Calcutta High Court (Appellete Side)
Dhiraj Sarkhel & Anr vs The State Of West Bengal on 1 March, 2016
Author: R. K. Bag
Bench: R. K. Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice R. K. Bag, J. [Reportable]
C.R.A. No. 43 Of 2011
Dhiraj Sarkhel & Anr.
V.
The State of West Bengal
For the Appellants : Mr. Satarup Purkayestha,
For the State : Ms. Faria Hossain,
Mr. Pawan Kumar Gupta,
Heard on : 28.01.2016, 04.02.2016
Judgment on : 01.03.2016
R. K. Bag, J.
This appeal arises out of judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, 5th Court, Barasat, North 24-Parganas in Sessions Trial No.1(9) of 2001, by which Learned Judge of the trial court sentenced both the appellants to suffer rigorous imprisonment for six years each and to pay fine for the offence under Section 306 of the Indian Penal Code and to suffer rigorous imprisonment for three years each and to pay fine for the offence under Section 498A of the Indian Penal Code.
2. The backdrop of conviction and sentence of the appellants by the trial court is as follows: On January 12, 2001 the de facto complainant - Subhas Chandra Roy filed a written complaint before the Inspector- in-charge of Ghola Police Station on the basis of which Ghola Police Station Case No.6 dated January 12, 2001 under Sections 498A/326/109 of the Indian Penal Code came into existence. The contents of the said written complaint disclose that on June 11, 2000 the victim Gouri Sarkhel aged about 39 years was married to the appellant Dhiraj Sarkhel as per Hindu rites and religion. The appellant Dhiraj Sarkhel had one daughter named Madhubrita Sarkhel aged about 20 years from his first wife since deceased. It is alleged in the said written complaint that the appellants - Dhiraj and his daughter Madhubrita used to inflict physical and mental torture on the victim Gouri Sarkhel. It is further alleged that on January 12, 2001 at about 7.50 a.m. the de facto complainant got information over telephone that his sister Gouri Sarkhel sustained burn injuries to the extent of 80% by making an attempt to commit suicide by pouring kerosene oil on her body and setting herself on fire. It is also alleged by the elder brother of the victim Gouri Sarkhel in the written complaint that Gouri attempted to commit suicide as she could not bear the torture inflicted on her by her husband and step daughter. The victim Gouri was admitted to Nil Ratan Sarkar Medical College & Hospital (hereinafter referred to as "NRS Hospital") in critical condition.
3. The police started investigation of Ghola Police Station Case No.6 dated January 12, 2001 under Sections 498A/326/109 of the Indian Penal Code. One Shibdev Sarkar (PW18), Sub-Inspector of Police recorded the statement of the victim Gouri in NRS Hospital on January 12, 2001. Subsequently, the victim Gouri was shifted from NRS Hospital to Critical and Trauma Hospital for better treatment. The Investigating Officer of the case (PW19) recorded another dying declaration of the victim Gouri in Critical and Trauma Hospital on January 16, 2001. Ultimately, on January 21, 2001 victim Gouri succumb to the burn injuries. The police submitted chargesheet against both the appellants disclosing offence under Section 302 of the Indian Penal Code amongst other offences under the said Code. The Learned Additional Sessions Judge framed the charge against both the appellants under Section 302 of the Indian Penal Code and alternatively under Section 306 of the Indian Penal Code and also under Section 498A of the Indian Penal Code. On conclusion of trial both the appellants were convicted and sentenced for the offence under Section 306 of the Indian Penal Code and also for the offence under Section 498A of the Indian Penal Code.
