Calcutta High Court (Appellete Side)
Jagat Taran Chakraborty vs ) The State on 14 January, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
AND
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
C.R.A. No. 210 of 2002
Jagat Taran Chakraborty.... Appellant
Vs
1) The State
For the Appellant : Mr. S. K. Basu
Ms. Devipriya Mitra
Mr. Prabir Banerjee
Mr. Antarikhya Basu
For the State : Mr. S. K. Mahato
Ms. Minati Gomes
Judgment on : 14. 01.2011
RAGHUNATH RAY, J. :
Conspectus The appellant herein Jagat Taran Chakraborty, husband of the deceased of 92, Tollyguange Road, Kolkata -33 was tried by the ld. Additional Sessions Judge, 4th Court, Alipore, 24 Parganas 1 (south) in Sessions Trial No. 2 (11) of 2000 for the offence punishable under section 302 IPC. Vide judgment and order dated 22.04.02, the appellant/accused was convicted for the said offence. He was sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten thousands only) i/d to suffer further R.I. for six months as per order dated 23.04.02. Being aggrieved by the said judgment and order of conviction, the appellant preferred the present appeal.
Facts
2. Rina Chakraborty, an educated young house wife, aged 25 years succumbed to her burn injuries at M.R. Bangur Hospital at 11 PM on 31.12.99 leaving behind her daughter Romita @ Mumpi, aged about 2 ½ years. She was married to the appellant on 21.04.95. It was a love marriage. In November 1998 a maintenance case under section 125 Cr. P.C. was filed against her husband. She had to leave her matrimonial home and to reside at her parental home at 86B, Tollyguange, Kolkata 33 on and from 12.01.97. The appellant husband began to pay visit there on the plea to see her ailing father. He used to entreat her to go back to her matrimonial home. On his persuasion she ultimately returned to her husband's house on 01.11.1999.
3. On 31.12.1999 at about 10.30 AM there was a quarrel between the spouses followed by scuffling over family affairs. During such quarrel her husband poured Kerosene Oil on her and ignited a match stick which was thrown on her saree which caught fire immediately. She started screaming for help and her husband started shouting for help stating that she had set fire to 2 herself. Thereafter, neighbours came and tried to extinguish fire by pouring water. She was, thereafter, brought to M.R. Bangur Hospital by her husband and one Sinbani Ghosh (PW14). She was admitted in the said hospital for medical treatment.
4. Her contention as above was recorded by Mr. S. Banerjee, S.I. of Police attached to Tollyguange P.S. (PW 22) on 31.12.99 at 6 PM from the hospital bed in the presence of her father Sujay Kr. Haldar, since deceased and Partha Sengupta, a man of the locality (PW1). Dr. Sanjib Kr. Saha, PW 16, R.M.O. on-duty at the material point of time assisted the police officer in recording the statement of the victim by making relevant queries to her. Her R.T.I. was also taken by the police officer on the said statement. Such statement was treated as an FIR. Subsequently, the FIR was converted to a dying declaration of the victim. On her demise at 11 PM of the date of admission.
Registration of Police Cases
5. The father of the victim informed the duty officer about his daughter's injuries and her admission to Bangur Hospital. The matter was diarized under Tollyguange P.S. G.D. Entry No. 326 dated 31.12.1999 at about 2.40 PM. Subsequently Tollyguange P.S. Case No. 405 of 1999 dated 31.12.1999 under section 307 IPC was started against the accused appellant. The duty officer Sidharatha Banerjee, S.I. of Police (PW 23) rushed to Bangur Hospital and requisitioned the service of Dr. Sanjib Kr. Saha, the R.M.O. on duty of Bangur Hospital for recording the 3 victim's statement. On demise of the victim section 302 IPC was added to the said PS case. The PS case was formally endorsed to S.I. S. Banerjee for investigation.
6. Since Tollyguange PS was bifurcated and Charu Market PS was set up as per relevant government order, the said Tollyguange case was transferred to the newly created Charu Market P.S. On transfer, the Tollyguange PS Case No. 405 of 1999 dated 31.12.1999 under section 307 IPC with an added section 302 IPC was renumbered as Charu Market PS Case No. 2 dated 6.1.2000 u/s 302 IPC. A formal FIR was accordingly drawn up. S.I. Biman De, of Charu Market P.S. was asked to conduct further investigation in this case.
Charge-sheet
7. In course of further investigation the second I.O. tagged the record of Tollyguange and Charu Market PS case together as per the order of the ld. SDJM Alipore. He arrested the appellant / accused and forwarded him to the court of ld. SDJM on 6.01.2000. He also examined the relatives of the victim and other local people over the incident. He further seized some documents furnished by the father of the victim. After collection of Alamates from the Tollyguange PS he sent the same for FSL examination. The supplementary case diary of Jadavpur PS UD Case No. 1/2000 dt. 01.01.2000 together with Inquest report PM and FSL report was collected. On completion of investigation he submitted charge - sheet under section 302 IPC against the appellant.
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Commitment & charge
8. On perusal of relevant police papers and other connected materials on record the case was committed to the Court of ld. Sessions Judge, 24 Parganas (south) Alipur as per order dated 18.04.2000 passed in CGR 58/2000 by the ld. SDJM, Alipur.
On transfer of the Sessions Case No SC 61(4) 2000 ld. Additional Sessions Judge, 4th Court, Alipore 24 Parganas (south) framed the charge u/s 302 IPC against the accused appellant on 12.11.2010. He was asked to answer the following charge :-
"That you on or about 31.12.1999 at about 10.30 hours at 92, Tollyguange road, Kolkata - 33, PS Charu Market did commit murder by intentionally causing death of Rina and thereby committed an offence punishable under section 302 of the IPC and within the cognizance of the court of sessions."
On his pleading not guilty to the charge, he was put on trial.
Trial
9. During trial altogether 24 witnesses were examined on behalf of the prosecution in order to substantiate the charge of murder against the appellant. On conclusion of recording of evidence, the accused was examined under section 313 Cr. P.C. He pleaded innocence and false implication. In order to substantiate the defence case that the victim sustained burn injuries because of sudden burst 5 of a stove. Samir Sarkar, a friend of the appellant was examined as DW-I. Save and except defence suggestion to some of the witnesses regarding accidental fire, no document was filed on behalf of the defence in support of such plea of accidental fire.
10. Upon consideration of the dying declaration (Exhibit 1), FSL Report and ocular evidence adduced through 24 PWs as also solitary defence witness, the learned trial court came to a finding that the appellant set fire on her wife by pouring Kerosene Oil and also by throwing a burning match stick upon the wearing sari of the victim. He was of the opinion that the prosecution succeeded in establishing the charge under section 302 IPC beyond reasonable doubt. The order of conviction and sentence was passed accordingly as indicated earlier. Hence the present appeal.
