Calcutta High Court (Appellete Side)
Bijoy Mondal & Ors vs State Of West Bengal on 16 January, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Suvra Ghosh
C.R.A. 523 of 2013
Bijoy Mondal & Ors.
-Vs-
State of West Bengal
For the Appellant : Ms. Minoti Gomes, Adv.
Mr. K D Saha, Adv.
For the State: Mr. Saibal Bapuli .. Addl. Public Prosecutor
Mr. Bibaswar Bhattacharya, Adv.
Heard on : 16.01.2020
Judgment on: 16.01.2020
Joymalya Bagchi, J. :-
Panchami Mondal was burnt to death in the wee hours of 4.1.2003. She
was admitted to Malda district hospital with 60% burn injuries. On 6.1.2003, her
mother Teshraboty Mahato (P.W 1) lodged written complaint alleging Panchami
had been married to Dulal Mondal (P.W 10) ten years ago. From the marriage two
boys and a girl were born to the couple. On 3.1.2003, PW1 had gone to visit her
daughter at her matrimonial home. Her son-in-law had gone away to the market.
Appellants 2 and 3, Putul Mondal and Maya Mondal, wives of Bijoy and Mantu
Mondal respectively assaulted her daughter. When her son in law returned, she
narrated the incident to him. A quarrel ensued and the appellants tried to
assault her son in law with 'ramda' and 'hesua'. Around 2:00 am on the next day
i.e. 4.1.2003 while the victim was sleeping, the appellants dragged her to the
courtyard and set her on fire. She was shifted to Malda Sadar hospital. On the
written complaint of PW1, FIR was registered against the appellants. P.W 15 took
up the investigation of the case and in the course of investigation he recorded the
statement of the victim lady on 7.1.2003 (Exhibit11). Condition of the victim
deteriorated. On 25.1.2003 her statement was again recorded by P.W 8, treating
doctor in presence of staff nurse P.W 14 (Exhibit 3). Finally she breathed her last
on 3.3.2003.
In conclusion of investigation, charge sheet was filed against the appellants. The case was
committed to the court of sessions and transferred to the court of learned Additional Sessions
Judge, 5th Court, Malda for trial and disposal. Charges were framed under Sections 448/34,
326/34, 307/34 and 302/34 IPC. The appellants pleaded not guilty and claimed to be tried.
In the course of trial, the prosecution examined 15 witnesses to establish
its case and exhibited the two dying declarations of the victim namely, Exhibits 3
and 11. The defence of the appellants was one of innocence and false implication.
In conclusion of trial, the trial court by the impugned judgment and order dated
22/23.5.2013convicted the appellants for commission of offence punishable under sections 448/326/307/302/34 IPC and sentenced them to suffer rigorous imprisonments of various terms including life imprisonment for commission of offences including offence under section 302 IPC.
Ms. Gomes, learned counsel appearing for the appellants argued that none of the prosecution witnesses including the de facto complainant have supported the case. Even P.W.1, Teshraboty Mahato, mother of the victim and the victim's husband, P.W 10 Dulal Mondal, turned hostile and P.W. 10 claimed that his wife suffered accidental burn injuries from a lamp when she had gone to the bathroom. Dying declarations of the victim were belatedly recorded and are contradictory to one another. While in the first dying declaration it is alleged that Mantu held her and Bijoy set her on fire, in the latter declaration the deceased implicated all the appellants in the act of setting the victim on fire. In the light of the acrimonious relationship between the appellants and the deceased the aforesaid contradictory dying declarations ought not to be relied upon. Hence, appellants are entitled to an order of acquittal.
On the other hand, Mr. Bapuli appearing with Mr. Bhattacharya, learned counsel for the State argued that the dying declarations of the victim have clearly established the prosecution case beyond reasonable doubt. The substratum of dying declarations is substantially the same and implicated all the appellants. Minor variations with regard to the roles of the appellants in setting the deceased on fire would not affect the inherent truthfulness of the said dying declarations. In support of their submission they relied on Jagbir Singh v. State, 2019 (8) SCC
279. As most of the witnesses have turned declared hostile and have not supported the prosecution case, the case essentially hinges on the two dying declarations of the deceased.