4. Mr. Satarup Purkayestha, Learned Counsel for the appellants contends that both the dying declarations of the deceased Gouri are not voluntary and truthful. Mr. Purkayestha has made elaborate submission to show that the deceased Gouri was not mentally alert after sustaining 80% burn injuries and as such the statement given by her without obtaining certificate from the doctor about mental fitness of Gouri cannot be relied upon. He further submits that Gouri lost her senses in the evening on the date of the incident and as such the second dying declaration recorded after four days of the incident in presence of the relative and elder brother of the deceased Gouri cannot have any credibility, particularly when the certificate of the doctor about mental fitness of the deceased Gouri was not obtained by the Investigating Officer at the time of recording the second dying declaration. Mr. Purkayestha has relied upon decisions of the Supreme Court in "Nallapati Sivaiah V. Sub-Divisional Officer"
reported in (2008) 1 C.Cr.LR (SC) 269, "Mehiboobsab Abbasabi Nadaf V. State of Karnataka" reported in (2007) 8 SCR 713 and "State of Punjab V. Parveen Kumar" reported in (2005) 1 C.Cr.LR (SC) 501 in support of the contention that inconsistent dying declaration without obtaining the certificate of the doctor about mental fitness of the deceased cannot be relied upon as voluntary and truthful to form the basis of conviction of the appellants.
5. Mr. Purkayestha argues that the framing of charge under Section 302 of the Indian Penal Code and alternative charge under Sections 306/498A of the Indian Penal Code by Learned Judge of the trial court has caused prejudice to the appellants, because the appellants are not aware whether they are accused of committing murder of the deceased or they are accused of committing abetment of commission of suicide of the deceased. By referring to the oral and documentary evidence on record Mr. Purkayestha has tried to explain that the conduct of the husband and the step daughter of the deceased Gouri is quite natural in the backgroud of second marriage of the appellant Dhiraj after death of his first wife. According to Mr. Purkayestha, playing sound system in high volume and demand for serving food to the friends from the deceased Gouri by the appellant Madhubrita, cannot amount to "cruelty" within the meaning of Section 498A of the Indian Penal Code. The gist of submission of Mr. Purkayestha is that the prosecution has failed to adduce sufficient evidence to establish that the deceased Gouri was subjected to cruelty by the appellants and thereby the deceased Gouri committed suicide.
6. Ms. Faria Hossain, Learned Counsel assisted by Mr. Pawan Kumar Gupta, Learned Counsel for the State contends that there is no requirement of law to obtain the certificate of the doctor about mental fitness of the victim for recording the statement relating to cause of death of the victim. By referring to the decisions of five Judges' Bench in "Laxman V. State of Maharashtra" reported in AIR 2002 SC 2973, Ms. Hossain submits that the certificate of the doctor with regard to mental alertness of the victim for recording dying declaration is a rule of caution and not rule of law. She argues that the Court can rely on the dying declaration of the deceased if there is evidence to indicate that the deceased was in a fit mental state at the time of giving the statement and she was not under the influence of any outsider or relative at the time of giving the statement, even when the certificate of the doctor is not obtained about mental fitness of the deceased for recording the dying declaration. Ms. Hossain has also relied on the decision of the Supreme Court in "Koli Chunilal Savji V. State of Gujarat" reported in AIR 1999 SC 3695 in support of her above contention.
7. By referring to the provision of Section 221 of the Code of Criminal Procedure Ms. Hossain contends that when there is doubt which of several offences has been committed by the accused person, the accused person may be charged for committing all or any of such offences or he may be charged in the alternative for having committed one of the said offences. According to Ms. Hossain, the framing of alternative charge against the appellants by Learned Judge of the trial court is justified under the provisions of Section 221 of the Code of Criminal Procedure. By pointing out oral and documentary evidence adduced by the parties before the trial court Ms. Hossain submits that the landlady of the appellants and some neighbours of the appellants have proved the oral dying declaration of the deceased as to how she suffered burn injuries. The gist of submission of Ms. Hossain is that the evidence on record justifies conviction and sentence of both the appellants under Sections 306/498A of the Indian Penal Code.