Appellant's Contention
11. Appearing on behalf of the appellant Mr. Basu scathingly assailed the judgment impugned on the ground that the ld. Trial court passed an order of conviction basing solely on the dying declaration which is tainted ex facie. According to him, reliance should not be placed upon the so-called dying declaration which was not recorded in accordance with the principles 6 laid down by the Apex Court after observing all formalities. The presence of outsiders namely the father of the victim and a neighbour at the time of recording of dying declaration is bound to evoke suspicion in the mind of the court. There is every possibility of the victim being tutored to implicate her husband falsely. Neither Dr. Jadabendra Sen, Emergency Doctor (PW1), nor Dr. A.B. Dutta, the senior surgeon under whom the patient was admitted was approached for recording the dying declaration. On the contrary, Dr. Sanjib Kr. Saha, who never treated the victim medically at any point of time was found present at the time of recording of the dying declaration by the police officer. There is nothing on record in the shape of any documentary evidence to indicate that the service of Dr. Saha (PW 16) was requisitioned by the police officer (PW 23) through the Superintendent of M.R. Bangur Hospital for recording dying declaration of the victim. Admittedly the declarant was a Bengali speaking girl while the mother tongue of the police officer and the doctor is also Bengali. However, curiously enough the statement of the victim was recorded in English. The conduct of the police officer as also the doctor in his opinion, raises doubt about the genuineness of the dying declaration in question.
12. That apart, prior to commencement of recording of the so-called dying declaration no certificate was given by Dr. Saha to the effect that the victim was conscious and had sound state of mind to give dying declaration. In this context he has referred to a decision of the Hon'ble Apex Court reported in (2002) 2 SCC (Cri) 1318 = (2010) 5 SCC 645 [C Mangesh & Ors., Appellant vs. State of Karnataka, Respondent]. In paragraph 33 it is held inter alia that, although the 7 doctors have certified that the victims were in a fit state of health to have their statement recorded only at the end of recording of their statement. No such certificate was issued by the doctors on the eve of recording their statement. Further, it was not in the question answer form.
13. Mr. Basu, further, relies upon paragraph 34 of the said decision and argues that whenever the incident in question took place in metropolitan area there was no dearth of Metropolitan Magistrate for the purpose of recording dying declaration but in the present case no such endeavour was made from the end of the police officer to requisition the service of any Metropolitan Magistrate for recording dying declaration of the victim. He has also severely criticized the prosecution for not citing Dr. A. B. Dutta, the senior surgeon who also rendered medical treatment to the victim as one of the witnesses in this case. Dr. Dutta's examination & cross-examination was essentially required for the purpose of unearthing the truth as to why his service was not requisitioned for recording the dying declaration in question. According to Mr. Basu non-examination of Sri Dutta, the material witness has dealt a severe blow to the case of the prosecution.
14. He further refers to another ruling of the Apex Court reported in (2009) 12 SCC 671 [Hiralal, Appellant vs. State of M.P., Respondent] wherein it is held that in view of the apparent discrepancies in the two dying declaration, it would be unsafe to convict the appellant. It is, therefore, forcefully argued by him that dying declaration itself is inconsistent and not free 8 from doubt in the instant case. He, therefore, urges this court to discard such a tainted dying declaration in toto.
15. It is next argued by him that the seizure of stove in question was also shrouded with mystery since at least one seizure witness deposed that he was asked to sign the seizure list in the Police Station. There is also nothing on record to indicate that the seized stove was properly sealed and labeled prior to sending the same to the FSL. The seizure of so-called stove which was sent for forensic examination being doubtful, the report of forensic expert to the extent that there was no sign of bursting of stove is also absolutely frivolous. Therefore, according to him, in such circumstances it cannot be said that the defence case was weakened on the face of such forensic report which, according to him, does not reflect the actual state of affairs.
16. The conduct of the first I.O. (PW23) is also severely criticised by Mr. Basu on the ground that prior to initiation of the PS case Mr. Banerjee, S. I. seized some articles including the stove in question from the house of the accused at night on the date of incident. Such seizure is illegal since he was not permitted by the officer-in-charge of the PS to conduct any such investigation. This displays his over Zealousness.
17. It is further argued by Mr. Basu that even though some of the prosecution witnesses did not support the prosecution case, none of them has been declared hostile. In such circumstances, evidence transpiring during their cross-examination by the defence in course of trial is binding upon the prosecution. In this connection he has referred to a ruling of the Apex Court 9 reported in (2005) 5 SCC 258[Muktar Ahmed Ansari, Appellant vs. State of NCT of Delhi, Respondent]. It is held therein that in a criminal trial evidence of hostile witnesses not supporting the prosecution case, can be relied upon by the defence if they are not declared hostile. In this context, he invites us to look into the testimony of Kumari Sibani Ghosh, a resident of the appellant's para (PW14). It emanates from her cross-examination that the victim had sense in the hospital in between 11.30 AM and 1 PM and the victim was in a position to speak upto 1 PM and, thereafter, she could not speak. She, further deposes in her cross-examination that she found none of the family members of the victim at that time when she was lifting Rina in the Taxi. Therefore, relying upon such testimony of this prosecution witness it is vehemently argued by him that, the dying declaration has lost its sanctity and a big question mark is to be put on the certificate issued by Dr. Saha that the patient was conscious and was capable of giving dying declaration. The testimony of Dr. Saha, PW 16 should also be discarded on this score. In support of his contention Mr. Basu also refers to another ruling of the Apex Court reported in (2005) 2 SCC 272 [Rajaram, Appellant vs. State of Rajasthan, Respondent] and argues that it is not permissible to record conviction on the sole basis of dying declaration which fails to pass the test of scrutiny. The solitary piece of evidence against the appellant implicating him in the alleged offence of murder of his wife as envisaged in dying declaration should, therefore, not be relied upon. Moreso, whenever evidence of PW14 becomes binding upon the prosecution.
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18. Mr. Basu has also taken us through evidence of PWs 1, 6, 7, 11, 16, 23 & 24 in particular to show that their evidence is inconsistent and contradictory with each other and such uncorroborative evidence cannot be relied upon. Therefore, the order of conviction and sentence is liable to be set aside.
Per contra
19. Such submission is strongly disputed by Ms. Gomes, the learned counsel for the state. It is forcefully argued by her that there is no hard and fast rule that the dying declaration must be recorded by a Magistrate. The statement of a house wife on the death bed should be respected. The police officer has not committed any illegality by recording the statement of the victim in the presence of the doctor. In this context she has placed much reliance upon two rulings of the Apex Court reported in (2006) 2 SCC (Cri) 554 [Rabi Kumar @ Kutti, Appellant vs. The State of T.M., Respondent] and (2006) 3 SCC (Cri) 347[Ashok Laxman Gaikwcod, Appellant vs. State of Maharastra, Respondent]. It is submitted by her that the deceased making solemn declaration on the verge of death that the accused poured kerosene oil on her 11 person and set her on fire should not be disbelieved. That apart, the doctor opining that the deceased at the time of such declaration was fully conscious and was in a position to give the statement recorded by the Police Officer can not be discarded on the ground of non-examination of Dr. A. B. Dutta under whom the patient was admitted with the burn injuries. It is further submitted by her that it was the discretion of the Superintendent, Bangur Hospital as to who would be entrusted with the job of recording the statement of the patient admitted therein. Further whenever the emergency doctor has also been examined in support of the prosecution, the appellant's argument of withholding material witness is devoid of merit.
