Calcutta High Court (Appellete Side)
Badal Biswas And Another vs The State Of West Bengal on 25 January, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY
C.R.A. No.01 of 2016
BADAL BISWAS AND ANOTHER
-VERSUS-
THE STATE OF WEST BENGAL
For the Appellants: Mr Shibaji Kumar Das, Adv.,
Mr Ahshan Ahmed, Adv.,
Mr Debnandan Bhattacharyya, Adv.
For the State: Mr Subir Banerjee, Adv.,
Ms Kakali Chatterjee, Adv.,
Mr Jayanta Banerjee, Adv.
Hearing concluded on: January 12, 2017.
Date: January 25, 2017.
SANJIB BANERJEE, J. : -
The appellants question their conviction under Sections 498A/302 of the
Penal Code, 1860 on the ground that there is no direct evidence against them as
to the commission of the offence and the dying declarations on the basis of which
they have been convicted are apparently contradictory.
2. Victim Shila Biswas was married to Basudev in the autumn of 2008. On
December 4, 2009, she was found ablaze and shouting for help on the verandah
just outside her room at the matrimonial house. Two of the neighbours doused
the flames. She was taken to nearby Jiaganj Hospital from where she was
referred to the bigger Lalbagh Sub-divisional Hospital. The victim succumbed to
her burn injuries on December 17, 2009.
3. The formal written complaint was lodged by the victim's father on
December 13, 2009, though it recorded that the incident had been earlier
verbally reported to the relevant police station. The complaint spoke of the
husband and the parents-in-law of the victim pestering her to get money from
her father for the husband's business; the victim being subjected to physical and
mental torture on her inability to arrange for further funds from her father; and,
the father requesting the husband and the parents-in-law to desist from
tormenting the victim. Regarding the specific incident, the complainant narrated
that "I came to know, over telephone, on 04.12.2009, at about 9.00 a.m., that (1)
my son-in-law, Basudev Biswas, (2) the father-in-law of my daughter, Badal
Biswas, (3) mother-in-law, of my daughter, Parul Biswas W/o - Badal Biswas, all
together set fire upon my daughter, with a view to kill her."
4. In the post-mortem report deep burn injuries were found, including on the
face, neck, both upper limbs, many parts of the lower limbs, parts of the back
and the abdomen and even on the scalp. The cause of death was recorded to be
the septic shock from the infections caused by the burn injuries, where the
burning was ante-mortem in nature. The husband and the parents-in-law were
all charged under Sections 498A/304B/302/34 of the Penal Code.
5. The father of the victim was called to the witness-box first on behalf of the
prosecution. He claimed to be a hawker by profession and he proved his
complaint which he said was read over and explained to him upon which he
affixed his thumb impression on the document. It was curious that he did not
claim in course of his evidence at the trial that his daughter had been subjected
to torture at her matrimonial home. In his cross-examination, he claimed that
his daughter "never raised any grievance against any of the family members of
her matrimonial home." However, such evidence, obviously in response to a
suggestion put by the defence, has to be seen in the light of the allegations
contained in the complaint which he proved at the trial. But there is no escape
from the fact that the father of the victim not only climbed down from the charges
that he levelled earlier in his complaint, but he also made a statement to the
effect that his daughter did not complain to him against her in-laws.
6. The scribe of the complaint was examined next and he proved the creation
of the document. Nothing much comes out of his evidence except that he claimed
to have known both the victim and the complainant. In response to a suggestion
in the cross-examination, he accepted that he was a supporter of the CPI(M)
political party.
7. Three neighbours of the victim's in-laws, including the two persons who
doused the flames on her and, possibly, took her to the hospital, were the best
persons to describe the circumstances in which they found her and whatever the
victim may have said while they tried to rescue her or she was being taken to the
hospital. But it appears that such two neighbours who rescued the victim and,
possibly, took her to the hospital turned hostile and the prosecution could not
extract anything from them. Bidyut Biswas claimed that at about 10 - 10.30 am
on the particular day "I heard hue and cry and rushed at PO and found that the
wife of Basudeb was burning". He also claimed that "I did not hear anything as to
why or how the wife of the accused Basudeb got died in that fire". He denied a
suggestion put by the prosecution that he had told the police that the victim told
him that her husband and her in-laws had set her on fire by spraying kerosene.
He denied a further suggestion that the victim had told him that she was
subjected to physical or mental torture by the three accused persons. Another
neighbour, Niva Rani Biswas, announced in her evidence-in-chief that she had
come to court with the accused persons on that day when she was being
examined. She claimed in her evidence-in-chief that she had heard that
Basudev's first wife had committed suicide by taking poison and that his second
wife Shila died after she suffered a burn. She could not even say where Shila
suffered her burn injuries, though she was one of the persons who accompanied
Shila to the hospital. This witness also denied that she had informed the
investigating officer that the victim was subjected to torture at her in-laws' or
that the victim had confided in such witness in such regard.
8. Another neighbour of the victim's in-laws was called by the prosecution at
the trial. Though he was not formally declared hostile, he said that he "cannot
say why she preferred to die in that way." The house of such neighbour was at a
distance of 50 meter from the house of the appellants, but the witness claimed
that he knew nothing of the incident. He also said that Shila had not told him of
any torture at her in-laws'.
9. The husbands of two of the victim's sisters or cousins were examined and
they claimed that Shila was tortured at her in-laws'. One of them claimed that he
had "heard from Shila that the accused persons of this case, put fire on her
person." He alleged that Shila had told him so while she was at the Lalbagh
Hospital. In course of his cross-examination, he said that he met the victim on
five days while she was at the hospital but prior to then the victim had not
spoken to him about the torture she suffered at her matrimonial home. The other
brother-in-law disclosed that the victim complained of her misery at her in-laws'
when she visited his house. He alleged that the mother-in-law of the victim "put
fire on her person after sprinkling kerosene oil and that neighbour Niva Rani took
her to hospital" thereafter, but such part of the evidence must be regarded as
hearsay. He did not even indicate how he came to know of such matter.
10. An aunt of the victim was called as PW-13. She described the victim as her
husband's younger brother's daughter. She claimed to have learnt of the
incident of Shila suffering burn injuries from her daughter. She said that she
rushed to the Jiaganj Hospital and found Shila in "acute unrest". She claimed
that "After reaching there I talked to Shila who disclosed that her in-laws are
responsible for her injuries." Such witness proved her signature as a witness to
the inquest report. She was resolute in denying the adverse suggestions given to
her in her cross-examination. An uncle of the victim was also called as a witness.
He claimed to have met the victim at the Lalbagh Hospital when "She was able to
talk and she disclosed to me that her in-laws put fire on her person to which she
recd. (sic, received) burn injuries on her person." Such witness was also a witness
to the inquest report.