8. The appellants are charged by the trial court for the offence under Section 302 of the Indian Penal Code and alternatively under Sections 306/498A of the Indian Penal Code. Section 221 of the Code of Criminal Procedure lays down that where it is doubtful what offence has been committed by the accused person, he can be charged with all or any of such offences or he may be charged in the alternative for one of the said offences. In the instant case, Learned Judge of the trial court has charged the appellants primarily for the offence under Section 302 of the Indian Penal Code and alternatively under Sections 306/498A of the Indian Penal Code as per provision of Section 221 of the Code of Criminal Procedure. On perusal of the contents of the charge read over and explained to the appellants by Learned Judge of the trial court, I am of the view that the appellants have not been prejudiced for framing of the alternative charge by Learned Judge of the trial court. So, I don't find any merit in the contention made on behalf of the appellants that the appellants have been prejudiced by not taking appropriate defence for framing of the alternative charge by Learned Judge of the trial court.
9. Now, I would like to scan the evidence adduced by the parties before the trial court before dealing with rival contentions made by Learned Counsel representing the respective parties and before discussing various authorities cited by Learned Counsel of both parties. Admittedly, on June 11, 2000 the deceased Gouri was married to the appellant Dhiraj Sarkhel as per Hindu rites and religion. The further admitted position is that the appellant Dhiraj contracted second marriage with Gouri after death of his first wife, when Gouri was about 38 years old. It is also not disputed that the appellant Madhubrita is the daughter of the appellant from his first wife since deceased. The appellant Madhubrita was aged about 20 years and she was studying in Class-XII at the time of the incident. The deceased Gouri was living along with her husband and step daughter in the ground floor of a rented accommodation where the landlady used to reside in the first floor along with members of her family. The deceased Gouri sustained burn injuries on January 12, 2001 at about 7.30 a.m. and died of said burn injuries on January 21, 2001 at about 12.05 p.m.
10. The first inquest on the dead body of Gouri was conducted by Sub- Inspector of Police (PW15) who prepared the inquest report (Exhibit-
6). The second inquest on the dead body of Gouri was conducted by the Executive Magistrate (PW13) who prepared the inquest report (Exhibit-5). The Sub-Inspector of Police (PW15) who conducted the inquest did not give any opinion about apparent cause of death. The Executive Magistrate (PW13) who conducted second inquest opined that Gouri died of burn injuries. Dr. Nemai Charan Pratihar (PW11) who conducted post mortem examination on the dead body of Gouri stated that the death was caused due to the effect of septic absorption from the infected ulcer resulting from burn injuries found all over the body. Thus, the cause of death of Gouri is burn injuries sustained by her in her residence on January 12, 2001 at about 7.30 a.m.
11. One Subhas Chandra Roy (PW1), elder brother of the deceased Gouri has stated in evidence about various incidents of torture which he heard from the deceased Gouri. It is elicited from the evidence of PW1 that the appellant Madhubrita used to bring boy friends to the residence during lunch time without prior intimation and ask the deceased Gouri to serve food and thereby the deceased Gouri had to starve on many days. It is further elicited from the evidence of PW1 that the appellant Madhubrita caught hold of neck of Gouri and made her to fall down and she also had thrown paper weight towards Gouri. It is also elicited from the evidence of PW1 that both the appellants used to beat Gouri and that the appellant Madhubrita became furious when Gouri detected her love affairs with one boy. The evidence of PW1 also indicates that both the appellants used to create presure on Gouri for bringing money from her parents' house.
12. Bani Roy (PW2) who happens to be the aunt of the deceased Gouri, has stated what she heard from Gouri about conduct of the appellants. It transpires from the evidence of PW2 that both the appellants used to beat Gouri with fists and blows and the appellant Madhubrita caught hold of hair of Gouri and had thrown paper weight towards her. It also transpires from the evidence of PW2 that the appellant Madhubrita used to bring boy friends without prior intimation and ask the deceased Gouri to serve food to them, in default of which the appellant Madhubrita used to create trouble.