20. It is further submitted by her that the deceased made a statement in Bengali but the police officer recorded the same in English. However, such a situation need not be viewed with suspicion since there is a clear endorsement on the statement itself that the statement so recorded was read over and explained to the deceased who admitted the same to be correct. In support of his contention he has referred to Rabi Kumar's case (supra). Relying upon the said ruling it is 12 argued that inasmuch as the dying declaration in the present case is voluntary one and not tutored or prompted by anyone, conviction can be based on such dying declaration.
21. She also refers to a recent ruling of the Apex Court reported in (2010) 3 SCC (Cri) 1110 [Atbir, Appellant vs. Govt. NCT of Delhi, Respondent] and argues that guidelines formulated therein to judge the reliability and admissibility of the dying declaration should be applied to the facts and circumstances of the present case to test the veracity of the statement of the deceased. According to her, the declaration made by the victim in her statement is voluntary one and its evidentiary value cannot be ignored. Ms. Gomes has also relied upon another ruling of the Constitution Bench of the Apex Court reported in (2000) SCC (Cri) 432 [Lakhsman, Appellant vs. State of Maharastra, Respondent] wherein it is ruled that dying declaration would not be invalid solely on the ground that the doctor has not certified about mental state of the deceased at the time of commencement of the recording of the dying declaration.
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22. Fortified with those four rulings Ms. Gomes concludes her argument by saying that there is hardly any scope to interfere with the findings of the learned trial court and, therefore, the order of conviction and sentence should not be disturbed by this Appellate Court.
Admissibility of Dying Declaration
23. Admittedly the victim sustained serious burn injuries in her matrimonial home and succumbed to such injuries at night on the very date of occurrence. It is also not disputed that the prosecution case rests solely on the dying declaration (Ext. 1). Such dying declaration is, however, under serious challenge. On the question of admissibility of the dying declaration in question it is to be borne in mind that section 32(1) of the Evidence Act (in short said Act) is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination it is not creditworthy. Section 32 (1) of the said Act, in fact, renders admissible a statement of the victim not merely with regard to the cause of his / her death but also with regard to all the circumstances of the transaction which resulted in the death of the maker of the 14 statement. No part of the statement can be excluded on the ground that such portion of the statement does not refer directly to the actual cause of the declarant's death. Therefore, the statements of the deceased must be the statements of circumstances closely connected with the transaction resulting in death. In other words, the circumstances must have some proximate relation to the actual occurrence.
24. The admissibility of such statements made on the death bed rests on the principle that a man who is under the shadow of impending death is expected to disclose the truth and not likely to implicate an innocent person falsely. Therefore, the dying declaration, if believed, is a good substantive evidence. It is also equally true that as the maker is not available for conventional test of cross
- examination, such dying declaration must be subjected to a close scrutiny and circumspection as to its truthfulness. Like any other important piece of evidence it is to be tested in the light of surrounding circumstances and other relevant facts of the case. While making such exercise it is to be kept in mind that it is the statement by the person who has not been examined in court on oath as also 15 other important aspect of the matter that a dying man is normally not likely to tell a lie or to concoct a case so as to implicate an innocent person.
25. Principles governing the admissibility of dying declaration have been summed up in Paragraph 22 of a recent decision reported in (2010)3 SCC (Cri) 1110 [Atbir, Appellant vs. Government of NCT Delhi, Respondent] (supra) as under
:-
" 22. ...............
i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
iv) It cannot be laid 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.
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v) Where the dying declaration is suspicious, it should not be acted upon without corroboarative evidence.
vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
vii) Merely because, a dying declaration does not contain on the details as to the occurrence it is not to be rejected
viii) Even if it is a brief statement, it is not to be discarded
ix) When the witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
x) If after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is co-
herrent and consistent there shall be no legal impediment to make it the basis of conviction even if there is no corroboration."
Appreciation of Dying Declaration 17
26. Bearing in mind the principles governing the admissibility and reliability of the dying declaration enunciated in the ruling cited on behalf of the state and quoted above we would now proceed to analyse meticulously the evidence on record adduced from the side of the prosecution in order to test the creditworthiness of the dying declaration in question. Needless to say, that the learned Trial Judge, has found the dying declaration reliable and basing upon such dying declaration he has recorded an order of conviction. The dying declaration in question has thus inspired the full confidence of the learned trial court.
27. There is no doubt that the first and foremost question which arises in every case of dying declaration is whether the deceased was in a fit mental condition to make the dying declaration. The physical fitness of the deponent at the time of alleged dying declaration is required to be examined with abundant care and caution to dispel all doubts of the same being concocted. The court looks for the certificate of the doctor in this regard. In the present case, the doctor has appended a certificate of mental fitness (Ext. 1/2). He has also deposed as PW16 18 before the court that the deceased was in a fit mental condition and conscious to make the statement. As already discussed earlier great solemnity and sanctity is attached to the words of a dying person because a victim on the verge of death is not likely to tell lies. It appears from the report of the Emergency doctor (Ext. 8) that the victim was admitted under Dr. A. B. Dutta, senior surgeon and it was a case of major burn. The seized record of in-patient (bed head ticket) evinces that it was a case of burn injuries and the patient died due to cardiac respiratory failure with 35 per cent burn injuries. Similarly, the death certificate (Ext. 2) also unequivocally speaks about 30-35 per cent burn injuries. True, even the endorsement of the doctor that the declarant is in a fit state of mind is not conclusive. The police officer recording the statement must also be satisfied that the dying man was making a conscious and voluntary statement before him. Therefore, it has to be assessed from the questions put and the way in which the deceased answered. The nature and extent of injuries sustained by the victim has conclusively been established from the documentary evidence (Exts. 8, 2, 1/2 and seized bed head ticket). Since she sustained only 30-35 percent burn 19 injuries she was conscious at the time of admission as also recording of her statement.
28. A close look to the text of the dying declaration (Ext. 1) clearly indicates that the deceased gave a coherent and specific answer to the question put to her by the doctor and the police officer unhesitantly and unfalteringly. It has, therefore, to be accepted that the deceased who made the statement was mentally and physically fit to make such statement. It is reiterated that the dying declaration was recorded in the presence of a doctor who certified that the deceased was on a fit state and condition to give statement. The doctor appended a certificate to that effect at the bottom of the dying declaration. True, in so many words it is not written that the victim was fully conscious and mentally alert and remained so till the recording of the statement was complete. But the absence of a certificate by using these words exactly does not affect the credibility of the dying declaration for the simple reason that in view of 30-35 burn injuries only the patient was fully conscious and mentally alert and the cause of death of the victim was cardiac respiratory failure as recorded in the death certificate. In such 20 a situation it was not necessary for the doctor to state that when the recording started the victim was fully conscious.