11. A cousin of the victim, Baby Halder, was next called as a witness by the
prosecution. She testified that at about 9.30 am on the day of the incident, Niva
brought Shila "in front of my house with the help of van" and Niva called me and
"told that there was a quarrel in between Shila and her in-laws in the night in
which Shila recd. (sic, received) burn injuries." Baby Halder went on to narrate
that "Shila also told me that her mother-in-law put fire on her body. Nibha again
told me that she can't say what actually happened in the house but she put off
the fire and brought Shila at my house." The witness identified the accused in
court and claimed that "over the issue of domestic/household work, in laws of
Shila used to quarrel with her." In her cross-examination, she claimed to have
told the investigating officer whatever she had stated in her evidence at the trial.
In her cross-examination, she said that Shila never complained that her husband
assaulted her but she used to complain of altercations between Shila and her
husband. She also maintained that the accused inflicted torture on Shila.
12. A sister of the victim, Madhabi Halder, was examined at the trial and she
claimed to have "talk with my sister at Lalbagh Hospital" when the victim "stated
that her mother-in-law set fire on her body and fled away through window ..." In
her cross-examination she claimed that she went to the hospital everyday that
her sister remained alive and said that the victim would talk to her everyday.
13. Before referring to the evidence of the five key formal witnesses, it may do
well to notice the two dying declarations and discern therefrom whether there is
any apparent or serious contradiction therein. The first dying declaration in point
of time was recorded at 12.40 pm on December 5, 2009 in the bed-head ticket:
"As per statement of the patient herself, on 04/12/09 around
9 A.M. her mother-in-law, father-in-law & husband forcefully
poured kerosene oil over her at her in-law house and they set
fire on her."
Below such recording, the medical officer who recorded such statement penned
his observation that the patient suffered 90 per cent mixed burn injuries. He also
wrote down his observation of foul smell of kerosene coming from her body. He
prescribed some treatment and put his signature at the foot of the page. To the
left of the statement attributed to the victim, the signature of a staff nurse also
appears below the endorsement "Witness". Such signature appears to have been
put at 12.50 pm on the same day.
14. The second dying declaration is said to have been recorded on December
13, 2009 at 7 pm. In the initial part, such statement refers to the torture suffered
by the victim at the hands of her mother-in-law. As to the specific incident, the
declaration records as follows:
"On the date of occurrence, my mother-in-law and father-in-
law, with common intention, poured Kerosene oil upon my
person and set fire on that and fled away through the window.
I somehow managed to open the door and came out. On
hearing my shout some neighborus poured water and
extinguished fire. My husband comes to the hospital, everyday
and cries. My father in law and mother in law fled away. My
husband went outside for his job, on the date of occurrence."
Such declaration bears the victim's thumb impression. It also bears the signature
of a medial officer. A staff nurse at the hospital also appended her signature to
the declaration as a witness. Though the two statements above should be
regarded as the only dying declarations, there is third statement which is
attributed to the victim. Such statement was allegedly obtained by the
investigating officer on December 13, 2009 under Section 161 of the Code of
Criminal Procedure, 1973 though the exact time of obtaining the statement is not
evident from the relevant document. It may be remembered in such context that
the written complaint was lodged with the police by the victim's father also on
December 13, 2009. The statement of the victim said to have been recorded by
the police appears to be so similar to the second dying declaration given by the
victim that it is tempting to perceive such statement to have been prepared on
the basis of the dying declaration made by the victim on the same day instead of
the same being seen to be another statement issued by the victim to the
investigating officer. As to the specific incident of December 4, 2009, the victim is
alleged to have informed the police that:
"On the date of occurrence, my father-in-law and mother-in-
law, with common intention, poured kerosene oil over my
person and set fire on that, and fled away. On hearing my cry
some neighbours rushed in and poured water upon my person
and extinguished fire. They took me to the hospital. My
husband was not present there at the time of such incident.
He then came to the hospital to see me, and he used to come
daily and cried to see my condition. His parents in-law (sic)
never come to see me. I have heard that they fled away."
The investigating officer put his signature at the foot of the document upon
endorsing that the statement had been recorded by him. No witness signed such
statement, though it must be remembered that it was claimed to be a recording
under Section 161 of the Code of 1973. Equally, it must not be lost sight of that
Section 162 of the Code of 1973 carves out an exception to the general bar
thereunder in respect of any statement falling under Section 32(1) of the
Evidence Act, 1872.
15. As to the apparent contradictions between the first two statements, it is
evident that the husband was named as one of the perpetrators of the crime in
the first declaration, but he was said not to have been present at the time of the
incident in the second statement. The second statement is more detailed in
respect of the commission of the offence by the parents-in-law and how they "fled
away through the window" and the victim "managed to open the door" and come
out. The third statement, if it is given any credence, matches with the second
dying declaration, though the manner in which the parents-in-law escaped after
allegedly setting the victim on fire is not mentioned.
16. It is here that the evidence of the five key witnesses must be noticed.
Before seeing their evidence it needs to be recorded that all such witnesses were
unrelated to the victim and her in-laws and that all such witnesses came into
contact with the victim only in course of discharge of their official duties. Doctor
Ujjalendu Biswas, as PW-17, testified that he was posted at the Lalbagh Sub-
divisional Hospital as a medical officer at the time that the victim was treated
there. He claimed to have examined and treated the victim from December 4 to
December 17, 2009. He asserted that at 12.40 pm on December 5, 2009 "Dr.
Bibhas Mukherjee examined the patient and prepared a note to the effect that
patient was conscious and co-operative as per statement of the patient herself."
He claimed to be acquainted with the handwriting and the signature of Dr.
Mukherjee. He referred to Exhibit-9, which was the relevant statement, and
observed that it was recorded in the presence of nurse Rupalisha Ghosh and
prepared in course of official duty. He further testified that "On 13.12.2009 at 7
p.m. the patient made dying declaration before me (with) full consciousness and
at her will in presence of witnesses (sic) Aloka Bhattachariya (Ward sister). Dying
declaration was taken as per request of S.D.O. The patient put L.T.I on the dying
declaration sheet in my presence." He repeated the essential parts of the dying
declaration of December 13, 2009. In his cross-examination he admitted that he
had not issued "any separate fit certificate regarding her fitness to make dying
declaration" on December 13, 2009 and added that "I made an endorsement on
the dying declaration sheet to the effect that her statement was taken with full
consciousness and at her will."
17. Staff nurse Aloka Bhatacharjee testified that on December 13, 2009 she
was posted at the Lalbagh Sub-divisional Hospital. She proved her signature on
the relevant document and asserted that "one burn patient named Shila made a
dying declaration before doctor Ujjalendu Biswas in my presence." She repeated
the essential parts of the dying declaration. In course of her cross-examination,
she could not remember whether the relevant doctor checked the heart-beat,
pulse or blood pressure of the victim before recording the dying declaration. She
also claimed that she attended to the victim on all other days except the day
when the dying declaration was recorded on December 13, 2009.
