Calcutta High Court (Appellete Side)
Tarak Paul vs The State Of West Bengal on 18 February, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
242
AB/AS&PA
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.)