Calcutta High Court (Appellete Side)
Basudev Santra & Anr vs The State Of West Bengal & Ors on 9 July, 2015
Author: Patherya
Bench: Patherya
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Patherya
And
The Hon'ble Justice Indrajit Chatterjee
CRA 156 of 2007
BASUDEV SANTRA & ANR
-vs-
THE STATE OF WEST BENGAL & ORS
For Appellants: Mr. Subrata Bhattacharya
Mr. Dilip Kumar Saila
For the State : Mr. Manjit Singh, Learnd Public Prosecutor
Mr. Pawan Kumar Gupta
Ms. Kakali Chatterjee
Heard on : 24.6.2015, 3.7.2015. 7.7.2015 and 9.7.2015
Judgment on : 09.7 .2015
Patherya, J :
This appeal is directed against the judgment and order of conviction dated 21st December, 2006 and 22nd December, 2006 passed by the Additional Sessions Judge, 5th Court, Burdwan in Sessions Trial No. 24 of 2006 arising out Sessions Case No. 242 of 2005 whereby and whereunder the appellants were convicted and sentenced for the offence committed under Section 302 /34 I.P.C and the appellants were directed to suffer imprisonment for life with fine of Rs. 5000/-and in default to suffer rigorous imprisonment for three months.
The case of the prosecution is that on 21st September, 2000 the victim lady was brought by a Van to Madhavdihi Police Station in burnt condition. On interrogation, she informed the Officer-in-charge of the concerned Police Station that at about 9-30 hours on the same day, a quarrel had started between the accused appellant Nos. 1 and 2 and herself. In the course of quarrel, the accused appellants poured kerosene oil over her body and set her on fire. She called for help. Before the neighbors could reach, the lower parts of her body and foot to hair were burnt because of the fire. This statement of the victim lady was recorded by the Officer-in-charge of the concerned police station to which the victim lady put her L.T.I. It was recorded at 13-45 hours and thereafter Madhabdihi Police Station Case No. 25 of 2000 under Section 326/34 IPC was initiated. On 23rd September, 2000 the victim died. Therefore, additional Section under Section 498A/302 IPC were included. The said statement, which earlier was an F.I.R, on demise of the victim became a dying declaration. For investigation purposes, the case was handed to the I.O, P.W. 13. Inquest and postmortem was conducted on the body of the victim. A rough sketch map was also drawn. Reports of the inquest and postmortem were submitted and charge sheet filed. Thereafter, the case was committed to the Court of Sessions, Burdwan and thereafter was transferred to the 5th Court of the Additional Sessions Judge, Burdwan.
Charges was framed under Section 302/34 IPC. The charges were read over and explained to the accused- appellants to which both of them pleaded not guilty and claimed to be tried. Thereafter trial began and the prosecution examined 13 witnesses. No witness was examined by the defence. The accused appellants were examined under section 313 Cr.P.C. On consideration of both documentary and oral evidence, the order of conviction and sentence was passed.
Counsel for the accused appellants submits that the appellant no. 1 after the order of conviction was passed and during the pendency of this appeal, has expired. This will also be borne out from the report filed by the Superintendent of the Correctional Home at Burdwan wherefrom it will appear that the accused appellant no. 1 died on 22nd January, 2011. In view of the aforesaid the appeal as against the accused appellant no. 1 has abated. Therefore, this appeal is only being pursued by the accused appellant no. 2.