13. Netai Das (PW5) who happens to be the neighbour of the appellants has stated that he heard about the quarrel in the house of the appellants, but this witness is declared hostile by the prosecution and as such I am not inclined to give any credence to the testimony of this witness. Shyamal Saha (PW6), neighbour of the appellants came to the house of the appellants immediately after the incident and heard the deceased saying that she was killed by both the appellants, whereas she could have been sent to her parents' house. Nothing transpires from cross-examination to disbelieve this witness. Dr. Sekhar Chowdhury (PW7), who happens to be the relative of the deceased, has stated in evidence how the deceased Gouri was beaten up by both the appellants for not bringing money from her parents' house. Since PW7 did not disclose the fact of beating up the deceased by the appellants before the Investigating Officer of the case, I am not inclined to give any credence to the testimony of PW7. Kuntal Sarkar (PW8), relative of the deceased Gouri, has stated how Gouri was subjected to cruelty for demand of dowry, but she heard the same from his parents-in-law and as such the evidence of PW8 must go down as hearsay evidence. Ujjal Kumar Roy (PW9), who happens to be the brother of the deceased Gouri has stated in evidence what she heard from the deceased Gouri about the conduct of the appellants. It is elicited from the evidence of PW9 that the deceased Gouri was beaten up by both the appellants. It also transpires from the evidence of PW9 that both the appellants used to create presure on the deceased Gouri for bringing money from her parents' house and the appellant Madhubrita used to sing and dance inside the room without paying heed to the request of the deceased Gouri. Since PW9 did not disclose the above facts before the Investigating Officer (PW9) during investigation of the case, I am not inclined to give any credence to oral testimony of PW9 with regard to what he heard from the deceased Gouri about the conduct of the appellants.
14. Labanya Prova Das (PW3) is the landlady of the appellants. PW3 went to the downstairs of the house after getting smell of burn injuries of Gouri and found the appellant Dhiraj pouring water on Gouri and the appellant Madhubrita was moving around. This witness has stated that she heard Gouri saying that she would not live and now peace would prevail. Rita Das (PW4) is the daughter-in- law of the landlady of the appellants. This witness came to the downstairs after getting smell of burn injuries and heard Gouri saying that she did not do anything but she was burnt, whereas she could have been shifted to her parents' house. This witness has also stated that she heard from Gouri that Gouri was beaten up by both the appellants. On perusal of evidence of Investigating Officer (PW19) I find that this witness (PW4) did not disclose to the Investigating officer that she heard the deceased Gouri saying that she did not do anything and she could have been shifted to her parents' house. On an analysis of the evidence of PW1, PW2, PW3, PW4 and PW6 I find that both the appellants used to create presure on the deceased Gouri for bringing money from her parents' house and both the appellants used to beat the deceased Gouri. It also transpires from the evidence of the above prosecution witnesses that the appellant Madhubrita had thrown paper weight towards Gouri and caught hold of her neck and she used to bring her boy friends during lunch time without prior intimation and ask the decased Gouri to serve food and thereby the deceased Gouri had to starve on many days. It is ellicited from the evidence of landlady (PW3), daughter-in-law of the landlady (PW4) and the neighbour of the appellants (PW6) that Gouri disclose after sustaining burn injuries that she could have been shifted to her parents' house, but the appellants had burnt her. The veracity of this informal dying declaration of Gouri will be considered at a later stage.
15. Now, I would like to consider whether the conduct of the appellants described by some of the prosecution witnesses (PW1, PW2, PW3, PW4 and PW5) will come within the ambit of "cruelty" defined in Section 498A of the Indian Penal Code. It is relevant to quote Section 498A of the Indian Penal Code, which is as follows:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purposes of this section, 'cruelty' means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet demand."