18. Dr. Bibhas Mukherjee, PW-20, testified that he was a medical officer at the
Lalbagh Sub-divisional Hospital and was posted in such capacity during the time
the victim remain admitted there. He clarified that the victim was not admitted
under his care, "but I examined her on call." He reiterated the statement of the
patient that he recorded on December 5, 2009. He testified that the victim was
conscious and cooperative at that time. He corroborated his observation of the
foul smell of kerosene oil emanating from the body of the victim. He proved his
signature on the relevant page of the bed-head ticket and said that the version of
the patient as recorded by him who also witnessed by a staff nurse on duty,
Rupalisha Ghosh. No suggestions were given to him by the defence as to the
state of the health of the victim or of any anomaly in his recording the statement
of the victim.
19. Staff nurse Rupalisha Ghosh confirmed in her evidence that "on 5.12.2009
at about 12.40 pm one burn patient named Shila Biswas made a dying
declaration before doctor Bibhas Chandra Mukherjee in my presence." No
suggestion was put to such witness by the defence as to her motive or of any
anomaly in the recording of the statement attributed to the victim.
20. The investigating officer was examined as PW-24. He reported that he had
collected a container of kerosene oil from the place of occurrence. He also claimed
to have recorded a statement of the victim in the hospital. The relevant statement
was exhibited.
21. The only other things of note are the statements of the appellants herein
under Section 313 of the Code of 1973. Both the appellants claimed that they
were not present in the house at the time of the incident, though neither
volunteered where else they may have been at that time. No alibi was attempted
to be set up on behalf of the appellants herein by way of suggestions given to the
prosecution witnesses at the trial. No witness was called on their behalf.
22. While appreciating the evidence, it must be recorded at the outset that no
one saw how the victim was set on fire or caught fire and there is no evidence
that either appellant was seen by any person at the place of occurrence or
running away therefrom. The oral evidence of the relatives of the victim, both
insofar as they speak of the victim being tortured at her in-laws' and of the
incident of December 4, 2009, would have to be seen first from the defence's
perspective. The father of the victim merely proved his complaint but made out
no case of torture in his evidence and admitted, in his cross-examination, that
the victim did not make any grievance against her in-laws. As to the case
attempted to be made out by the defence, a common suggestion appears to have
been put to most of the victim's relatives that they were driven by their
relationship with the victim to testify against the accused. Implicit in such
suggestion was that the relatives of the victim may have had some common angst
against the victim's in-laws. If, indeed, the relatives of the victim harboured any
grouse against the victim's in-laws, that would have been on the basis of their
perception that the victim was subjected to harsh treatment at her in-laws'. Such
perception must have had a basis and it is not unlikely that they accepted the
victim's version of her ill-treatment at her in-laws'. The common suggestion given
by the defence to almost all of the victim's relatives who were called as
prosecution witnesses, only gives credence to the motive attributed to the
appellants for the commission of the offence. Further, to repeat, no evidence was
led by the defence to demonstrate the whereabouts of the parents-in-law at the
time of the incident and no suggestion on such aspect was given to any of the
witnesses, not even to the two key witnesses who first came to the rescue of the
victim but later turned hostile.
23. In the state of the evidence, it is apparent that it was only after the victim
managed to come out of her room and onto the verandah that her cries and her
pitiable condition drew the attention of at least two neighbours. On the way to
the victim being taken to the hospital, the victim's cousin Baby Halder was called
to join in. Neither Bidyut Biswas nor Niva Rani Biswas asserted that the victim
was unconscious at the time that such persons may have doused her flames or
even when they were taking her to the hospital. Suggestions were put to them
that they were aware of the torture inflicted by the in-laws on the victim and that
the victim had accused her in-laws in their presence. They denied such
suggestions but did not claim that the victim was unconscious or unable to
speak.
24. If the victim did not set herself on fire - and there is no evidence of the
incident being suicidal in nature - it is inconceivable that the victim would not
say anything even in her delirious state as to who had perpetrated the crime. The
over-zealousness on the part of Niva Rani to protect the victim's in-laws is
evident from her denying the place where she found the victim to have suffered
her burn injuries. It appears, on any reasonable reading of the evidence, that
these two neighbours of the victim's in-laws may have been won over by the
appellants and the third neighbour was also reluctant to testify against the
accused.
25. Merely because it was the relatives of the victim who claimed that the
victim implicated her in-laws in the crime would not make their testimonies
untrustworthy. It is evident that such relatives of the victim were aware that the
victim was treated unkindly at her in-laws'. While it is true that just because the
in-laws may not have been favourably disposed towards the victim, it would not
follow that they would or did murder her; the statements of cousin Baby Halder,
the aunt and the sister of the victim carry a ring of truth. The statements
attributed to Shila at the time that she was in the hospital covered both aspects
of her being ill-treated at her in-laws' and of her parents-in-law having committed
the heinous act of setting her on fire.
26. The statements attributed to the victim in course of the evidence of her
relatives at the trial are corroborated by the second dying declaration obtained on
December 13, 2009. Both dying declarations of December 5, 2009 and December
13, 2009 were proved and the appellants have not been able to detract therefrom,
save the inclusion of the husband's name in the first and its exclusion in the
second. The husband was given the benefit of the doubt by the trial court and
was not convicted. There is nothing contradictory qua the mother-in-law or the
father-in-law of the victim in the two dying declarations. Both statements referred
to, inter alia, the mother-in-law and the father-in-law pouring kerosene oil on the
victim and setting her on fire. That the second dying declaration went on to add
that the parents-in-law fled away through the window cannot be regarded as a
contradiction. If at all, it was a detail that was added in the second statement. In
the natural course of things, a person's statement may not be the exact repetition
of a previous statement and it is normal human conduct that would prompt
minor differences or even discrepancies, particularly in the details. Even if the
third statement attributed to the victim by the investigating officer is not taken
into account, it may be of no consequence. On the other hand, if such statement
is taken into account only for the purpose of considering whether the appellants
should be given the benefit of any contradiction therein, no contradiction can be
discovered therefrom. Though the statement under Section 161 of the Code of
1973 did not refer to how the parents-in-law "fled away", it did record that they
fled away. The manner in which the parents-in-law may have fled is corroborated
by the evidence of the victim's sister Madhabi that the victim told her at the
hospital that "her mother-in-law set fire on her body and fled away through
window ..."
27. The falsity of the testimonies of the two hostile witnesses is further evident
from Exhibit-16/1, which is the injury report prepared at the Jiaganj Hospital
upon the victim being taken there at or about 10 am on December 4, 2009.
Contrary to the evidence of Bidyut Biswas that he "shifted her to hospital", it
appears from the injury report that it was "Niva Biswas (neighbour) & Baby
Halder (Sister)" who got the victim admitted to the Jiaganj Hospital. It is also
possible that Bidyut had accompanied them but did not have his name recorded.
It is also evident that Bidyut's perception of the time of the incident "at about
10/10.30 am" was flawed and Baby Halder's estimation that Niva arrived with
Shila "at about 9.30 am" was more accurate since the injury report was prepared
in the Jiaganj Hospital at 10 am on December 4, 2009. It is preposterous that
Niva Rani Biswas attempted to deceive the court to such extent that she denied
the place where Shila suffered her burn injuries, though the evidence of Baby
Halder comes out as completely true on such aspect. It only begs the question as
to what may have prompted Bidyut Biswas and Niva Rani Biswas to lie in court.
