Calcutta High Court (Appellete Side)
Swapna Deb & Ors vs State Of West Bengal on 12 February, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item No. 198
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. 686 of 2015
Swapna Deb & Ors.
Vs.
State of West Bengal
For the appellants: Mr. Jayanta Narayan Chatterjee,
Mr. Kaushik Chowdhury,
Mr. Apalak Basu,
Ms. Moumita Pandit,
Mr. Nazir Ahmed,
Ms. Jayashree Patra
Ms. Rimpa Rajpal
For the State : Mr. Madhu Sudan Sur, APP
Mr. Manaranjan Mahata
Heard on : 12.02.2020
Judgment on : 12.02.2020
Joymalya Bagchi, J. :
The appeal is directed against the judgment and order dated 30.09.2015 and 01.10.2015 passed by the learned Additional Sessions Judge, 3rd Court, Dakshin Dinajpur at Balurghat in ST No. 24 of 2015 arising out of SC No 277/2014 convicting the three appellants for commission of offence punishable under Sections 448, 302, 34 of the Indian Penal Code and sentencing them to suffer imprisonment for one year each under Section 448 of Indian Penal Code and to suffer imprisonment for life each and to pay a fine of Rs.20,000/- each in 2 default, to suffer rigorous imprisonment for six months more under Sections 302/34 of Indian Penal Code. Both the sentences to run concurrently.
Prosecution case levelled against the appellants is to the effect that the deceased Nomita Mohanta, a married lady, had a clandestine affair with the son of appellant no.1, Swapna Deb. In retaliation, on 30.05.2013 around 9.00 A.M. Swapna along with her daughter, Buri Mohanta and Purnima @ Puni Mohanta, a neighbour, assaulted the victim and set her on fire. She was shifted to the Balurghat Sadar Hospital and first information was lodged by her mother Shyamoli Mohanta, P.W.1 against the accused persons.
P.W.8, Aurobindo Ghosh, is an Executive Magistrate recorded her dying declaration (Ext.7) at the hospital in the presence of doctor P.W.7 and staff nurse, P.W.9. Subsequently, the deceased expired.
In conclusion of investigation, charge-sheet was submitted against the accused persons. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 3rd Court, Dakshin Dinajpur for trial and disposal. Charges were framed against the appellants under sections 448/326/307/302/34 IPC. They pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 14 witnesses and exhibited a number of documents including the dying declaration (Ext.6).
The defence of the appellants was one of innocence and false implication. In conclusion of trial, learned trial judge by judgement and order dated 30.09.2015 and 01.10.2015 convicted and sentenced the appellants, as aforesaid. Hence, the present appeal.
Mr. Chatterjee, learned Counsel appearing for the appellants vehemently argued that the dying declaration (Ext.6) is not a reliable one. Victim had suffered extensive injuries on her face and neck. It was impossible for her to make a 3 statement in such condition. She had been administered sedatives and was in a drowsy state. Hence, the possibility of tutoring cannot be ruled out. He further argued that the appellants have been falsely implicated in the instant case after the victim committed suicide. Prior to that, she had quarreled with her husband, who was missing after the incident. Relations of the deceased have not supported the prosecution case. Apart from the dying declaration, there is no evidence on record implicating the appellants. Hence, he prayed for acquittal of the appellants.
Mr. Sur, learned counsel with Mr. Mahata appearing on behalf of the State submitted that the dying declaration was recorded by an Executive Magistrate, P.W.8 in the presence of doctor, P.W.7 who certified that the patient was conscious and fit to make statement. Capacity of the deceased to make the declaration is beyond doubt. Contents of the dying declaration is corroborated by the first information report lodged by P.W.1. Hence, the appeal is liable to be dismissed.
Namita, a married lady had an illicit affair with one Gourango, son of appellant no. 1 Swapna De. Family of Gourango was unhappy and was hostile to Namita. As a result, on the fateful day Swapna Deb, mother of Gourango being accompanied by her sister Buri and neighbour Purni came to the residence of Namita, assaulted her and set her on fire. This is the gist of the dying declaration recorded by PW 8, executive magistrate at the Balurghat Sadar hospital where deceased had been admitted with burn injuries and was fighting for her life.
Learned lawyer for the appellants argued that the victim had suffered extensive burn injuries in her mouth and neck and had been administered sedatives. Hence, she was not in a position to talk as would appear from the deposition of her mother, P.W 1.
It is settled law that a credible and truthful dying declaration may be the sole basis of conviction. However, as the maker of such statement is no longer in 4 the world of living and cannot be subjected to cross examination, it is imperative that the court satisfies itself with regard to the fit state of the maker to make the declaration and the truthfulness of its content before the same can be utilised to bring home the guilt of the accused.