On perusal of meaning of "cruelty" given in Explanation (a) of Section 498A of the Indian Penal Code, I find that any wilful conduct of the husband or the relative of the husband may amount to cruelty, if the said wilful conduct is likely to move the victim woman to commit suicide or to cause grave injury or danger to life, limb or physical health or mental health of the said victim woman. Even if there is no harassment of the victim woman for demand of dowry, the wilful conduct of the husband or the relative of the husband may amount to "cruelty", if the said wilful conduct drives the woman to commit suicide or to cause any grave injury to physical or mental health of the woman. In the instant case, there is nothing on record to indicate that the deceased Gouri was suffering from any physical or mental disorder. The evidence on record points out that the deceased Gouri was beaten up by both the appellants and she was compelled to starve on many days for serving food to the boy friends of the appellant Madhubrita during lunch time. The conduct of the apepllant Madhubrita cannot be justified as natural wear and tear of daily life when she could throw paper weight towards her step mother and caught hold of her neck and hair on some occasions. This wilful conduct of the appellants has not only caused grave injury to mental health of deceased Gouri, but also ultimately drove her to commit suicide. The natural corollary is that the deceased Gouri was subjected to cruelty by both the appellants who happens to be the husband and step daughter of the deceased. Thus, I am unable to accept the contention made on behalf of the appellants that the conduct of the appellants reflected in various incidents narrated by the prosecution witness will not come within the ambit of "cruelty" defined in the Explanation to Section 498A of the Indian Penal Code.
16. In "Nallapati Sivaiah V. Sub-Divisional Officer" reported in (2008) 1 C.Cr.LR (SC) 269 the deceased sustained multiple injuries on head, hands and legs with hunting sickle on January 5, 1998 between 4.30 p.m. to 5.00 p.m. The deceased was found to be dead in the hospital by the casualty medical officer at 9.30 p.m. on the same day. The first dying declaration was recorded by the police officer at 6.00 p.m. without obtaining any certificate of the doctor about the mental alertness of the deceased. The second dying declaration was recorded by the Magistrate after 6.25 p.m without obtaining any certificate from the doctor about mental alertness of the deceased. The Supreme Court did not rely on these dying declarations to record conviction of the appellants, as suspicion was raised about the correctness of the statement when the deceased admitted in the hospital with 63 multiple injuries died within a few hours of admission in the hospital. In the present case the deceased was alive for about 9 days after sustaining burn injuries and the deceased gave first statement to the landlady and neighbours followed by statement recorded by Sub-Inspector of Police within two hours of admission in NRS Hospital and the second statement was recorded after four days in another hospital. So, the facts of this case are clearly distinguishable from "Nallapati Sivaiah V. Sub-Divisional Officer"
(supra) and as such the said report has no relevance in the facts of the present case.
17. In "Mehiboobsab Abbasabi Nadaf V. State of Karnataka" reported in (2007) SCR 713 the deceased sustained burn injuries and died in the hospital after four days of sustaining injuries. The deceased gave four dying declarations. Initially two statements of the deceased recorded by the doctors indicate that she sustained injuries accidentally by bursting of stove. Therefore, she gave statement before the police that she was set on fire after pouring kerosene oil on the body by the husband and parents-in-law. Lastly, she gave statement before the Magistrate that she was set on fire after pouring kerosene oil by the parents-in-law. The Supreme Court did not accept the dying declarations as voluntary and truthful due to contradictory and inconsistent stand taken by the deceased. In the instant case, the deceased Gouri did not disclose in any of the dying declarations that she sustained burn injuries due to accident. So, the facts of the present case are distinguishable from the facts of the case reported in "Mehiboobsab Abbasabi Nadaf V. State of Karnataka"
(supra) and as such the same has no relevance in the present case.
18. In "State of Punjab V. Parveen Kumar" reported in (2005) 1 CCrLR (SC) 501 the deceased gave three dying declarations after sustaining burn injuries. The first dying declaration given to the uncle at the time of shifting of the deceased from one hospital to another hospital was discarded by the Court on the ground that the uncle of the deceased disclosed the dying declaration before the trial court for the first time without disclosing the same to the police during investigation. The first formal dying declaration recorded by the Magistrate has implicated only the husband, but the second formal dying declaration recorded by the police has implicated the mother- in-law and the husband. In the absence of any reliable evidence to ascertain truthfulness and voluntary nature of two contradictory dying declarations, the Supreme Court did not accept any of these dying declarations, particularly when mother-in-law was already acquitted of the charge. In the present case the second dying declaration was recorded by the Investigating Officer in presence of the relative and elder brother of the deceased when the deceased perhaps lost consciousness after four days of sustaining 80% burn injuries and as such the facts of the present case are clearly distinguishable from the facts of "State of Punjab V. Parveen Kumar"
(supra) and the said report cannot have any relevance in the present case.