28. Evidence is not read or appreciated by spotting the i's that have not been
dotted or the t's that may not have been crossed. The substance and the sense
that the substance conveys has to be gleaned by sifting the essential from the
details and the descriptive from the essence. No motive has been attributed to the
doctors or the nurses involved in recording the dying declarations. Their evidence
that the victim was conscious, able to speak and make herself understood
corroborates the statements attributed by the relatives of the victim to the victim
while she was at the hospital. If Shila was in a position to make the statements
that were recorded on December 5, 2009 and December 13, 2009, it is only
expected that her near and dear ones would have asked her how she suffered the
injuries and she would have given the same reply to them as in her statements
recorded by the doctors. There does not appear to be the slightest sliver of a
doubt, in the state of the evidence, as to the commission of the offence by the
appellants. Even the rough sketch-map prepared by the investigating officer,
possibly, indicated the windows in Shila's room and the adjoining room. There
was no suggestion put to Madhabi or to the investigating officer by the defence
that the windows were such that would not allow any adult to pass through.
29. Several judgments have been brought by the parties to bear on when a
dying declaration should be accepted and when contradictions in multiple dying
declarations would prompt the court to discard all or most of them. It would do
well to begin with a Constitution Bench judgment reported at (2002) 6 SCC 710
(Laxman v. State of Maharashtra) on the question whether it is imperative that a
doctor should endorse that the deceased was in a fit state of mind to make the
statement attributed to the victim in a dying declaration. The ratio decidendi and
the law declared by the Constitution Bench was that if the doctor says that the
patient was conscious but there is no certification that the patient was in a fit
state of mind, it would not render the statement faulty; particularly if the
magistrate recording the declaration was satisfied that the patient was in a fit
state of mind.
30. A three-Judge Bench in a judgment reported at (1996) 8 SCC 217 (State of
Rajasthan v. Kishore) considered whether a declaration recorded by a magistrate
in the absence of a doctor, who did not turn up despite requests, rendered it
unreliable. The further question considered was if the failure of the magistrate to
record that the statement was read over to the deceased was also a serious flaw.
The court held that neither omission was fatal and accepted the dying
declaration. In the judgment reported at (2006) 13 SCC 130 (Ranjit Singh v. State
of Punjab) the accusations against the brothers-in-law, sisters-in-law and father-
in-law in the two dying declarations were inconsistent. The court, however, did
not throw out the entirety of such dying declarations. To the extent that both
dying declarations were consistent as to the role of the mother-in-law in setting
the victim on fire was accepted and the conviction founded thereupon. In the
decision reported at (2006) 12 SCC 283 (Balbir Singh v. State of Punjab), the
second appellant was not named in the first dying declaration, but the culpability
of the first appellant was specifically disclosed in both the declarations. Further,
the doctor who recorded the first declaration admitted that the thumb impression
or signature was not obtained on the statement since the doctor feared that the
victim was about to die. The second dying declaration contained the signature of
the deceased, but it was evident that it was made with great difficulty. The court
held that, in the circumstances, it would not regard the first statement as not
being voluntary or tutored. However, in view of one of the dying declarations not
naming the second appellant, such appellant was given the benefit of the doubt.
31. In the judgment reported at (2012) 7 SCC 569 (Shudhakar v. State of
Madhya Pradesh), there were three dying declarations. The first, in which the
husband was absolved, did not appear to the court to be voluntary. But the
second and third dying declarations implicating the appellant husband were
authentic, voluntary and duly corroborated by other prosecution witnesses
including the medical evidence. The second and third dying declarations were
accepted. The principle enunciated by the Supreme Court was that where
multiple dying declarations are either contradictory or at variance with each
other to a large extent, the test of common prudence would be to first examine
which dying declaration is corroborated by other prosecution evidence. Further,
the attending circumstances, the condition of the deceased at the time of making
each statement, the medical evidence, the voluntariness and genuineness of the
statement made by the deceased, the physical and mental fitness of the deceased
and the possibility of the deceased being tutored are some of the factors which
should guide the exercise of judicial discretion.
32. In the judgment reported at (2009) 12 SCC 498 (Kanti Lal v. State of
Rajasthan), which has been placed by the appellants, it was held that the court
must always be satisfied that the deceased was in a fit state of mind to make the
statement before accepting a dying declaration. The judgment instructs that if
the capacity of the victim to narrate the facts is found to be impaired, the dying
declaration should be rejected. The appellants have also carried a judgment
reported at (2003) 1 SCC 112 (Chacko v. State of Kerala) where a 70-year-old
victim with 80 per cent burn injuries apparently gave a detailed dying declaration
indicating the minutest particulars as to the motive and the manner in which she
suffered the injuries. The declaration was disbelieved. An additional ground for
rejecting the statement was the absence of any certificate by any competent
doctor as to the mental and physical condition of the victim. In the last of the
cases cited by the appellants, a decision reported at (2007) 11 SCC 269 (Shaikh
Bakshu v. State of Maharashtra), there was no mention in the dying declaration
that it was read over and explained to the deceased. Such position was held to be
unacceptable by the court, but the court also held that the dying declaration was
otherwise unreliable.
33. There is no statutory manner or form for recording a dying declaration.
There are precedents that instruct that the best manner of recording a dying
declaration would be by putting questions to the patient and obtaining the
answers in the language of the patient; by having such recording in the presence
of an executive magistrate and a doctor upon the doctor certifying the fitness of
the patient to make the statement; and, having the answers read over and
explained to the patient by the magistrate and the magistrate making an
endorsement to such effect in the document. But that is only the ideal situation.
In the context of a dying declaration, Section 32 of the Evidence Act, 1872
mandates that statements, written or verbal, of relevant facts made by a person
who is dead are themselves relevant facts when the statements are made by the
person as to the cause of his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that
person's death comes into question. The evidentiary value of, and the sanctity
attached to, a dying declaration is not robbed of its credibility by a careless
doctor or a lazy magistrate. The essence of the judicial pronouncements in such
regard is that if the court has no doubt as to the veracity of a dying declaration in
the sense that it recorded the statement of the victim who subsequently died and
the contents thereof are not contrary to the evidence on record, it should inspire
sufficient confidence for the court to accept it.
34. In the present case the veracity of either dying declaration of December 5,
2009 and December 13, 2009 is beyond question. The statement of the victim
apparently recorded by the investigating officer on December 13, 2009 does not
appeal. But such statement is noticed, if only to consider whether it detracts, in
essence, from the other two dying declarations for the appellants herein to gain
any benefit therefrom. On a careful scrutiny of all the three statements, it does
not appear that there is any contradiction therein from which the appellants can
gain anything. The victim implicated both the appellants herein in all the three
dying declarations and such part of the victim's statement is corroborated by the
evidence of several witnesses who had met her at the hospital. The manner in
which the parents-in-law may have escaped after the victim was set on fire
cannot be regarded as an essential part of the victim's statement, though their
escape through the window is partly corroborated by Madhabi. Though it may
not be of much significance, but it is also apparent that the appellants herein did
not visit the victim at the hospital and both the formal dying declaration of
December 13, 2009 and the statement made by the victim to the police on the
same day refer to the appellants herein having "fled away". The records reveal
that the second appellant was arrested in February, 2010 and the first appellant
gave himself up several months later.