The first dying declaration (Exhibit 11) was recorded by P.W 15, investigating officer on 7.1.2003. In the said dying declaration the victim narrated as follows:-
"On 3.1.03 at about 14.00 hours my 'jha' Putul Mondal wife of Bijoy Mondal tried to assault me and abused me regarding a land dispute about our paternal land. My mother was in my house and I slept with my mother on the veranda during the night of 3.1.2003. On 4.1.2003 about 2.30 hrs, I heard some noise that woke me up. After lighting the lantern, I went out to see wherefrom the noise was coming. At that time, Mantu Mondal, son of late Khagendranath Mondal, my brother in law grabbed me and another brother in law Bijoy Mondal poured kerosene on my body. I tried to resist them but I was over powered. Putul Mondal, wife of Bijoy Mondal, Maya Mondal wife of Mantu Mondal, Tall Mondal, son of Bijoy Mondal, Bishu Mondal, son of Mantu Mondal, Shankar Mondal, Jagadish Mondal were shouting that I be burnt alive. Shankar and Jagadish had 'hesua' with them and obstructed my mother to rescue me. I prayed to them to spare me but they did not do so. I screamed and cried for help. Bijoy Mondal lit my wearing apparels which were wet with kerosene with a gas lighter and set me ablaze. Then they all fled away. I ran here and there trying to extinguish the fire on my body but could not do so. After I sustained burn injury to this degree, my mother, brother in law Gopal Mondal and neighbour Bipen Mondal brought me to this hospital by a rickshaw van."
She was admitted in the Malda district hospital under P.W 8. The said medical officer recorded the subsequent dying declaration (Exhibit 3) in presence of on 25.1.2003 which is as follows:-
"On 3.1.2003 there was a quarrel between me and wives of Mantu and Bijoy over domestic affairs. They assaulted me. Bijoy and his wife threatened to set me on fire. Son of Bijoy also threatened me on same lines. Incident was reported at Old Malda Thana. At 9 p.m. Mantu and son of Bijoy entered the room with kerosene oil and asked for drinking water. Matter was reported to Abani Babu. At 2 a.m. I woke up from sleep. Mantu, Bijay, Maya, Putul Bishu and Tall dragged me from the bed, poured kerosene oil and set me on fire with a lighted matchstick. My mother took me to hospital."
Learned counsel for the appellants has criticised the aforesaid dying declarations on the premise that the manner and course of the incident as narrated therein are at variance to one another. While in the first dying declaration it is alleged that the deceased on hearing a noise had come out of her house when Mantu held her and Bijay poured kerosene oil and lit on fire and the others instigated, in the subsequent dying declaration active roles of the all the appellants in dragging the victim from her bed room, drowsing her with kerosene oil and then setting her on fire have been attributed.
It is further argued in the light of enmity between the appellants on the one hand and the deceased on the other hand false implication of all the appellants is highly probable.
Law relating to multiple dying declarations has been sufficiently enunciated by the Apex Court in Jagbir Singh (supra):-
"31.1. (i) Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
(ii) If there is nothing suspicious about the declaration, no corroboration may be necessary;
(iii) No doubt, the court must be satisfied that there is no tutoring or prompting;
(iv) The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration;
(v) Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;
(vi) However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable.
(vii) In such cases, where the inconsistencies go to some matter of detail or description but are incriminatory in nature as far as the accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
(viii) The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.
(ix) In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon?
Our conclusion on multiple dying declarations
32. We would think that on a conspectus of the law as laid down by this Court, when there are more than one dying declaration, and in the earlier dying declaration, the accused is not sought to be roped in but in the later dying declaration, a somersault is made by the deceased, the case must be decided on the facts of each case. The court will not be relieved of its duty to carefully examine the entirety of materials as also the circumstances surrounding the making of the different dying declarations. If the court finds that the incriminatory dying declaration brings out the truthful position particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made which involves, no doubt, ruling out tutoring and prompting and also the other evidence which support the contents of the incriminatory dying declaration, it can be acted upon. Equally, the circumstances which render the earlier dying declaration, worthy or unworthy of acceptance, can be considered."
In the present case, the dying declarations are not wholly irreconcilable but vary in some extent with regard to the incident and the roles of the appellants herein. Under such circumstances, it is the duty of the Court to assess which of the dying declarations and to what extent is it reliable and inspires confidence.