19. In "Koli Chunilal Savji V. State of Gujarat" reported in AIR 1999 SC 3695 the Magistrate who recorded the dying declaration ascertained about the fit state of mind of the deceased from the doctor, though the certificate of the doctor about the mental alertness of the deceased was not obtained by the Magistrate at the time of recording of the dying declaration. The Supreme Court accepted this dying declaration as voluntary and truthful on the ground that this dying declaration is consistent with the dying declaration recorded by the police for registration of FIR. The view of three Judges' Bench of the Supreme Court in "Koli Chunilal Savji V. State of Gujarat" (supra) that the dying declaration recorded without obtaining certificate from the doctor about the state of mind of the deceased cannot be discarded, if there is evidence on record to indicate that the deceased was conscious and mentally alert to give the statement, was upheld as good law by five Judges' Bench of the Supreme Court in "Laxman V. State of Maharashtra" reported in AIR 2002 SC 2973. It is relevant to quote some portion of paragraph 3 of the judgment in "Laxman V. State of Maharashtra" (supra), which is as follows:
"3. ..... A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
20. The view of the five Judges' Bench of the Supreme Court in "Laxman V. State of Maharashtra" (supra) is that the certification by the doctor about the state of mind of the deceased for recording dying declaration is a rule of caution and as such the court can rely on the dying declaration without any certificate from the doctor about the mental fitness of the deceased, provided the court can ascertain from the evidence on record that the dying declaration is voluntary and truthful and the deceased was in a fit mental state to give the said statement. In the present case, the deceased Gouri was found to be conscious when she gave informal dying declaration to the landlady (PW3), daughter-in-law of the landlady (PW4) and the neighbours (PW6) on January 12, 2001 at about 7.30 a.m. in her residence. I have already observed that the deceased Gouri was admitted to NRS Hospital on January 12, 2001 at about 9.30 a.m. The first formal dying declaration was recorded by the Sub-Inspector of Police (PW18) on January 12, 2001 at about 11.30 a.m. in NRS Hospital in presence of Dr. Abhijit Kanungo who made an endorsement and has put his signature. However, the certificate about mental fitness of the deceased Gouri is not given by Dr. Abhijit Kanungo. Nor has the prosecution examined Dr. Abhijit Kanungo as prosecution witness in this case. The cross-examination of the Investigating Officer (PW19) reveals that on January 12, 2001 at about 6.25 p.m. the deceased Gouri was found to be sleeping unconsciously. There is nothing on record to indicate that the deceased Gouri was not in a position to give the statement at about 11.30 on the date of the incident. No suggestion is given to the Sub-Inspector of Police (PW18) who recorded the first formal dying declaration of Gouri that Gouri was not conscious at the time of recording of her first formal dying declaration at 11.30 a.m. on January 12, 2001 in NRS Hospital. The fact that Gouri was sleeping unconsciously at about 6.25 p.m. on January 12, 2001 does not go to establish that she was not mentally fit to give the statement at 11.30 a.m. on the same day, particularly when she was talking coherently and she was conscious after sustaining burn injuries. Since the first formal dying declaration was recorded within two hours of admission of Gouri in the NRS Hospital and since the said dying declaration was recorded in the presence of her doctor who has given endorsement and affixed signature on the dying declaration and since the deceased Gouri was alive for 9 days after sustaining burn injuries, I am inclined to hold that the said dying declaration (Exhibit-7) is voluntary and truthful. I am inclined to rely on the said dying declaration on the basis of proposition of law laid down by the five Judges' Bench of the Supreme Court in "Laxman V. State of Maharashtra" (supra).