35. There can be no doubt that there are some minor discrepancies in the
statements of some of the prosecution witnesses, particularly as to the time of
the occurrence. But such discrepancies are not so glaring that they would not be
considered within the permissible ambit of the imperfect recollection of a
situation by several human minds. The substance of a statement cannot be
discarded merely because an error of an hour or two is made therein. Bidyut
Biswas, Niva Rani Biswas and Baby Halder were the key immediate post-
occurrence witnesses. Upon Bidyut and Niva Rani turning hostile, Baby Halder's
evidence called for greater scrutiny since she claimed that the victim told her that
the victim's mother-in-law had set the victim on fire. Though Niva Rani denied
that she was aware of even the place where the incident occurred, her testimony
is falsified by the fact that she was recorded, along with Baby Halder, to be one of
the persons who brought the victim to the hospital. That Baby Halder got some
time to interact with the victim immediately after the occurrence stands
established. The statement attributed by Baby Halder to the victim is
substantially corroborated by the credible dying declarations of December 5,
2009 and December 13, 2009. It is also not apparent why the relatives of the
victim would gun for the appellants unless they heard from the victim of the
appellants' involvement in the commission of the offence and both believed the
victim and sympathised with her.
36. There appears to be no ground to interfere with the order of conviction and
the consequent sentence.
37. I have read the extremely thorough discussion of the evidence in the draft
judgment prepared by learned brother Chattopadhyay. Regrettably, I have not
been able to persuade myself that there is any doubt that the prosecution case
has thrown up for the appellants herein to be given any benefit thereunder. A 22-
year-old woman married for about a year went up in flames. She did not self-
combust, nor does the evidence reveal her having attempted to commit suicide.
This was murder most horrific and gruesome and the victim's statements that
her parents-in-law were responsible for it rings true in the evidence that has
come to light. I respectfully disagree with the view taken by my learned brother
and uphold the conviction and sentence rightly ordered by the trial court.
(Sanjib Banerjee, J.)
Siddhartha Chattopadhyay, J.:
I had the privilege to have a cursory glance over the finding and judgment of my learned brother as recorded in the draft copy. I also got opportunities to hear the erudite submissions of the learned Counsels appearing on behalf of the appellants and State of West Bengal.
2. At the very outset, I cannot help mentioning the following findings of my learned brother recorded in Para 5, wherein my learned brother held "never raised any grievance against any of the family members of her matrimonial home. However, such evidence, obviously in response to a suggestion put by the defence, has to be seen in the light of the allegations contained in the complaint which he proved at the trial." In my view that the said question was not at all a suggestion rather a direct question. In response to that he admitted that he never raised any grievance. The de fact complainant further added that his daughter did not make any allegation against her in-laws. It is perhaps needless to say that the F.I.R. is always subjected to extract omission and contradiction. Therefore, it is a serious contradiction. The benefit should go in favour of the defence. I am unable to espouse the said finding.
3. In para 12, my learned brother quoted "A sister of the victim, Madhabi Halder, was examined at the trial and she claimed to have "talked with my sister at Lalbagh Hospital" when the victim "stated that her mother-in-law set fire on her body and fled away through window..." In her cross-examination she claimed that she went to the hospital every day that her sister remained alive and said that the victim would talk to her every day." First dying declaration was recorded on 4.12.2009 and the second one on December 13, 2009 at 7:00 pm. In the second dying declaration (December 13, 2009) the victim had taken a somersault and this time she had exonerated her husband and also made out a new story that her parents-in-law fled away through the window. In the second dying declarations it is recorded that her husband came to the hospital during her stay and on the date of occurrence her husband went outside. There is a time gap of about 9 days. During this period her husband regularly met her. Then chance of being tutored cannot be ruled out.
4. In para 14, my learned brother translated the third dying declaration which was also recorded on December 13, 2009. In the last line of the dying declaration, it is stated that her parents-in-law never came to see her. She heard that they fled away. Such part of her dying declaration further strengthened scope of being tutored.
5. In para 16, my learned brother mainly relied on the deposition of 'five key witnesses', who are public servants. They have proved the dying declarations. They did not say that the patient was always kept in a secluded manner, so that nobody could meet her. On the contrary third dying declaration was also recorded by one of those five key witnesses which speaks that she heard that her in-laws fled away. This certainly indicates that somebody met the victim and tutored her.
6. Now, I want to go into the details of the prosecution case, evidences of the witnesses and the directions of the Hon'ble Apex Court regarding the test of validity and authenticity of multiple dying declarations.
7. The appellants call in question the correctness of the judgment and order of conviction dated 22.09.2015 and 23.09.2015 passed by the Additional District & Sessions Judge Fast Track 1st Court, Lalbagh in S.T No. 2(5)2013 arising out of S.Sl.Case No. 134/11. By filing this appeal the convict/appellants ventilate their grievances that the learned Trial Court failed to consider the evidence of the prosecution witnesses in its proper perspectives. According to the appellants, the evidence of the prosecution witnesses are self-contradictory in nature and there are multiple dying declarations which had not been considered by the learned Trial Court properly. The appellants further contended that the learned Trial Court passed the judgment and order of conviction mainly on presumptions and failed to take into account about the faulty investigation conducted by the Investigating Officer. According to him, the appeal ought to be allowed and the judgment and order of conviction should be set aside.
8. As against this learned Counsel appearing on behalf of the State contended that the learned Trial Court has taken care of all the material aspects and it does not warrant any interference.
9. The factual scenario which emerges from a cumulative reading and scrutiny of the materials available as is follows: The marriage between the victim and the appellant Basudev was held nearly after one year back from the date of the fateful incident. At the time of marriage gold ornaments, cash etc. were given along with cot, bedding etc. But after the said marriage the victim was subjected to physical and mental torture. The victim informed this incident to her father and the father went to her matrimonial home and requested the appellants not to inflict torture upon her. His such request received a cold reception. Rather the degree of torture was increased. On 04.12.2009 over a telephonic communication, he came to know that the appellants set fire upon the victim with a view to killing her. The victim was taken to Jiaganj Rural Hospital and thereafter to Lalbagh SD Hospital. After nine days, the F.I.R was lodged. In this way the law was set into motion.
10. The defence case as it appears from the trend of cross-examination and examination of the accused/appellants under Section 313 of Cr.P.C. is their innocence and that they have been falsely implicated. After the registration of the F.I.R. the investigating agency came into operation. In course of investigation, the Investigating Officer had recorded the statement of the witnesses, took photographs of the place of occurrence, collected inquest report, collected post mortem report and thereafter charge-sheet has been submitted.
11. To come to a conclusion I should have a look upon the evidences of the prosecution witnesses. Since the conviction is based mainly on dying declarations and in such circumstances, I am of the view that the evidence of the prosecution witnesses has to be scrutinized meticulously so that the veracity of the prosecution case as a whole can be ascertained.
