Calcutta High Court (Appellete Side)
State Of West Bengal vs Sanjiv @ Sanjit Pan & Anr on 27 April, 2012
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
1
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
And
The Hon'ble Justice Asim Kumar Ray
Death Reference No. 4 of 2011
State of West Bengal
Versus
Sanjiv @ Sanjit Pan & Anr.
In connection with
C.R.A. No. 498 of 2011
Sanjiv @ Sanjit Pan & Anr.
Versus
State of West Bengal
With
C.R.A. No. 499 of 2011
Kalipada Pan & Ors.
Versus
State of West Bengal
For the Appellants : Mr. Sekhar Bose
Mr. Shouvik Mitter
For the State : Mr. Debasish Roy, Ld. P.P.
Mr. Samser Ali
Heard on: April 9th and April 12th, 2012.
Judgment on: 27-04-2012.
2
ASHIM KUMAR ROY, J.:
Death Reference No. 4 of 2011, the Criminal Appeal No. 498 of 2011 and Criminal Appeal No. 499 of 2011, all three, are arising out of a judgement and order passed on August 26, 2011 in Sessions Trial No. 1 (9) of 2003 by the learned Additional Sessions Judge, 3rd Court, Bankura.
The learned Trial Court by the aforesaid judgement and order convicted the appellants, in C.R.A. No. 498 of 2011, Sanjiv @ Sanjit Pan and Sujit Pan @ Putka under Sections 498A/302/34 of the Indian Penal Code and sentenced them to death for their conviction under Sections 302/34 of the Indian Penal Code but no separate sentence was imposed for their conviction under Section 498A of the Indian Penal Code.
Whereas the appellants, in C.R.A. No. 499 of 2011, Kalipada Pan, Bhakti Bala Pan and Rupali Pan were convicted under Sections 498A/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 2 years and to pay fine of Rs. 2,000/- in default to suffer simple imprisonment for 6 months. However, all the three appellants were acquitted from the charge under Sections 302/34 IPC and against the said order of acquittal no appeal has been preferred.
2. In course of hearing of the aforesaid appeals on behalf of the appellant no. 2 Sujit Pan @ Putka a plea of juvenility was raised and it was claimed that on the date of the alleged incident he was below the age of 18 years. When this Court by an order passed on March 26, 2012 remanded the matter back to the Trial Court with a direction to hold an enquiry in terms of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 3 12 framed thereunder and to determine the age of the said appellant on the date of the alleged incident. Pursuant to the aforesaid order the Trial Court held an enquiry for determining the age of the said appellant and in absence of any certificate of birth he was referred for ossification test. In the ossification test held on March 29, 2012 he was found aged about 22 years and 5 months and accordingly the Trial Court came to the conclusion that on the date of the alleged incident that is on March 13, 2001 he was aged about 11 years and 6 months and consequently a juvenile in conflict with law. Such finding of the Trial Court has not been disputed from the side of the State and the same was conceded. We have gone through the evidence and other materials on record on the basis of which the Trial Court came to the above findings and do not find any infirmity therein and accordingly the same is accepted.
3. Now, having regard to the fact on the date of the commission of the offence the accused Sujit Pan @ Putka was a juvenile in conflict with law according to the mandate of Juvenile Justice (Care and Protection of Children) Act, 2000 he cannot be proceeded with in terms of the provisions of the Code of Criminal Procedure, thus his trial on a charge of commission of offences punishable under Indian Penal Code and his consequential conviction and sentence is illegal and without jurisdiction. Thus the order of conviction and sentence passed against the appellant Sujit Pan @ Putka is set aside. He shall forthwith be released from the custody. It appears that the appellant Sujit Pan @ Putka during investigation was in custody for 3 months and after his conviction and till date for about 8 months. We direct after his release from custody within a 4 week he shall be forwarded to the concerned Juvenile Justices Board, constituted for the District of Bankura and the Board shall hold necessary enquiry in terms of the provisions of Section 14 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and pass necessary order in accordance with the said Act.
4. Now coming to the case of other appellants, we find the prosecution case against them runs as follows:
China @ Dipali the youngest sister of the defacto-complainant Asoke Kumar Hazra was married with the convict Sanjiv @ Sanjit Pan, the second son of the convict Kalipada Pan. The other convict, viz. Sujit Pan @ Putka was the younger brother of Sanjiv @ Sanjit Pan and other two convicts, viz. Bhakti Bala Pan and Rupali Pan are his mother and sister-in-law. At the time of marriage a cash money of rupees seventy eight thousand, jeweleries and various household articles were given as dowry. A sum of Rs. 13,500/- was remain unpaid. Nineteen days before the alleged incident Dipali gave birth to a female child and on March 10, 2001 at about 10.30 p.m. one relation of the defacto-complainant informed him that his sister and her newly born baby was taken to Taldangra Hospital. However, defacto-complainant having reached there found that they had already been removed to Gobindanagar Hospital. On the next day he had been to the Gobindanagar Hospital and came to learn from his sister that on the previous day her husband Sanjiv and his younger brother Sujit mercilessly beat her being aided and abetted by their parents and then by pouring kerosene on her and her baby, they were set on fire.5
It is also the case of the prosecution that during the period she was alive she gave three successive dying declarations at the hospital. The first one was given to her attending doctor recorded in the bed head ticket, next in the ward to her doctor and recorded in presence of the staff nurse and the Investigating Officer and lastly to the Investigating Officer recorded under Section 161 CrPC.
