife. Most importantly, there was no suggestion to the investigating officer that Kamal did not report to the officer that the victim, while going to the local nursing home, blamed the appellant in Kamal's presence for setting her on fire. Kamal's evidence was that such accusation was made by the victim twice on the way to the local nursing home. Kamal claimed to have brought such fact to the notice of the police. Kamal appears to have accompanied the victim and the appellant to the local nursing home, both on the cycle-van and, thereafter, in the taxi.
12. Notwithstanding what came out in course of the cross-examination of the investigating officer, the statements made in court by the immediate post- occurrence witnesses appear, by and large, to be credible in their essence. The general picture painted by these witnesses is that late at night on May 6, 2007 they were woken up or they otherwise heard shouts of help or the like emanating from the house of the victim and the appellant; and, several of them rushed there. It took some time before the neighbours were let in to the house by the appellant. The neighbour who first arrived at the place of occurrence found the victim severely burnt and naked on the top half. One of the lady neighbours put a nightie on her. Some of the gentlemen neighbours realised the gravity of the situation and rushed out to organise a vehicle to take her to a hospital. All this while the victim appears to have accused her husband more than once of her pitiable plight; something that she repeated even in her distressed condition while being taken to the local nursing home. She was referred to the SSKM Hospital the next morning where she gave the statement on May 9, 2007 and, apparently, made an earlier oral declaration to PW-5 Aparna Dutta on May 8, 2007. Aparna Dutta testified that the victim's mother, the complainant, worked as a maid-servant at Aparna and her husband Utpal's house since 1990.
13. Aparna's testimony has been referred to herein at the end since her perceived noblesse oblige was used by the defence to try and beat the testimony of almost all of the prosecution witnesses. The trend of the cross-examination was that Aparna had tutored most of such witnesses to implicate the appellant though the post-occurrence witnesses had not initially claimed before the investigating officer that they had heard the victim accusing the appellant of perpetrating the crime on the victim. The trend of the cross-examination was also that Aparna had masterminded the prosecution and remote-controlled how the case was made out and presented against the appellant. The unmistakable insinuation even in course of this appeal is that Aparna had drawn her own conclusion as she was sympathetic to the mother of the victim and she strategised the case run against the appellant.
14. Though it came out in course of Aparna's cross-examination that she attended the court "each and every day on the date fixed" for the trial, the appellant could not make a dent in her assertion that on May 8, 2007 when she visited the SSKM Hospital, the victim told her that "her husband ... set fire on her body after pouring kerosene oil ..."
15. The appellant has referred to the report of the post-mortem examination conducted on the victim which spoke of accidental burns being attributed as the cause of death by the police on May 13, 2007. The appellant says that it is inconceivable that the investigating officer obtained a statement from the victim on May 9, 2007 to the effect that she had been set on fire by her husband, but even four days later the police would suggest at the time of the post-mortem examination that the burn injury was accidental. The appellant suggests that the information by the police to the autopsy surgeon as recorded in the post-mortem report clinches the matter that the dying declaration may have been prepared ex post facto and was not obtained when the patient was alive.
16. The very short answer to the seemingly overwhelming contradiction that the appellant seeks to beat the prosecution's case with, is in the proverbial right hand not knowing what was done by the left that is quite common to officialdom in this country. Whether it is because of lack of adequate infrastructure or personnel, a coordinated and well-constructed investigation in this country would still be in the realms of a dream. However, it does not take a Holmes or even a Kiriti to notice that the investigation was conducted by an officer from the Sonarpur PS, but the death occurred at SSKM Hospital and the post-mortem examination was conducted under the aegis of the Bhowanipur PS which may have had no inkling of the course of the investigation prior to the death of the patient at about 7 am on May 13, 2007. Since the appellant has drawn the attention of the court to the post-mortem report, it may do well to also notice that no soot was detected in the larynx or trachea of the deceased at the time of the autopsy. Thus, if the victim was otherwise capable of making a statement, the physical condition of her throat and her vocal cords may not have impaired her.
17. Despite the evidence crying out loud against the appellant, two aspects that come out of the dying declaration cannot be missed: that the appellant and the victim quarreled over the appellant's involvement with another woman immediately preceding incident; and, the appellant was in a drunken condition. In the circumstances, it appears likely that the appellant may have been deprived of his power of self-control and the robust denial by the wife to allow the appellant the pleasure of the company that he craved, may have been the provocation for the appellant pouring kerosene, first on himself and then on his wife, and then pushing her over the lamp when she attempted to light it. It has also come out in the evidence that the appellant suffered serious injuries on his left hand that allowed him to remain in hospital for a considerable period. The victim also claimed that the appellant poured water on her after she had caught fire.
18. The appellant's act may be seen to be covered by the first Exception to Section 300 of the Penal Code. Accordingly, the conviction of the appellant under Section 302 of the Penal Code by the order impugned dated December 20, 2010 and the consequent sentence of December 21, 2010 are set aside and the appellant is convicted under the first part of Section 304 of the Penal Code. The appellant is sentenced to rigorous imprisonment for ten years and fined Rs.5,000/-, in default whereof the appellant will suffer rigorous imprisonment for a further year. The period of detention already undergone should be set off.
19. Copies of this judgment be made over as expeditiously as possible to the appellant and to the correctional home where he is lodged. The lower court records be sent down forthwith with a direction to the trial court to take immediate appropriate steps in accordance with law.
(Sanjib Banerjee, J.) I agree.
(Siddhartha Chattopadhyay, J.)