Form of Dying Declaration
29. It is a settled law that there is no legal requirement that a dying declaration must necessarily be recorded in question - answer form. The dying declaration in an informal manner and as a narrative is fully admissible and is a relevant piece of evidence. In the present case, the FIR contained a declaration as to the cause of informant's death. It is immaterial to whom it is made whether to a police officer or to a magistrate. It, however, appears from the materials on record that the police officer had recorded the statement as per request of the doctor. In fact, the police officer himself did not volunteer to record the statement. Rather pursuant to his laborious endeavour the hospital superintendent directed the RMO concerned (PW16) to record the statement of the victim. PW16 deposes that on his interrogation to Rina Chakraborty S. I. wrote the statement in question. He forcefully asserts that the patient was conscious and fit to make statement. The recording officer, PW 23 corroborates the R.M.O. (PW16) on this point and 21 unequivocally asserts that the doctor S. Saha interrogated the victim Rina Chakraborty and he recorded the statement as per request of the doctor. Even though the entire exercise was in question and answer form, unfortunately the questions which were put to the victim were not noted in the recording sheet. At any rate, it is sometimes held on consideration of sequence of events that a dying declaration should preferably be in question and answer form and the exact words used by the victim must be reproduced as far as practicable. But it is not certainly inadmissible if it is recorded in narrative form. More so, whenever it is elicited during cross-examination of both the recording officer as also the doctor that questions were put to the victim by the later and her replies were recorded by the former. The nature and extent of such questions and their replies thereto have also been clearly spelt out in their cross-examination. It is also available from the cross-examination of the recording officer that some of the statements in the dying declaration in fact were given by the victim suo moto. Towards the close of his cross-examination the recording officer speaks out as under :- 22
"The victim suo moto stated the fact that I started screaming for help, and my husband started shouting for help stating that I had set fire upon myself."
30. As a matter of fact, it is not the law that if a dying declaration is not recorded in the form of question-answer by the recording officer, it should be discarded straightway. Rather whenever it is established from the surrounding circumstances and cogent evidence on record that the person recording the dying declaration recorded exactly what was stated by the deceased even though not recorded in question-answer form such dying declaration can be relied upon. In such view of the matter the dying declaration (Ext. 1) recorded in narrative form can easily be acted upon.
Contents of Dying Declaration
31. Significantly, the total clarity in its contents has also rendered the dying declaration a unique position which, in fact, rules out any sort of malpractice of concocting the statements in the dying declaration in the instant case. The victim has lucidly narrated the circumstances leading to the strained marital relationship with the appellant which forced her to file a maintenance case 23 against her husband and also to leave her matrimonial home within two years of their conjugal life. Her father's illness drew both of them closer and the appellant husband prevailed upon her to go back to her matrimonial home. On his persuasion on the first day of November 1999 she returned to her husband's place. On the last date of the same year the gruesome incident of pouring kerosene oil by her husband on her occurred. This was followed by throwing of a burning match stick on her saree which caught fire immediately. Such an act of cruelty was preceded by a quarrel followed by scuffling between the spouses over the family affairs. It is also stated by her in the statement that neighbours came and poured water to extinguish fire. She was then brought to M.R. Bangur Hospital by her husband and one Sibani Ghosh (PW14). Thereafter she was admitted in the ward for treatment.
32. Turning to ocular evidence of PW 1,6,7, 11,16 & 23 it is found that the contents of dying declaration stand fully corroborated by their oral testimony. PW1, the close neighbour of Sujoy Halder, the victim's father clearly deposes that he came to learn from Sujay Halder since deceased that her daughter was 24 burnt to death by Jagat, the appellant who poured kerosene oil over the body of his daughter and set her on fire. The last two sentences of the dying declaration also stand corroborated from his evidence which speaks that Jagat Taran Chakraborty, the appellant and Sibani, PW 14 took Rina, the victim to M.R. Bangur Hospital where she died in the night of 31.12.1999. Similarly PW6 Smt. Kalpana Halder, the mother of the victim also stated that Rina told her in the hospital that accused Jagat caused burn injuries by setting her on fire. On her arrival at the hospital she found that Rina had full senses though her body was burnt. Her further evidence is that she tried in different ways to settle the disputes which arose between her daughter and Jagat but to no effect. She further deposes that Rina filed a maintenance suit against Jagat and during pendency of the said suit Jagat brought Rina to his house on 01.11.1999 and she died on 31.12.1999 at her matrimonial house by burning. She had to face a grueling cross-examination but her testimony remain unshaken. She also denied the defence suggestion that her daughter committed suicide. There is also 25 nothing on record to indicate that she deposed falsely against her son-in-law out of grudge.
33. Rekha Halder, aged 12 years the younger sister of the victim as PW7 corroborates her mother by deposing that her elder sister was assaulted and abused by the appellant in her matrimonial home. It is also available from her testimony that Rina was taken to the hospital by the appellant and Sibani (PW14). The materials on record do not suggest that she was tutored to depose falsely against the appellant. In fact, nothing has been elicited from her cross- examination to discredit the cogent and consistent testimony of this child witness. Her testimony is, therefore, creditworthy.
34. PW11 Pradip Naskar, the seizure witness deposes that when he met Rina Chakraborty she was found in her senses and she had power to speak (objected to). She also told him in the hospital that the accused burnt her by pouring kerosene oil over her body and then set her on fire. He has also been subjected to a lengthy cross-examination. He has successfully stood the test of cross- 26 examination. During cross-examination she, however, failed to remember whether he stated to the police that Rina had full sense at the hospital. He asserts that he stated to the police that Rina had power to speak at the hospital. I.O. PW 23 has stated in the cross-examination that Pradip PW 11 did not tell him that he met Rina Chakraborty when she had senses and had power to speak. Such minor discrepancy cannot, however, be regarded as major contradiction and the same is not sufficient to diminish the evidentiary value of PW 11's testimony. It is quite natural for a witness deposing two years after the incident to say that it is not within his recollection as to whether he stated anything about the physical and mental condition of the victim at the material point of time. At any rate, the testimony of this witness inspires our confidence and as such reliance can be placed upon his testimony.