Although most of the witnesses including mother of the deceased P.W 1 and her husband P.W 10 have been declared hostile, assessment of their evidence, however would establish in the fateful morning the victim housewife had suffered burn injuries at the matrimonial home. Thereafter, she had been shifted to Malda district hospital where she breathed her last on 03.03.2003. A desperate attempt was made on the part of her husband, P.W.10 to save his relations i.e. the appellants by claiming that the victim had suffered accidental burn injuries. I give little credence to his version as he himself admitted that he was not present at the spot. On the other hand, the aforesaid dying declarations, (Exhibits 11&3) recorded in the hospitals show that the victim was set on fire resulting in her ultimate death. While struggling for life in the hospital she made an initial statement to the police officer, P.W.15 which is marked as exhibit 11. In the said declarations she claimed that there was a quarrel in the morning on 03.01.2003. She went to sleep with her mother. Around 2 A.M. she heard a noise and came out of the room. At that time Mantu grabbed her while Bijoy dowsed her with kerosene oil and set her on fire with a gas lighter. Other appellants were present and instigated Bijoy and Mantu. Subsequently, on 25.01.2003 she gave a slightly different version of the incident. She stated around 2 A.M. on 04.01.2003 while she was sleeping all the appellants dragged her out, dowsed her with kerosene oil and set her on fire. As discussed earlier, when there are multiple dying declarations it is the duty of the court to see whether the declarations may be reconciled with one another and if so the two dying declarations are to be assessed in the backdrop of the materials on record to come to a conclusion which one is to be relied upon. Applying the aforesaid ratio to the facts of the case, I am inclined to hold that the two dying declarations recorded in this case are not wholly irreconcilable and the prosecution case ought not to be rejected outright on such score. There is substantial corroboration in the two dying declarations, particularly, with regard to the roles of appellants, namely, Mantu and Bijoy in setting her on fire. However, there is substantial variation with regard to the roles of the other appellants, namely, Putul Mandal, Maya Mandal, Bishu Mandal, Sankar Mandal and Jagadish Mandal. While in the first declaration it is alleged that they were present at the spot and had instigated, in the latter dying declaration they have been attributed a more active role in dragging the victim, dowsing her with kerosene oil and setting her on fire. As the incident occurred in the house which is also occupied by the appellants (who are the in-laws of the deceased) their presence at the place of occurrence cannot be construed to be an incriminating circumstance. Furthermore, in the view of the acrimonious relationship between the parties, the possibility of the deceased implicating all the in-laws by exaggerating their roles in the incident also cannot be wholly ruled out. Under such circumstances, it is incumbent on the court to assess the two dying declarations and distil out the truth therefrom by ignoring the exaggerations therein which appear to be irreconcilable to one another. Endeavouring to do so, I am inclined to hold there is clear compatibility between the two dying declarations with regard to the roles of appellants no.1 & 5, namely, Bijoy Mondal and Mantu Mandal in setting the victim on fire. Accordingly, conviction and sentence of both the appellants are upheld. However, I am inclined to hold that there is substantial variation with regard to the roles to the attributed to the other appellants nos. 2 to 4, 6 & 7 in the incident. Therefore, it would not be prudent to implicate them in the crime in the light of such variations in the two dying declarations, particularly, as possibility of their false implication due to enmity cannot be ruled out. Hence, I am inclined to extend the benefit of doubt and acquit the said appellants nos. 2 to 4, 6 & 7 of all the charges levelled against them.
Convictions and sentence of appellant nos. 1 and 5 are upheld. Their bail bonds are cancelled and they are directed to surrender before the trial court forthwith and to serve out their sentences in accordance with law. In the event they fail to do so, trial court shall resort to appropriate processes for their apprehension and execution of the sentence in accordance with law.
The appellant nos. 2 to 4, 6 & 7, namely, Putul Mandal, Maya Mandal, Bishu Mandal, Sankar Mandal & Jagadish Mandal are acquitted of the charges levelled against them. They shall be discharged from their bail bond after 6 months in terms of Section 437A of the Code of Criminal Procedure. The appeal is allowed in part.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.) tkm/rkd&PA