5. After completion of investigation police submitted charge-sheet and in the trial the accuseds were charged under Sections 498A and under Section 302/34 of the Indian Penal Code and alternatively under Sections 304B/34 of the Indian Penal Code.
6. During the trial the prosecution examined 15 witnesses to prove the charge against the aforesaid convicts and defence examined none.
Out of the aforesaid 15 witnesses PW/1 Dr. Biswajit Halder was the doctor attached to the Taldangra Rural Hospital where she was removed after she sustained burn injuries. According to the said witness, after giving primary treatments to Dipali Pan @ China and her daughter, he referred both of them to Bankura B.S. Medical College and Hospital and had deposed nothing further. The PW/2 Dr. Santanu Sinha who was attached to the Bankura B.S. Medical College and Hospital, examined both of them. This witness claimed that in presence of the PW/15, the Investigating Officer of the case and the staff nurse (PW/8) the victim China @ Dipali Pan gave a dying declaration and same was recorded by him (Exhibit - 1). The PW/3 a co-villager of the appellant and the PW/5 Prasanta Hazra, brother of the victim were declared hostile during the trial. 6 The PW/4 Gita Hazra was the mother of the victim and had not spoken anything in support of the charge against the appellants. Both the PW/6 and PW/13 had spoken nothing as against the appellants. The PW/7 Asoke Hazra is the brother of the victim China @ Dipali Pan. He is also the defacto-complainant of the case. In his chief he has not stated anything against the appellants and during his cross-examination stated that the complaint was written at the instance of Daroga Babu and he only told him that his sister received burn injuries. The PW/8 Atasi Das is the staff nurse, in whose presence dying declaration of the victim (Exhibit - 1) was recorded by the PW/2. The PW/9 Dr. Subrata Kundu while conducted the postmortem over the dead body of the victim housewife, the PW/11 Dr. Jnanendra Nath Dey held postmortem of the child. The PW/10 Goutam Sikdar is a police officer who held the inquest. The PW/12 Samiran Nayek is a police constable and had taken the dead bodies for postmortem. The PW/14 is the Executive Magistrate who held the inquest over the dead body of the victim housewife. The PW/15 is the Investigating Officer of the case, who claimed to have recorded the dying declaration of the victim housewife in the form of statement recorded under Section 161 CrPC (Exhibit - 11). He also produced the bed head ticket of both the victims where her statement as to how she caught fire was recorded and the same was marked as Exhibit -10, under objection from the defence. He also proved his signature (Exhibit - 3/1) in the dying declaration (Exhibit - 1) recorded by the PW/2.
7. We find that the prosecution case against the appellants entirely rests on the aforesaid three successive dying declarations. 7
Victim's dying declarations (Exhibit - 10 series) recorded in the bed head tickets are to the effect while she was sitting with her baby in her lap her husband threw kerosene oil on them and set her on fire in conspiracy with her father-in-law and mother-in-law and her mother-in-law and the husband used to ask her to commit suicide.
According to her dying declaration (Exhibit - 1) recorded by PW/2 Dr. Santanu Sinha at the time of the occurrence she was breast feeding her daughter. When her husband and brother-in-law physically assaulted her and then by pouring kerosene oil they were set on fire by the said accused persons and in burning condition both of them were thrown out of the house.
In her last dying declaration recorded by the Investigating Officer of the case in the form of statement recorded under Section 161 CrPC, the victim stated on the date of the incident her husband, brother-in-law and mother-in-law all assaulted her physically and the mother-in-law did not gave her lunch. In the evening while she was breast-feeding her daughter, her husband and brother-in- law poured kerosene oil on them and set them on fire and the neighbours being attracted by her cry rushed to the place of occurrence and extinguished the fire. Her husband, brother-in-law, father-in-law, mother-in-law and sister-in-law used to torture her regularly.