35. Dr. Sanjib Kumar Saha, PW 16 who was posted as R. M.O on 31.12.1999 testifies that the statement of Rina Chakraborty was recorded in his presence by S. Banerjee, S.I. of police. As already indicated earlier on his interrogation to Rina 27 Chakraborty, S. I. recorded the statement. His further evidence in unequivocal terms is that the patient was conscious and fit to make statement. After appending such certificate he put his signature as well as office seal mentioning the date, time etc. RTI of the victim was also taken on the said statement in presence of two witnesses viz. Sujay Kr. Halder, since deceased and Partha Sengupta (PW1). Those two witnesses were present and also signed the said statement in his presence. He also countersigned the victim's death certificate on 31.12.1999 under his signature and such certificate (Ext. 3) was issued by Dr. Sarmistha Ghosh, the house surgeon. It is reiterated by him in cross - examination that the victim made statement in Bengali and the police officer recorded the same in English. It is emphatically asserted by the doctor that he received written direction from the Superintendent of the Hospital but the same was not lying with him at present. He has categorically denied the defence suggestion that he was not on duty as R. M. O. in the Bangur Hospital on 31.12.1999 and so he could not produce the document to that effect. Suggestion, if plausible, is acceptable. It is quite absurd to suggest that Dr. Saha, PW16, was 28 not RMO at M.R. Bangur Hospital on 31.12.1999 for the simple reason that he had signed the dying declaration as RMO on duty of M.R. Bangur Hospital on 31.12.1999 with his office seal.
36. It is settled position of law that if the defence is to rebut the presumption he is to adduce evidence to establish conclusively that PW 16, was not on duty as residential MO of the said hospital at the relevant point of time by producing cogent and consistent evidence to that effect. In the absence of clinching evidence on the contrary it must be presumed that PW16was the RMO on duty of M.R. Bangur Hospital at the material point of time. It transpires from his cross- examination that at first he attended the victim for the purpose of examination at 5.30 PM. It further, reveals that on his interrogation the patient stated her education, qualification that she passed B. Sc. In response to his query regarding ill adjustment with her husband the victim stated to the deponent that she was mal-adjusted with her husband. It is also available from his cross-examination that when the statement of the patient was taken it was then evening. So the official letter head was not available. It is also asserted by him that on 29 31.12.1999 his duty hours start from 8 AM and it ends at 8 AM of the following day. His Attendance Register dated 31.12.1999 may be available in his office. It is also elicited from his cross-examination that the death certificate usually written by the house surgeon is sent to the RMO for his counter signature. Dr. Sarmistha Saha, being the house surgeon of the said hospital on that date wrote the death certificate. Upon this death certificate he merely put his counter signature. Despite a bit lengthy cross-examination the credit of this material witness stands unimpeached. His testimony appears to be cogent, coherent and convincing. It does not suffer from any inherent improbabilities . It has simply been suggested to this doctor attached to a government hospital that he signed the statement of the patient at the instruction of the police. Needless to say that such suggestion has emphatically been denied by the deponent. The intrinsic value of the evidence of PW 16 carries much weight and conviction. The testimony of the RMO taken as a whole thus inspires confidence in our mind. There is nothing on record even in the shape of a defence suggestion that the doctor had a bitter enmity with the appellant or had close intimacy with the 30 victim's parents and their close neighbour at any point of time. In the absence of any such specific suggestion it is hardly acceptable that the RMO attached to a government hospital of repute would flagrantly violate medical ethics and norms to hatch a heinous conspiracy with the victim's parents or a police officer against the appellant to implicate him in such a serious case of bride burning without any rhyme or reason. Further, the doctor is the best person to opine about the fitness of the deceased to make the statement. he is a disinterested and respectable witness.
37. We, therefore, feel persuaded to opine that PW16 the RMO is a wholly reliable witness. Rather having regard to the tenor of the entire evidence of this deponent it can be said that he has a great respect for truth and he being the RMO on duty of the said hospital at the material point of time has rightly been directed by the superintendent of the hospital in writing to record the statement of the victim. In the absence of anything contrary, Mr. Basu's argument, that it would have been fit and proper if either Dr. A. B. Dutta or the emergency doctor Jadabendra Saha PW12, instead of Dr. J. Saha, RMO, on duty was asked to record the statement of 31 the victim, appears to be a fallacious one for the simple reason that it was within the absolute discretion of the superintendent as to which of the doctors would be deputed in response to the requisition submitted by the police. In our view, the decision of the superintendent was a prudent one since Dr. Saha PW16 being the RMO of the hospital residing inside the hospital premises would be available easily to meet the exigencies of circumstances on emergent basis. Therefore, whenever the requisition itself was submitted before him in the afternoon he thought it fit and proper to direct Dr. Saha, RMO on duty to attend the patient for recording her statement. There is nothing to suspect the bonafides of the Superintendent of the Hospital as also the RMO and the police officer on duty.
38. Mr. Basu's argument indicting the RMO for not producing the order of Superintendent or requisition slip is of no substance in the facts and circumstances of the present case. Even if it is accepted that it would have been proper for the prosecution to get those documents exhibited during trial, the RMO cannot be held liable and for that matter his evidence cannot be brushed aside for the lapse of the prosecution. Rather, it was a sheer negligence on the 32 part of the investigating officer not to seize those documents from the hospital authorities. It is a well settled position of law that negligence or inaction on the part of the Investigating Officer cannot be a ground to view the entire prosecution case with suspicion. Moreso, whenever there is clinching evidence of the doctor, the police officer and other material witnesses like relatives and neighbours of the victim to establish that there was a strained relationship between the victim and her husband and it was the appellant alone who was responsible to cause the death of the victim. There is hardly any scope to disbelieve the corroborative testimony of the doctor and the police officer. In our considered view, no suspicious circumstances have been brought on record by the defence to indicate that contents of the dying declaration do not reflect the true state of affairs. Rather evidence and attending circumstances on record are quite in conformity with the contents of dying declaration. No variation even in the slightest form can be brought to fore to doubt the veracity of the statements contained in the dying declaration.
Importance of Dying Declaration 33
39. Against such factual scenario it would be apt to emphasize that a dying declaration being an important piece of evidence enjoys almost a sacrosanct status since it comes from the mouth of the deceased victim. In this context we may refer to paragraph 18 of a ruling reported in (1993) 2 SCC 684 = 1993 (Cri) 1634 [Kundula Bala Subrahmanyam & Anr., Appellant Vs. State of Andhra Pradesh, Respondent.] wherein the Apex Court has made the observations as under :-
"18............ A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. the shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is 34 satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.........."