12. The P.W. 1 is the father of the victim. It appears from his deposition sheet that he resides within the jurisdiction of Bhagwangola Police Station, District-Murshidabad. In his examination-in-chief he never stated about any kind of torture allegedly perpetrated upon the victim. On the fateful day he got an information that the victim sustained burn injuries. If I compare with his such statement with the F.I.R., I would find that there are many contradictory statements in the F.I.R. This P.W. 1 (de facto complainant) categorically mentioned in the F.I.R. about the physical and mental torture perpetrated upon the victim by the accused persons. The F.I.R. also speaks that his daughter informed her about her torture and thereafter he went to the house of the accused and requested them not to put any torture upon her. Even after his such request the degree of torture was increased. But in his cross- examination, he failed to recollect about the contents of F.I.R. He is an unlettered rustic person. In his cross-examination, he candidly stated that his daughter was all along led a peaceful conjugal life at her matrimonial home. He also specifically stated in cross-examination that the victim never raised any grievance against any of the family members of her matrimonial home. If I consider, his such evidence with the F.I.R. then the logical conclusion would be that there is significant discrepancies in the prosecution story. The story of torture as alleged in the F.I.R. has been demolished by his own admission in his cross-examination that the victim was all along happy in her matrimonial home. As per F.I.R. he had been to the house of the accused persons after getting information from his daughter and thereafter degree of torture was increased. But in his examination-in-chief, he had not uttered any single word regarding the torture or at least misbehaviour of the accused persons. Therefore, his such contradictory statement certainly goes in favour of the defence.
13. The P.W. 2 is the scribe. He is a resident of Jiaganj. According to him, as per instruction of the P.W. 1 (de facto complainant) he had scribed the F.I.R. and it was read over and explained to the de facto complainant. From his examination-in-chief it further transpires that he knew the de facto complainant and the victim. In course of cross-examination he stated that the P.W. 1 and 15 to 16 persons requested him to scribe the F.I.R. If I consider his evidence along with the evidence of P.W. 1, it appears to me that except sustaining burn injuries of the victim no incriminating circumstances has been established against the accused persons.
14. The P.W. 3 is also a resident of Jiaganj. In his examination-in-chief he stated that after hearing the hue and cry, he rushed to the place of occurrence and found the victim in a burnt condition. This P.W. 3 has shifted her to Hospital. Surprising enough, he did not say, who others accompanied him, when the victim was being taken to Hospital. He further stated in his examination-in-chief that the police came and seized the jerricane and he is a witness to the seizure list. In course of cross-examination, he categorically stated that he heard nothing negative so far as involvement of the accused persons are concerned. The prosecution did not ask this P.W. 3, whether the victim told him that her husband and in-laws put fire on the victim. This P.W. 3, was declared hostile. The learned Counsel appearing on behalf of the prosecution submitted that evidence of this P.W. 3 cannot be considered by this Court because he is in league with the defence. As against this learned Counsel appearing on behalf of the defence submitted that evidence of hostile witnesses is also to be considered and the said statement should be considered in favour of the accused. After going through his evidence it seems to me that he categorically stated "I do not hear as to how she sustained injury". In his examination-in-chief he stated that he extinguished the fire and she shifted the victim to hospital. He is one of the best witnesses because he has tried to save the victim. There is no explanation from the prosecution as to who informed the police about the alleged offence soon after the victim sustained such burn injuries. In course of cross- examination by the prosecution (after being declared hostile by the prosecution) he stated "not a fact that while shifting Shila to hospital, she told me that her husband and in-laws put fire on her person by spraying kerosene." In course of cross-examination by the defence he stated that the deceased used to lead a normal life in her matrimonial home. Now this Court is to consider if the evidence of such hostile witness can be taken into consideration. I cannot help quoting a decision of our Hon'ble Apex Court reported in (2016) 10 SCC 508 at Page 516 Para 32 wherein the Hon'ble Apex Court held "that the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu vs. State by drawing sustenance of the proposition amongst others from Khujii v. State of M.P. and Koli Lakhmanbhai Chanabhai v. State of Gujarat. It was enounced that the evidence of a hostile witness remains admissible and is open for a court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record."
15. In such circumstances, this Court would like to consider the evidence of P.W. 3 along with the P.W. 1. The P.W. 3 also never stated any kind of torture in his cross-examination so also P.W. 1. This P.W. 3, although declared hostile, has lent support to the P.W. 1 substantially. In my considered view, this is the dependable part of the evidence and it should be accepted because it is duly corroborated by other reliable evidence available on record.
16. The victim was the sister-in-law of the P.W. 4. In his examination-in- chief he stated that the victim always faced trouble and torture from the side of the accused persons. She heard from the victim that the accused persons set fire on her person. He is very categorical in saying that he heard it, while the victim was under treatment at Lalbagh SD Hospital. In course of cross-examination, he candidly admitted that he was not at all interrogated by the Investigating Officer. She met the victim five days in the said hospital. He also admitted in course of cross-examination that before the conversation in hospital, the victim never disclosed him anything about the torture inflicted upon her by the accused persons. His such evidence has to be considered along with statement of victim's dying declarations. In her two dying declarations, the victim had given a clean chit to her husband repeatedly. Therefore, P.W. 4's evidence does not inspire confidence because it is self-contradictory to the dying declarations as well as evidence of P.W. 1. This witness had the occasion to meet the victim for five days and therefore chance of tutoring to the victim cannot be ruled out. More so, such dying declaration was recorded when he alone came to meet the victim on the aforesaid five days. It seems to me that this witness made some improvements and embellishments. In his cross-examination, he further stated that after getting the news he rushed to the P.O. and found Shila in burnt condition and he tried to save her and shifted her to Jiaganj hospital. According to P.W. 3 he had extinguished the fire and shifted the victim to hospital and he never stated that this P.W. 4 accompanied him. This is also a kind of vital contradiction in the testimony of the prosecution witnesses so far as the P.W. 4 and the P.W. 3 are concerned.
17. The P.W. 5 is the hearsay witness and he was declared hostile his evidence is neither relevant for the prosecution nor for the defence.
18. The P.W. 6 has taken the photograph of the dead body. It is not relevant for consideration of his evidence in regard to the factual aspects.
19. The P.W. 7 is a resident of Jiaganj. According to him, the victim stayed in her matrimonial home for about six months but the F.I.R. speaks otherwise. As per F.I.R. the victim had been residing in her matrimonial home for nearly one and half years. This witness stated that the victim herself disclosed to him that all the accused persons used to inflict torture upon her. He is categorical in saying that the alleged incident took place at or about 11 am. and that the mother-in-law of the deceased put fire on her person after sprinkling kerosene. As per F.I.R. the incident took place at or about 9 am. and not at 11 am. He further stated that one of the neighbours of the victim is Nivarani. She took the victim to hospital. The P.W. 3 stated that he had shifted the victim to hospital and he never disclosed that Nivarani also accompanied him when the victim was being taken to hospital. The P.W. 1, is the father of the victim. He also categorically stated, in course of cross-examination, that he was never examined by the Investigating Officer during investigation. The P.W. 24, is the Investigating Officer and it transpires from the cross-examination of the Investigating Officer, that the said Investigating Officer went to Murshidabad Police Station only for a day to examine the witnesses. The deposition sheet speaks that this witness resides at Guljarbagh, Police Station Jiaganj. Therefore, it is crystal clear, that the Investigating Officer did not examine him at all and this witness also stated so.