Law in this regard has been succinctly enunciated by the Apex Court in Paniben (Smt) Vs. State of Gujarat, (1992) 2 SCC 474, wherein the Court held as follows:-
"18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munna Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, Ramawati Devi v. State of Bihar).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (R. Ramachandra Reddy v. Public Prosecutor).5
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)"
The aforesaid ratio has been reiterated by the Apex Court in Jagbir Singh Vs. State (NCT of Delhi), (2019) 8 SCC 779.
I have applied the aforesaid ratio to test whether the dying declaration in the present case satisfies the requisite tests, namely, fit state of the victim to make the declaration and the truthfulness of such declaration.
P.W 6 is the police officer attached to Balurghat P.S. who received requisition from Balurghat hospital for making arrangement for recording dying declaration of Namita who was admitted in the hospital. He proved the requisition (Ext 4). On the basis of the requisition, he made prayer to SDO to arrange for recording the statement of the patient. He proved the letter (Ext 5). Accordingly P.W 8, Arabindo Ghosh, executive magistrate was deputed to record the statement 6 of Namita. P.W. 6 accompanied the executive magistrate and identified the victim. Executive magistrate recorded the dying declaration in presence of attending doctor (P.W. 8) and staff nurse (P.W. 9). He proved his signature in declaration (Ext 6/1).
P.W 8, executive magistrate who recorded the dying declaration deposed pursuant to letter issued by the SDO to record dying declaration of a patient admitted in the hospital (Ext 7), he proceeded to Balurghat hospital for recording statement. He met staff nurse and attending doctor Swapan Biswas. Attending doctor examined the patient and certified that she was mentally fit and fully oriented to make the statement. After the certification he disclosed his identity and asked the patient how the incident occurred. In reply, she stated mother and sister of Gourango with whom she had a love affair and one Purni assaulted her in the morning and set her on fire. She further disclosed that family members of Gourango did not like the relationship and as a result they set her on fire. He read over and explained the contents of the dying declaration to the victim who put her LTI thereon. He proved the document (Ext. 6) and his signature thereto. Evidence of P.W 8 is corroborated by P.W 7 Dr. Biswas who examined the patient and certified that she was co-operative and fully oriented to make the statement. He proved the certification as well as his signature on the dying declaration. Staff nurse P.W 9 has also corroborated the recording of the dying declaration.
Referring to the evidence of P.W 7 it has been argued that the victim was drowsy and had been administered sedative. Furthermore, she had suffered injuries on her neck and face. Hence, she was not in a fit state to make the statement.
I am unable to accept such contention. Dr. Biswas has noted in the dying declaration all the relevant signs and symptoms of the patient. He has 7 categorically stated though the patient was mentally drowsy, she was co-operative and fully oriented. Certificate of a doctor with regard to the mental state and fit condition of the patient to make a statement is the best evidence with regard to her capacity to make the declaration. Dr. Biswas (P.W. 7) has withstood the cross- examination on such score and I have no reason to disregard his evidence in this regard. In the backdrop of the aforesaid expert opinion, evidence of P.W. 1 who was not even present at the time when the dying declaration was recorded loses significance. Contents of the dying decollation give a clear depiction of the circumstances in which the deceased was set on fire. She was in love with Gourango. Appellants did not approve of their illicit relationship and accordingly set her on fire. Motive of commission of the crime and the manner in which the incident occurred has been graphically described therein. Deceased was a married lady and her relationship with Gourango was naturally disapproved by his relations i.e. the appellants herein. Learned counsel for the appellants argued that the victim committed suicide due to a quarrel between herself and her husband. I am unable accept such contention. Although relations of the deceased namely P.W 1 and 4 have turned hostile and not supported the prosecution case, P.W. 1 admitted to have lodged the FIR, Exhibit 1/1. Had the victim committed suicide due to a quarrel with her husband such fact would have transpired from the FIR. On the other hand, the contents of the first information report, though not substantive evidence, corroborate the contents of the dying declaration with regard to the genesis of the incident.
In that backdrop I am of the view that the contents of the dying declaration in the present case is truthful and does not suffer from any infirmity. It can be the basis for conviction of the appellants in the present case. 8
In the light of the aforesaid discussion conviction and sentence imposed on the appellants are upheld.
The appeal is dismissed.
The period of detention, if any, undergone by the appellants during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
In view of the fact that the appellants may have acted out of moral indignation against the deceased since she had an immoral relation with Gouranga, son of the appellant no. 1, and as they do not have criminal antecedents, we observe if the appellants take out an application for remission of their sentence in terms of section 432 read with section 433A Cr.P.C. upon completion of fourteen years of actual imprisonment, the appropriate authority may consider the same in the light of the aforesaid observations in accordance with law subject to other relevant considerations including their conduct in the correctional home.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.) rkd/tkm/ss & PA