Calcutta High Court (Appellete Side)
CRAN-4518-2014 on 24 August, 2017
1 24.08.2017
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CRAN 4518 OF 2014 IN CRA 696 OF 2014 Re: An application for suspension of sentence being CRAN No. 4518 of 2014 affirmed on 17.12.2014 in connection with Sessions Trial No. 19 of 2008 corresponding to Sessions Case No. 132 of 2008.
In re: Chandan Das Appellant Mr. Deep Chaim Kabir, Mr. Arnab Saha ..... For the Appellant. Mr. Sudip Ghosh,
Mr. Apurba kumar Dutta ..... For the State.
In a sessions trial the present appellant was convicted under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 10,000/- with default clause.
The said order of conviction and sentence has been challenged by the appellant in the appeal and after the appeal being admitted, with the liberty granted admitting the appeal, he has now approached this court for suspension of sentence and his release on bail.
The Learned Counsel for the appellant at the very outset drew our attention to the fact that a large number of prosecution witnesses namely P.W.2, P.W.6,P.W.8, P.W.13, P.W.22, P.W.25 and P.W.27 have been declared hostile. It is further submitted by the Learned Counsel that the evidentiary value of the deposition of the P.W.16, the Doctor who purportedly recorded the dying declaration is of no importance, since the evidence of P.W.16 is incomplete in nature and the defense counsel could 2 not get any opportunity to cross-examination of the P.W.16 owing to his abrupt demise in the midst of the trial and as such no importance could be attached to the evidentiary value of the incomplete deposition of PW.16. It is also submitted by the Learned Counsel that the deposition of P.W.18 could not be relied upon since the very presence of P.W.18 at the time of purported recording of dying declaration of victim is palpably disputed and unfounded as no signature of P.W.18 was at all made to the effect of the said recording and no examination of her was held by the police concerned. The P.W.16 himself has admitted in his deposition that the purported dying declaration was not recorded in presence of P.W.18, therefore, the evidence of P.W.18 could not be relied on. Lastly it is submitted by the Learned counsel for the appellant that the victim lady has unfortunately committed suicide out of distress on account of abrupt demise of her husband and P.W.6, P.W.9 and other P.W.s' have corroborated such evidence.
On the other hand, the Learned Counsel for the State submits that the conviction is essentially based on the dying declaration made by the victim and recorded by Dr. Tapas Pain, who is examined in this case as P.W.16. It is submitted by the Learned Counsel for the state that though the defense could not get any opportunity to cross-examination of the P.W.16 due to sudden demise but a document may be proved not only by its maker but by others also if he is dead or cannot be found or incapable of giving evidence. In his incomplete Examination-in-Chief P.W.16 himself stated that he recorded the statement in 3 presence of Nurse Samapika Roy. That Samapika Roy appeared and deposed as P.W.17 in the instant case. In her evidence she deposed that she was staff nurse attached to the Alipurduar S.D. Hospital since 2001. The victim Gita Das with burn injury admitted in the said hospital under Dr. Tapas Pain on 23.3.2007 and the victim made a statement to the Doctor that on the fateful night of the incident while she was teaching her children the appellant Chandan Das set her on fire. Dr. Pain recorded the statement in her presence. And she signed on that statement as a witness. As such P.W.17 is a competent witness to prove the document and its contents and she proved by her evidence that Dr. Pain recorded that statement of Gita Das in her presence and she signed on that statement as a witness. Therefore, the evidence of P.W.17 could not be disbelieved and the dying declaration made by the victim is sufficient to record a conviction against the appellant. Heard the Learned Counsel appearing for the appellant as well as the learned counsel for the state. Considered their respective statements. We have also gone through the impugned judgment as also the copy of the deposition of the witnesses produced before us and the other materials on record. Now, having regard to above and considering the finding on which the impugned order of conviction is based and the grounds on which the same is under challenge we are of the opinion that this is not a fit case for suspension of sentence. Accordingly, such prayer is refused and the application for suspension of sentence being CRAN No. 4518/2014 is rejected. 4 We make it clear that whatever have been observed hereinabove must not be construed as our findings on the merits of the case and same shall have no bearing on the final decision of the appeal.
Needless to mention we took into consideration the above facts as the same was necessary for disposal of this application for suspension of sentence.
Office is directed to call for the lower court records, if not by now the same have been received and after receiving the same, the department concerned is to prepare the requisite number of paper books within three months thereafter and as soon as the preparation of paper books is complete and the appeal is made ready for hearing, the same shall be placed for hearing before the appropriate bench.
I agree.
(Ashim Kumar Roy,J.) (Amitabha Chatterjee, J.)