20. P.W. 8 is the photographer, who had taken snaps of the victim and his evidence is not relevant for consideration.
21. The P.W. 9 conducted the inquest and P.W. 10 is the witness to the inquest.
22. The P.W. 11 in his examination-in-chief has stated "I cannot say why she preferred to die in that way." Prosecution did not declare this witness hostile. From his above quoted evidence, it seems to us that the prosecution is confused if the victim committed suicide or her death was homicidal in nature.
23. The P.W. 12 is the witness to the seizure of wearing apparels of the victim and his evidence is not much relevant.
24. The P.W. 13 is the cousin of the victim. According to her, the victim stayed in the house of the accused persons for about 6 to 7 months. But the P.W. 1, father of the victim, had stated that after one year of her (victim) marriage, he got information that the victim sustained burn injuries. Therefore, here again, there is a discrepancy in the testimony of this P.W. 3 and P.W. 1. This P.W. 13 also stated about the torture, whereas, the P.W. 1 did not say so. The P.W. 13 further stated that she got the information of incident from her daughter and she rushed to the hospital and found the victim in acute unrest condition. The victim told her then, that her in-laws are responsible for her injuries. In course of cross-examination, she specifically stated that the victim used to share her sufferings with her parents. But the father of the victim (P.W. 1) did not utter any single word in his deposition regarding alleged torture or the sufferings of the victim. This P.W. 13 has made further improvement by saying that the father-in-law of the victim told the victim in the preceding night that he does not want to see the face of Shila (victim) in the morning and for this reason the mother-in-law of Shila did the same. His such part of the evidence has not been corroborated by any other witnesses.
25. The P.W. 14 in his evidence stated that at the relevant point of time, husband of the victim was absent and her in-laws put fire on her person for which the victim sustained burn injuries. He met the victim at Lalbagh Hospital and at that time she was capable of talking and disclosed to him that her in-laws did the mischief. In course of cross-examination, he stated that he saw the victim at Lalbagh SD Hospital for the first time. According to him the Investigating Officer interrogated him in this regard at the police station on the very date at or about 10 am. It is the evidence of the P.W. 3 that he got the information at 10 to 10:30 am. and thereafter he had shifted the victim to the Hospital. The P.W. 7, on whom the prosecution relied, stated that on the date of incident at or about 11 am. the mother-in-law of deceased Shila Biswas put fire on her person after sprinkling kerosene oil. According to P.W. 7 it was at 11 am. This P.W. 14 stated that he met the victim at 10 am. at Lalbagh SD Hospital. His evidence should be thrown out on two grounds. That initially the victim was taken to Jiaganj Hospital and thereafter he was referred to Lalbagh SD Hospital. If the incident took place at or about 11 am. how this witness was examined by the police on the date of incident at or about 10 am. at Lalbagh Police Station? The Investigating Officer, in his cross-examination, categorically stated that only in one occasion he had gone to Murshidabad Police Station and at that time he had examined all the witnesses. Therefore, P.W. 14's such statement is devoid of any merit and can never be accepted as a gospel truth. This apart, the inquest report speaks that the victim was brought to Lalbagh SD Hospital on 04.12.2009 at 11:35 am. If it is so, how this witness was examined at 10 am? Regarding the alleged incident, F.I.R. was lodged on 13.12.2009 at 12:15 hours. Therefore, interrogation of the Investigating Officer at 10 am. on that very day is absolutely false.
26. The P.W. 16 is the wife of the P.W. 7. According to P.W. 16, on the relevant day at or about 9:30 am, one Niva brought Shila in front of his house with the help of van. The P.W. 7, the husband of P.W 16, did not say that Niva came to their house. On the contrary, he stated that Nivarani took the victim to hospital. That Nivarani allegedly told this witness that there was a quarrel in between the victim and in her laws in the night, and thereafter on the next morning Shila (victim) received burn injuries. This P.W. 16 is very categorical in saying that Niva told her that she could not say what actually happened in the house of the accused but she put off fire and brought Shila at her house. Her such evidence also to some extent destroys the prosecution case because Niva could not tell her what actually happened in the house. So former evidence of this P.W. 16 that Niva told her there was a quarrel has been demolished by her own subsequent statement.
27. P.W. 17 is the doctor. On 04.12.2009 at or about 11:30 the victim was admitted in the said hospital with burn injuries. After examining the victim he had referred the victim to any teaching hospital at Calcutta but patient party refused to take the patient on 13.12.2009. The patient gave a dying declaration and he had identified the L.T.I. of the victim.
28. The P.W. 18 is the sister of the victim. According to her, after two and half years, she received a phone call from a neighbour of the accused that Shila was burnt and she has been admitted in hospital. Then she went to Jiaganj Hospital and she had a talk with the victim at Lalbagh SD Hospital. She is very specific in saying that the victim told her that after setting fire her mother-in-law fled away through the window. Her such evidence also suffers from serious infirmity. No other persons had stated that after setting fire, the mother-in-law fled away through the window. In this regard, I like to add that the Investigating Officer although prepared rough sketch map but he did not give any indication about the measurement of the window so as to enable me to come to a conclusion whether an aged women could jump through the window and took to her heels. It is perhaps needless to say that ordinarily a window must have a grill fittings or iron rod or wooden rod. How the grills were broken or iron rod were removed was supposed to be brought by the prosecution. This apart, even if we assume that the window was made of bamboo sticks in that case also, it was the duty of the prosecution to bring this fact before this Court. The Investigating Officer most reluctantly had conducted the investigation.
29. Investigating Officer, in his examination-in-chief, did not say that he has taken any measurement of the window nor shown in his rough sketch map about the existence of any window at all. The role of the Investigating Officer of this case is very mysterious because only he had gone to Murshidabad Police Station on a day for recording the statement of the witnesses. The victim's parents' residence is at Raghunathpur as it appears from the deposition sheet of P.W. 1. The victim's matrimonial home is at Jiaganj. Then why the Investigating Officer had chosen to go to Murshidabad Police Station which is nobody's case, for recording the statement of the prosecution witnesses is something unusual. Some of the witnesses said that they were examined by the Investigating Officer and some of them totally ruled out the same.