Defence Case
40. Turning to the defence case it is found that the appellant himself told the emergency doctor, PW 21 that it was a case of accidental fire. The emergency doctor recorded the statement of the appellant in the IPC (Ext. 8) to the effect that while Rina Chakraborty was cooking in a stove suddenly the stove burst out and she was burnt. But the defence case stands falsified by the forensic report (Ext. 6). It is available from the evidence of the Senior Scientific officer of Physics Division Forensic science laboratory, Govt. of W.B. (PW19) that the stove bore no sign of burst. The Senior Scientific officer clearly opined that there was no stove bursting. He proved the report (Exhibit 6). During cross-examination the testimony of the forensic expert could not be shaken. However, in order to demolish the expert opinion the learned counsel for the appellant made an endeavour to call in question the legality of the seizure on the ground that such 35 seizure was made by PW 23 who was not authorized by the OIC of Tollyguange PS to investigate the relevant PS case. According to him, even after seizure the stove in question was kept in Malkhana without being properly sealed and lebelled. Curiously enough no suggestion was offered to PW 23 on that score. At any rate, the formal FIR (Ext. 16) evinces that there was an endorsement directing PW23 to investigate the case. PW 23 stated in his evidence that on receipt of information from the father of the victim that the daughter was admitted to M.R. Bangur Hospital with burn injuries he left the PS after lodging G.D. entry No. 3261 dated 31.12.1999. It reveals from column 3 (C) of formal FIR (Ext. 16) that information about the incident was received by the PS at 2-40 hours on 31.12.1999. He also tried frantically to get the statement of the victim recorded by the doctor. In such a compelling situation, immediately after recording of such statement it was quite natural for a duty bound police officer to rush to the P.O. to collect the evidence of crime from the scene of occurrence especially in a case of severe burn injuries allegedly caused to the victim by her husband. Such emergent steps are necessitated to prevent the offender from 36 causing disappearance of the evidence of crime. Needless to mention that even slightest negligence in this regard from the part of the police officer in such a serious crime would make the prosecution handicapped to prove the guilt of the offender beyond reasonable doubt during criminal trial.
Seizure List
41. The seizure list (Ext. 2) indicates that (i) one pump kerosene stove red colour
(ii) one ship match box containing some match sticks and also some burnt match sticks (iii) one old glass bottle containing some kerosene (iv) some burn pieces of cloth (v) one handkerchief soaked in kerosene were seized from the first floor kitchen space of appellant's house in between 6.15 PM and 7 PM on 31.12.99 in the presence of two witnesses namely (i) Pradip Naskar, PW11 and (ii) Barun Chakraborty PW8. The importance of emergent seizure of these five incriminating items in the instant case for an effective and efficacious investigation can hardly be denied. That apart it transpires from the cross - examination of the seizing 37 officer that after being entrusted with the job of investigation he started investigation into the case. It further reveals from his cross-examination that at the enquiry stage he was sent to the M.R. Bangur Hospital where the victim was admitted. True, Barun Chakraborty PW8 has stated that he was asked by the police to sign the seizure list in the PS. On the contrary, another seizure witness namely Pradip Naskar (PW11) who was present during seizure has not supported the version of PW 8. Therefore, taking testimony of both the seizure witnesses as a whole into account we feel inclined to opine that the legality and authenticity of the seizure list (Ext. 2) cannot be called in question. It is, therefore, now crystal clear that appellant's assertion of accidental fire is not backed by materials on record. It has been suggested to some of the witnesses through cross- examination that the victim committed suicide while the appellant himself gave a statement to the emergency doctor that when the victim was cooking in a stove, suddenly the stove burst out and victim was burnt. Again during his examination under section 313 Cr. P.C. the appellant said that he was not at home, he could not say whether his wife died in her husband's house after suffering burn. It is, 38 therefore, quite evident that the defence has failed to make out a consistent case about the cause of the victim's death Analysis
42. Before coming to a conclusive decision as regards to reliability and trustworthiness of dying declaration it would be convenient to analyse the materials and circumstances on record to ascertain both physical and mental fitness of the deceased at the material point of time as also the preponderance of probabilities in respect of tutoring or promoting the victim to make such a dying declaration which has been described as mere a figment of imagination on behalf of the appellant.
43. Adverting to the text of the dying declaration (Ext. 1) it is found that the said statement was recorded by a police officer PW 23 who has made an endorsement (Ext. 2/1) after its recording to the effect that the statement recorded by him was read over and explained in Bengali and admitted to be correct under his signature and date on 31.12.1999. R.M.O. on duty Dr. Sanjib Kr. Saha, also 39 appended a certificate (Ext. 1/2) on the dying declaration under his office seal, signature with date and relevant time of recording as under:-
"The above statement was recorded in my presence. Pt. was conscious and fit to make statement."
The said dying declaration also bears the RTI of the victim Smt. Rina Chakraborty. Her RTI was taken by the Recording Officer, S. Banerjee (PW23). Sri Sanjoy Kr. Haldar, since deceased, the father of the victim, and Sri Partha Sengupta, PW1 the private tutor -cum-neighbour of the victim have also signed the dying declaration as witnesses.
44. It reveals from cross-examination of Sidhartha Banerjee S. I. PW 23 that he reached the hospital at 02.45 PM to 3.00 PM and he met the Superintendent of Bangur Hospital after a good deal of efforts. He submitted the requisition for deputing a doctor to record the victim's statement. The R.M.O. namely Dr. S. Saha, was asked to record the statement. It transpires from his testimony that the doctor interrogated the deceased and he recorded her statement as per request of the doctor. He has proved the statement (Ext.1). It also reveals from 40 his cross-examination that the victim stated to him in Bengali while he wrote the same in English. His assertion stands corroborated PW 16 in his testimony. Dr. Saha PW16 testifies that the statement of Rina Chakraborty was recorded in his presence by S. Banerjee, S. I. of police. He further corroborates PW 23 by deposing to the effect that on his interrogation to Rina, S. I wrote the statement. He further testifies that the patient was conscious and fit to make a statement. The RTI of the victim was also obtained on the dying declaration in the presence of two witnesses viz. Sujay kr. Halder and Partha Sengupta. He also counter signed the death certificate of Rina Chakraborty on 31.12.1999 under his office seal. It is elicited from his cross-examination that the victim made her statement in Bengali and the police Officer recorded the same in English. It is brought out from his cross-examination that as R.M.O. of M.R. Bangur Hospital he was residing at hospital accommodation on 31.12.1999. It is available from his cross- examination that he received a written a direction from the Superintendent of the Hospital but the same was not lying with him at present. It is extracted from his cross-examination that he first attended the victim for the purpose of 41 examination at 5.30 PM. PW 16 has thus corroborated the police officer (PW23) on the very crucial and material point that he attended the victim for the purpose of recording her statement on receipt of a written direction of the superintendent of the hospital. Pausing for a moment it may be pointed out here that both the police officer and the doctor have corroborated each other on the question of requisitioning the service of R.M.O for recording the statement of the victim.