8. The learned Counsel appearing on behalf of the appellants vehemently contended before us that none of the witnesses in their depositions complained that the victim China was subjected to any cruelty by the appellants, therefore their conviction under Section 498A of the Indian Penal Code cannot be 8 sustained. He further submitted the injury reports (Exhibit - 10) of the housewife China and her daughter containing her dying declaration was illegally admitted into evidence completely ignoring the requirements of law for admission of any written document. The said injury reports were exhibited on production by the Investigation Officer of the case against the objection of the defence. Neither the author who recorded such statement in the injury report was examined nor in his absence the contents thereof were proved in accordance with law. He next contended that the fact of recording her dying declaration in Exhibit -11 by the Investigating Officer of the case in the form of her statement under Section 161 of the Code of Criminal Procedure was never put to the appellants in their examination under Section 313 CrPC. Therefore the said dying declaration have to be kept out of the zone of consideration in reaching conclusion to their guilt. According to him no conviction can legally be sustained on the basis of the same.
9. In reply to the submission of the learned advocate of the appellants the learned Public Prosecutor has conceded that the Exhibit -10 was not admitted into evidence and proved following the procedure established by the law. He has also not disputed as the dying declaration of the victim housewife recorded by the Investigating Officer (Exhibit -11) was not put to the appellants as an incriminating evidence against them, thus the same cannot also be used in recording their conviction. He, however, vehemently urged for these lapses on the part of the Trial Court the accused cannot go scot-free and on the other hand for ends of justice the case be remanded back to the Trial Court for re-trial for the limited purpose to the extent that the Exhibit - 10 series be proved in accordance 9 with law and the Exhibit -11 be put to the appellants by examining them afresh under Section 313 CrPC on that score alone.
The learned Counsel of the appellants has not however raised any objection or opposed the submissions of the learned Public Prosecutor.
10. We have given our anxious and thoughtful consideration to the respective submissions of the learned Counsel of the parties. We have also very carefully gone through the materials on record.
11. The parties are consensus over the issue of committing the case for re-trial on some limited question. Now it is for us to decide whether it would be otherwise appropriate to order re-trial without any prejudice to the parties. It goes without saying that the provisions of Section 386 CrPC is clear enough to empower the appellate Court in an appeal from a conviction to commit a criminal case for re-trial. However, order of re-trial cannot be made as a matter of course and merely because both the Counsels appearing on behalf of the accused and the State had agreed on that score. As the law stands such power has to be exercised sparingly and in very exceptional cases and that too for ends of justice. While making such order the Court must always be on guard and must be sure that such order would not enable the prosecution to lead evidence which it could but has not cared to lead. In this appeal essentially the question of re-trial arises due to the fact that the bed head ticket was admitted into evidence without the author thereof being examined in the trial and the factum of recording of dying declaration in the form of statement of the victim under Section 161 CrPC was not put to the accuseds in their examination under Section 313 CrPC. The bed 10 head ticket containing the history as to how the victim suffered such injuries and when stated by the victim himself or herself is a very vital document for the Court to reach to its conclusion in the trial, although such document was produced in the trial and exhibited but same was not brought on record in accordance with law. Now if in the re-trial such document is brought on record by examining the author thereof neither that would prejudice any of the parties nor it can be said that would enable the prosecution to lead either a new evidence or to lead evidence which it could but did not care to lead. Furthermore by directing the Trial Court to examine the accused under Section 313 CrPC on the point of the dying declaration recorded by the Investigating Officer of the case in the form of statement recorded under Section 161 CrPC which has already been legally admitted in evidence, none of the parties will be prejudiced but would only aid the trial Court to reach to a just decision in the matter in accordance with law. There is no controversy, no re-trial could have been ordered without setting aside the judgement passed by the Trial Court. In this connection the reference may be made to the case of Avtar Singh & Anr. v. Bhajan Singh & Ors., reported in AIR 1998 SC 2910.
In the result we set aside the impugned order of conviction and sentence passed against the appellant Sanjiv @ Sanjit Pan as well as the order of conviction and sentence passed against the appellants Kalipada Pan, Bhakti Bala Pan and Rupali Pan.
It is directed that the re-trial should be limited to the point of bringing on record the bed head ticket of the deceased China @ Dipali Pan and 11 her daughter in accordance with law by examining the author thereof and examining the accuseds under Section 313 CrPC on the point of recording the dying declaration (Exhibit - 11) by the Investigating Officer of the case. Needless to mention after getting the bed head ticket admitted into evidence the Trial Court shall also examine the accused persons on that score.
It would be appropriate for the Trial Court to complete the entire process and taking into consideration the evidence already on record and the materials which will now be brought before it to deliver its judgement within six weeks from the date of communication of the order.
The learned Public Prosecutor has assured this Court that all steps shall be taken by the State to ensure the appearance of the doctor who recorded the bed head ticket before the Trial Court. It goes without saying if the concerned doctor does not response to the summons then in that case the Trial Court shall have the liberty to take all coercive measures against him to secure his presence in Court accordance with law.
The office is directed to send down the records together with the copy of this order at once.
Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) I agree (Asim Kumar Ray, J.)