21. The second dying declaration of the deceased Gouri was recorded by the Investigating Officer (PW19) on January 16, 2001 in Critical and Trauma Hospital where Gouri died on January 21, 2001. This dying declaration (Exhibit-13) is also obtained in presence of one doctor who was medical officer on duty on January 16, 2001. However, this dying declaration is recorded after four days of sustaining 80% burn injuries by Gouri. This dying declaration is also recorded in presence of the relative and elder brother of the deceased Gouri. While in the first formal dying declaration the deceased Gouri stated that she committed suicide due to unbearable torture inflicted on her by the appellants, in the second formal dying declaration the deceased Gouri has disclosed that the appellant Dhiraj poured kerosene oil on her body and set her on fire. Since the second formal dying declaration was recorded by the Investigating Officer (PW19) after knowing fully well that the deceased Gouri has already given one dying declaration on the date of admission in NRS Hospital and since the second formal dying declaration was recorded in presence of elder brother and relative of the deceased, I have grave doubt about the voluntary nature of the second formal dying declaration which was recorded after four days of sustaining 80% burn injuries by the deceased. The logical inference is that the inconsistent stand taken by the deceased in the second formal dying declaration that the appellant Dhiraj poured kerosene oil on her body and set her on fire cannot be accepted as the voluntary statement of the deceased Gouri. Accordingly, I would like to discard and disbelieve the second formal dying declaration recorded by the Investigating Officer (PW19) on January 16, 2001 in Critical & Trauma Hospital.
22. On perusal of informal dying declaration of the deceased Gouri reflected in the evidence of landlady (PW3), daughter-in-law of the landlady (PW4) and neighbours (PW6) and the first formal dying declaration recorded by PW18 (Exhibit-7), I find that the deceased has consistently stated that she committed suicide as she could not bear the torture inflicted on her continuously by the appellants. The only logical explanation for commission of suicide of Gouri within about seven months of her marriage is unbearable torture inflicted on her by the appellants. In view of my above findings, I am unable to accept the contention made on behalf of the appellants that both the dying declarations should be discarded by the court for not having obtained certificate of the doctor about the mental alertness of the deceased Gouri at the time of recording of the statement.
23. In the instant case, the prosecution is able to establish by adducing evidence that the deceased Gouri was subjected to "cruelty" by both the appellants and the deceased Gouri committed suicide within about seven months of her marriage with the appellant Dhiraj. Now, the question to be considered by the court is whether commission of suicide of the deceased Gouri was abetted by both the appellants to make them liable for the offence under Section 306 of the Indian Penal Code. Section 113A was incorporated in the Indian Evidence Act, 1872 by way of amendment in the 1983 in order to draw presumption as to the abetment of suicide by a married woman. It is relevant to quote the provision of Section 113A of the Indian Evidence Act, which is as follows:
"113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)."
24. On perusal of the above provision of law it appears that the court may presume that the appellants have abetted commission of suicide of the deceased Gouri when the deceased Gouri was subjected to cruelty by the appellants and she committed suicide within about seven months of her marriage. It is already established from the evidence on record that the deceased Gouri was subjected to cruelty by the appellants and she committed suicide within about seven months of her marriage and the appellants are husband and step daughter of the deceased Gouri. The circumstances of the present case lead me to draw presumption under Section 113A of the Indian Evidence Act to hold the appellants guilty of the charge under Section 306 of the Indian Penal Code. In view of my above findings, I cannot persuade myself to interfere in the judgment and order of conviction and sentence passed by Learned Judge of the trial court.
25. As a result, the appeal is dismissed. The judgement and order passed by Learned Additional Sessions Judge, 5th Court, Barasat, North 24-Parganas in Sessions Trial No.1(9) of 2001 is hereby affirmed. The appellants are directed to undergo remaining period of sentence by surrendering before the trial court within a period of four weeks from the date of this order, in default the trial court will issue warrant of arrest against the appellants to arrest them in order to undergo the remaining period of sentence. The bail granted in favour of the appellants during pendency of the appeal stands cancelled. Let a copy of this judgment and order be sent down to the Learned Judge of the trial court along with Lower Court Record for favour of information and necessary action.
The urgent photostat certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)