45. Moreso, whenever there is no suggestion to either of these witnesses from the side of the defence that the doctor and the police officer have colluded with each other for fabricating such a fictitious dying declaration out of grudge at the instance of PW1 and others to implicate the appellant falsely in this case. It is quite probable that the Residential Medical Officer (R.M.O.) would be a natural choice for being deputed for recording the statement of the victim in the evening hours of a winter days because of his availability in the hospital premises in his capacity as R. M. O. It is pertinent to mention that the Police Officer came to the hospital premises at about 3 PM and he succeeded in approaching the Superintendent of the hospital for requisitioning the service of medical officer 42 after a long wait and this statement was ultimately recorded at 6 PM. By no stretch of imagination the bona fides of the doctor can be suspected and it would sound very far-fetched that the doctor is a part of the conspiracy to foist a false case upon the appellant by fabricating a spurious document of dying declaration. Moreso, whenever no such suggestion has been offered to the doctor during his cross-examination. 46. There is nothing on record to indicate that the deceased had any discussion with her father or neighbour prior to recording of her statement. No suggestion to the effect that she was tutored or prompted to give such statement was offered either to the police officer who recorded her statement or to the doctor who actively participated by putting some of the questions to the victim at the time of recording of her statement. Even no such suggestion was offered to the witness PW1 who was present at the time of recording and RTI of the victim also appears on the statement. The Recording Officer PW23 has also explained as to why instead of LTI RTI was taken. It is clear from his testimony that since Left Thumb of the victim was severely burnt impression of her Right Thumb was taken on the statement. In such 43 circumstances we are unable to accept the submission of Mr. Basu that the dying declaration has become tainted because of presence of her father and the neighbour by the side of her death bed. In such view of the matter the decision of the Apex Court reported in (2010) 2 SCC 85 [Sharda vs. State of Rajasthan] is easily distinguishable on facts. That apart, the concurrent findings of the courts below were set aside by the Apex Court since there were multiple contradictory dying declaration. In first two dying declarations recorded on the date of occurrence in presence of doctor the victim stated that she had sustained burn injuries accidentally while cooking food and no one was liable for same. However, in third dying declaration recorded after three days of the occurrence by the Executive Magistrate, deceased alleged that her monther - in -law had poured keresene oil on her and set her on fire. Many overwriting and some manipulations were also discernible in the said third dying declaration. These circumstances created doubt regarding veracity and correctness of the third dying declaration. Taking all these facts and circumstances into account, the third dying declaration was found not trustworthy to sustain conviction. But in 44 the present case no such suspicious circumstances are discernible. Therefore, the case in hand is not circumscribed by similar happenings.
Examination under Section 313 Cr. P.C.
47. Mr. Basu's contention that the dying declaration was not put to the appellant and as such the same has caused a serious prejudice to the defence is not factually correct. On perusal of appellant's examination sheet under section 313 Cr. P.C. it appears that the appellant had full knowledge about the existence of the dying declaration made by his wife since deceased. He pleaded his defence while answering to Question No. 17 put to him by the learned trial judge. The appellant's reply challenging the authenticity of the dying declaration is as under
:-
"The way my wife got burnt she became unable to speak. Police has submitted the statement of my wife but it was not stated by her. My wife is a highly educated lady. Therefore, her signature was taken on a white paper after her death. I was not informed about the death of my wife. Then I was in police custody. I am the legal guardian of Rina she was cremated without my consent."
48. The afore-quoted answer is sufficient to indicate that the appellant was afforded adequate opportunities to explain his stand in respect of dying declaration (Ext. 1) which has been used 45 against him to establish his guilt. Therefore, we are of the opinion that the appellant was quite aware of such an incriminating piece of evidence to be relied upon by the prosecution against him during trial. The appellant's defence has also accordingly been considered by the learned trial court in its proper perspective. We are, therefore, unable to accept Mr. Basu's arguments that the defence of the accused was prejudiced since no specific question about the recording of dying declaration was put to the appellant, in course of his examination under section 313 Cr. P.C. Prosecution witness not supporting the prosecution case
49. Much argument has been advanced from the side of the appellant on the binding effect of evidence extracted from a prosecution witness who has not been declared hostile, even though the prosecution case was not supported by him. In this context the appellant has sought to rely upon some portion of Sibani Ghosh's (PW14) statements transpiring in her cross-examination. During cross-examination she states that the victim had sense in the hospital in between 11.30 AM - 1 PM. He, however, cannot say when the victim lost her sense at the hospital. It is elicited from her further cross-examination that the victim had power to speak upto 1 PM and, thereafter, she could not speak. It is also available from her cross-examination that she interrogated Rina at the taxi and in reply she showed her forehead. She asked her why she had done this, then she put her hand over her forehead. The deponent says "it seems to me that she had committed 46 suicide (after objection)." She further proceeds to state that she has enquired in the village about the incident and came to learn that Jagat is not responsible for the incident.
50. True, even though she has not supported the case of the prosecution, she has not been declared hostile. In such a situation it is not in dispute that the defence can rely upon the evidence of such witness and it would be binding on the prosecution. Now the question crops up as to Shibani's solitary testimony during her cross-examination indicating declarant's disability to give dying declaration shall have overriding effect on medical evidence confirming her fitness to give statements before the police officer, PW 23 in the presence of R. M. O. on duty PW 16 at 6 PM on the date of incident. To our mind Shibani's uncorroborative evidence that the victim could not speak upto 1 PM cannot be so sacrosanct that it would invalidate the medical evidence and other corroborative oral testimony and materials on record. In our considered opinion the answer would be in the negative for the simple reason that unwholesome statement by any prosecution witness even if not declared hostile cannot and should not be a sufficiently strong ground to disbelieve the entire prosecution case unless such statement finds support from the evidence and circumstances on record. The testimony of this deponent that the victim had power to speak upto 1 PM is not corroborated by any other oral and documentary evidence on record. The witness herself has also not elaborated her statement as to how she could say that the victim had power to speak out upto 1 PM. Whenever she herself in the same breath has deposed that he cannot say when the victim lost her senses at the hospital. It is also not clear as to what prompted her to 47 opine that the victim has committed suicide. Such statement is also of no help to the defence since its stand is contradictory in this regard. In such view of the matter it is not clear to us as to how the defence would be benefited from the evidence of Sibani Ghosh (PW14) since her testimony suffers from serious infirmities and no credence can be lent on it. Therefore, the rulings [(2005) 5 SCC 272 (supra) and (2005) 5 SCC 258 (supra)] cited on behalf of the appellant in this regard have no application in any manner whatsoever on facts of the present case.
Post Mortem Report
51. Dr. Prangopal Bhattacharyya (PW20), conducted the PM examination over the dead body of the victim identified by constable 2426 Chattulal Shaw in connection with Jadavpur PS U/D Case 1/2000 dated 1/1/2000. After examination the Autopsy Surgeon found the following injuries :
"(1) 1st and 2nd degree burn injury on the fore head, face, nose, partial singeing of the hairs of the fore head, singeing of the eye lashes, neck, chest, upper abdomen of all around back both scapular region, both arms, both fore arms with degloved appearance of the both hands, both thighs, both legs and knee except lower abdomen, genitale and both buttocks. (2) on dissection, bruise, bounise, 1" x ½" found on the left parital region, soots are present in the trachea.
In his opinion the death was due to the effect of the burn injury stated above antemortem in nature."
48
52. During cross-examination the doctor says that in the present case 85 per cent burn injuries have been caused. He also ruled out the possibilities of any loss of memory in case of burn injuries to the extent of 85 per cent. It is frankly admitted by him that there is no mention in her PM report as to whether the death is homicidal, suicidal or accidental in nature.