30. In this instant case, the offence is serious in nature and the Investigating Officer ought to have investigated the case according to PRB manual. The approach of the Investigating Officer in recording the statement of witnesses, collection of evidence and preparation of site map is very casual. He remained unmindful. The Investigating Officer, dealing with the murder case is expected to be sincere, diligent, truthful and fair in his approach and such default of breach of duty must be fatal to the prosecution case. It is true that remissness on the part of the Investigating Officer is not always fatal to the prosecution but sometimes when the same is deserved to be dealt with utmost sincerity and if any vital point has been omitted by the Investigating Officer to investigate, certainly the said benefit shall go in favour of the accused. In this regard I want to rely on the decision reported in (2016) 10 SCC Page 221 at Page 229 Para 26 in Mahavir Singh v. State of M.P.
31. Now, I am to consider the acceptability of the dying declarations. At the very outset I want to discuss the decision of five man bench in connection with Laxman v. State of Maharashtra reported in (2002) 6 SCC 710. The Hon'ble Apex Court had decided the issues, being referred to the constitution bench. Actually the said constitution bench was asked to consider whether the decision of Paparambaka Rosamma -Vs.- State of Andhra Pradesh reported in 1999 SCC (Cri.) 1361 or the decision of Koli Chunilal Savji -Vs.- State of Gujarat reported in (2000) SCC (Cri.) 432 ought to be accepted. Whether dying declaration of the deceased so recorded can be ignored merely there was no certificate of the doctor to the extent that the patient was in a fit state of mind to make the statement or not. In Paparambaka Rosamma -Vs.- State of Andhra Pradesh, the Hon'ble Supreme Court held that since the certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement, the dying declaration could not have been accepted by the Court to form the sole basis of conviction. In Koli Chunilal Savji -Vs.- State of Gujarat another bench of Hon'ble Apex Court held if the materials on record indicate that the deceased was fully conscious and was capable making the statement the dying declaration of the deceased thus recorded cannot be ignored merely because doctor had not made the endorsement that the deceased was in a fit state of mind to make the statement in question. Since the aforesaid two decisions are contradictory to each other, so the special bench was asked to decide the issue and to settle the issue at rest.
32. While dealing with that issue, Hon'ble Apex Court held "when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement."
"Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination."
"But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable."
"Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case." Therefore, the spirit of the said judgments speaks that evidential value or weight has to be attached to such dying declaration which necessarily depends on the facts and circumstances of each particular case and the voluntary and truthful nature of the declaration can be established otherwise. (Emphasis supplied by us).
33. This judgment Laxman v. State of Maharashtra has been relied on by a subsequent bench in connection with Balbir Singh v. State of Punjab reported in (2007) 1 SCC (Cri.) 715 at Page 723 Para 24 the Hon'ble Apex Court this time held "A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable." (Emphasis supplied by me). (Regarding multiple dying declarations, the Hon'ble Apex Court relying on Laxman v. State of Maharashtra held in Para 29 "When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record." (Emphasis supplied by me). In the case Sudhakar -Vs.- State of Maharashtra reported in (2012) 7 SCC 569 Para 20 and 21 'the "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations the courts attach the intrinsic value of truthfulness to such statement. Once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. More so, where the version given by the deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.' 'Having referred to the law relating to dying declaration, now I may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the principles governing such determination. This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters.' (Emphasis supplied by me).
34. After scanning the evidence as made above I find that one witness had attended the victim, while she was in hospital for five consecutive days and he had a talk with the victim alone and no other person was there. Therefore, chance of being tutored cannot be ruled out. Most of the vital witnesses made contradictory statements regarding the time of occurrence and the manner of getting burn injuries by the victim. The Investigating Officer had conducted the investigation in a most lackadaisical manner. He did not ascertain about the existence of any window or what type of window it was and the measurement thereof. The Investigating Officer did not ascertain if anybody from the said window could jump out without breaking the said window. Victim's statement in the dying declaration speaks that somehow she managed to open the door and came out of the said room. This goes to show that at least the room was neither bolted from the inside nor from the outside. If it is, so why mother-in-law would attempt to flee away from the window.
35. Now, I am to sum up the principles laid down by the Hon'ble Apex Court in regard to dying declaration and particularly when there are multiple dying declarations.
(1) No need to obtain a certificate of fitness, if recorded by the Magistrate or the doctor.
(2) No need to mention that the declarant was physically fit and mentally before recording the statement of the victim by the doctor or by Magistrate.
(3) In all cases, if the prosecution case is proved otherwise and for this Court is to circumspect the attending circumstances, if there is any chance of being tutored by other to make such dying declaration and whether the Investigating Officer has investigated the case with great zeal, sincerity, in terms of the police manual and prepared the site plan of the place of occurrence properly.
36. In this case in hand, point No. 3 is totally missing. Evidence of all the principal witnesses (barring police personnel, photographer and doctor and nurse) are consistently inconsistent. If the omissions and contradictions are minors in nature, the Court shall tread upon that pebbles but here there are enormous boulders. So this Court does not like to jump over the same. Time of offence is not clear. The version of the so-called saviour is difficult to accept. Fleeing away of the in-laws through the window by jumping is not established. The room was not bolted from the inside or outside. Then why the in-laws would flee away through the window is mysterious and more so when the victim came out without the assistance of anybody from the said room.
37. The entire prosecution version is not at all gullible, chance of tutoring was there, which I have already mentioned at the time of scrutinising the evidence of PWs in detail.
38. Investigation was conducted in a slip-shod manner because the Investigating Officer had gone to Murshidabad Police Station only to record the statement of the witness under Section 161 Cr.P.C. The offence took place within the jurisdiction of Jiaganj Police Station. The co-villagers/witnesses were of Jiaganj Police Station jurisdiction. Victim's parents and relative resides at Bhagwangola Police Station jurisdiction. Then why Investigating Officer of Jiaganj Police Station had gone to Murshidabad Police Station for recording the statement goes to suggest that he has not applied his mind and as a result such faulty investigation is made which goes to the root of the prosecution case. The scope of grave suspicion loomed large and so it does not take the place of proof.
39. Contradictory statements and multiple omissions are there in the testimonies of the prosecution witnesses which I already referred and since the Hon'ble Apex Court dictates that the prosecution case must be proved otherwise and has given guidelines as to which are to be considered i.e. attendant circumstances, chance of tutoring and the veracity of the statement of the witnesses, and considering all these factors, I am of the view, that it would be unsafe to rely on any of the dying declarations to hold the accused persons guilty.
40. Accordingly, I have no option but to reverse the conviction. Accordingly, I allow the appeal. The impugned judgment and order of conviction passed by the Additional District & Sessions Judge, Fast Track 1st Court, Lalbagh is required to be set aside.
(Siddhartha Chattopadhyay, J.)
41. With due respect to my learned brother I want to say that my conscience does not permit me to accept his Lordship's finding.
42. Since we could not come to a consensus, I propose my learned brother to refer the matter to the Hon'ble the Acting Chief Justice for placing the same before appropriate bench.
(Siddhartha Chattopadhyay, J.) In view of the difference of opinion as aforesaid, let the matter be referred to the Hon'ble the Acting Chief Justice for a reference to a third judge as to whether the appeal is liable to succeed or fail, and to what extent.
(Sanjib Banerjee, J.) (Siddhartha Chattopadhyay, J.)