53. The evidence of the Autopsy Surgeon indicates that the PM examination has been conducted in a very casual fashion. It is not clear as to why the doctor failed to give a specific opinion as to the exact nature of the death in question. It appears that he is very much evasive in his opinion about the cause of death. In fact he has failed to give a conclusive opinion about the exact nature of this unnatural death for the reasons best known to him. His claim during cross-examination that it was a case of burn injuries to the extent of 85 per cent stands contradicted by the endorsement made in the bed head ticket as also in the death certificate which speaks about only 35 per cent burn injuries and the death was caused by cardiac respiratory failure.
54. On wholesome appreciation of the medical evidence coupled with ocular evidence on record. We feel constrained to opine that the PM examination report of the victim does not reflect the actual state of affairs. In our considered view, the PM examination was conducted in a perfunctory manner and as such much reliance need not be placed upon the same.
49
Findings
55. Viewed in the light of foregoing discussion on the anvil of guidelines enunciated by the Apex Court to judge trustworthiness of the dying declaration, we feel satisfied to hold that (i) the deceased was in a fit state of mind at the time of making the statement and (ii) it was not the result of tutoring, prompting or imagination. Having regard to the evidence and circumstances on record and weighing them in the scale of probabilities we feel further convinced to hold that
(iii) the declaration was true and voluntary and (iv) there are cogent materials to corroborate the contents of the dying declaration and also (v) no suspicious circumstances have been brought on record to doubt the authenticity of the dying declaration. Therefore, conviction can safely be based upon such dying declaration.
56. The dying declaration in question is neither unnecessarily lengthy nor cryptically brief. It, however, contains all the relevant particulars and details as to the occurrence and its backdrop leading to the tragic death of the victim with severe burn injuries. In fact, the dying declaration is not at all "impregnated with any suspicious circumstance which may create a doubt in the mind of the court about its genuineness." One of the most essential conditions to make a valid dying declaration is the declarant's mental fitness to make such dying declaration. In the present case such essential requirement has undoubtedly 50 been satisfied. As a matter of fact there is no reason rather convincing for us not to act upon the dying declaration of the deceased wherein she has given 'a clear and vivid account of pouring of kerosene oil over body of her being set fire by the appellant.' Apart from the evidence of strained matrimonial relationship of the victim with the appellant as stated by her relations and neighbours, there is also documentary evidence to support the contents of the dying declaration asserting such disturbed relationship between the two. The seizure list (Ext. 17) speaks about seizure of one Xerox copy of application under section 125 Cr. P.C. filed by the victim before the learned SDJM Alipore in the year 1998 claiming maintenance from her husband and also one undertaking executed by the appellant before the OIC, Tollyguange PS that he would never torture his wife Rina. These two documents were seized on production by Sujoy Halder the father of the deceased. The Medical Certificate vide PC 48 issued by M.R. Bangur Hospital in the name of Rina Chakraborty relates to the injuries sustained by the victim as a result of assault by her husband on 08.01.97 at 1.30 PM and also 09.01.97 in the morning. This documents so seized by the police clearly vindicate 51 victim's statements appearing in the dying declaration that she was abused and ill-treated by her husband now and then leading to strained relationship.
57. It can, therefore, safely be concluded that the dying declaration in the present case does not suffer from any legal or factual infirmity since there is nothing on record to show that the deceased was unconscious and could not make statement at the material point of time when the statement was recorded at 6 PM. In fact, in view of nature of burn injuries sustained by the victim it can be said that she was not fully disabled from making any statement. In such circumstances there is no ground to disbelieve the statement of the deceased implicating her husband the appellant. In our considered opinion the dying declaration of the victim is credible and conviction on such dying declaration can safely be based.
58. Before we conclude it would be extremely apposite to refer to two cases of the Apex Court which are factually and contextually identical to the present case. In one of the cases reported in AIR 1987 SC 692 [Surinder Kumar, Appellant vs. State (Delhi Administration), Respondent] the accused was tried for murdering his wife by burning. The accused took the plea in defence that the death was accidental owing to bursting of Kerosene stove. There was also dying declaration which was recorded by one Omprakash S.I. of police PW22 in the presence of Dr. 52 Surinder Singh PW16. There was also recovery of the stove with its lid removed and burnt match stick from the kitchen of the Appellant's house. It was observed therein that this circumstance clearly goes to show that the kerosene in the stove was poured over victim and then lighted match stick was applied to her. It could not be a case of accidental fire in view of the extensive burn injuries and presence of kerosene in clothes. In such a situation the Apex Court maintained the concurrent findings of both the ld. Trial court and Delhi High Court and confirmed the conviction and sentence of life imprisonment. The case in hand is also similarly circumscribed. In Kailash Kaur's case reported in AIR 1987 SC 1368 [Kailash Kaur, Appellant vs. State of Punjab, Respondent] the dying declaration by the victim was relied upon. In this case the Head Constable recorded the statement and the doctor put questions to the victim to ascertain the cause of her burn injuries. On the basis of the questions put by the doctor, Head Constable Naranjan Singh PW7 recorded the statement on the basis of which formal FIR was lodged at the police station. Even though the dying 53 declaration was recorded by the Head Constable on the basis of the question put by the doctor the Apex Court opined as under.:-
"There is no reason whatsoever not to act upon the dying declaration of the deceased wherein she has given a clear and vivid account of the pouring of kerosene oil over the body and her being set on fire by the appellant. We have very grave doubts about the legality, propriety and correctness of the decision of the High Court in sofar as it has acquitted Mahindra Kaur by her giving benefit of doubt but since the state has not preferred any appeal we are not called upon to go into that aspect any further."
The Apex Court further proceeded to opine as follows:-
"We only express our regret that the Sessions Judge, did not treat this as a fit case of awarding the maximum penalty under the law and that no steps were taken by the state govt. before the High Court for enhancement of the sentence. "
Decision
59. Taking a cue from the aforementioned two cases decided by the Apex Court which have similar features as are in the present case, we are emboldened to opine that the ultimate finding 54 of the learned Trial Court is sustainable. We, therefore, feel convinced to hold that evidence on record conclusively establishes the guilt of the appellant and that he has rightly been convicted under section 302 IPC. So we do not find any cogent ground to disturb the impugned order of conviction passed by the learned trial Judge. The order of conviction and sentence stands affirmed accordingly.
Result
60. In the result, the appeal is dismissed.
Direction
61. The appellant who is on bail is directed to surrender before the ld. Trial court within two weeks in default whereof the bail bond of the appellant will stand cancelled and he will be taken into custody forthwith to serve out the remaining portion of his sentence. ld. Additional District and Session Judge, 4th Court, Alipore 24 Pgs. (South) is to take appropriate steps against the convict appellant in this regard.
(Raghunath Ray, J.) I Agree, 55 (Ashim Kumar Banerjee, J.) 56