The F.I.R is not at the instance of the victim, but is at the instance of the Officer-in-charge, who has not been examined. Therefore, the existence of the FIR is in doubt. Contradictions are galore in the evidence of the witnesses so also in the statement made by the victim to P.W. 12, Doctor and the Officer-in-Charge at the Police Station. P.W. 12, Doctor, has not given any substantive evidence in respect of the statement recorded by him of the victim. Therefore, the same cannot be relied on. The Officer-in-charge was not examined and the contents of the F.I.R. remains unproved. The accused appellant no. 1 was all along with the victim. This will be borne out from the evidence of P.W.1, P.W. 2 and P.W. 3 and, therefore, it is unbelievable that the accused appellant no. 1 could have set the victim on fire. The accused appellant no. 1 was also admitted to hospital for the burns, he had received. The victim suffered 94% injury as will appear from the postmortem report. Therefore, it is unbelievable that the victim was in a position to make the statement as recorded in the F.I..R or as stated by the witnesses. There are numerous dying declarations each contrary to the other. P.W. 3,P.W. 7 and P.W. 11 have stated that it was the accused appellant no. 1, husband of the victim, who killed the victim. P.W. 6 and P.W. 8 have both stated that it was the accused appellant Nos. 1 and 2, who had killed the victim. Exhibit 5 is also in favour of the accused appellants. In fact, the evidence of P.W. 6 and P.W. 7 ought not to be relied on as they are relatives of the accused appellant no. 1and there was a discord between them. Therefore, they are seeking to fix the offence on the accused appellant no. 1 to fulfill their grudge against him.
The Medical Officer, P.W. 12, found the victim in semi-conscious condition and in poor health. This does not evidence that the victim had capacity to talk. The evidence of P.W. 1 is coloured with embellishment. From the Postmortem report, it appears that the limbs were burnt, therefore, it was not possible for the F.I.R maker to take the L.T.I of the victim. In view of AIR 2004 SC 2816, wherein it has been held that for the contradictions in the dying declaration, the order of conviction be set aside. Reliance has also been placed on A.I.R. 2009 SC 2011, (2007) 9 SCC 151, (2004) 10 SCC 769, (2014) 7 SCC 405 , AIR 2011 SCC 2302 and (2013) 9 SCC 800. Therefore, in view of the aforesaid, the order of conviction and sentence be set aside.
Counsel for the State respondent submits that initially a case was initiated under Section 326/34 IPC as the victim was alive and it being a collective action of the appellants herein. Upon the death of the victim, additional sections being Section 498A/302 IPC were added. The victim is the F.I.R. maker and, therefore, the statement to the Officer-in-charge is admissible under Section 32 of the Evidence Act. The statement, which was the F.I.R, initially has become the dying declaration on the demise of the victim. This dying declaration needs to be considered in its right perspective. In each of the dying declaration, the victim has categorically stated that it was the accused appellants who were responsible for burning her. It has also been stated in the F.I.R, which is now the dying declaration of the victim, that because of the quarrel, the accused appellant nos. 1 and 2 poured kerosene oil over her body and burnt her. Each of the dying declarations match with that of the victim and ought not to be taken lightly.
P.W. 12 has also stated that the victim was in a a semi-conscious condition, therefore, she was able to speak. P.W. 1 has also stated that although in bad health condition, the victim was able to speak, therefore, the order of conviction be upheld.
Having considered the submission of the parties, there is no doubt that the victim died of burns which, on examination was found to constitute 94% of the injury. On hearing the loud cries of the victim, neighbors came to her assistance and took steps to ensure her survival. The said incident occurred on 24th September, 2000 at about 11-30 a.m. or 12 noon. The F.I.R. was filed at 13-45 hours on the same day under Sections 326/34 IPC and on the very same day, the accused appellant no. 2 was arrested. The victim died on 23rd September, 2000 and thereafter inquest and postmortem was conducted. Reports were also filed. It will not be out of place to mention right at the start that the accused appellants were convicted and sentenced to suffer imprisonment for life. While serving sentence, the accused appellant no. 1 expired on 22nd January, 2011, the appeal in respect of the accused appellant no. 1 has abated and needs only to be considered in respect of the accused appellant no. 2, who is the wife of the accused appellant no. 1, and on examination what emerges is that there are several dying declarations. The first dying declaration was made in the courtyard of the house of the accused appellants before P.W. 8, who has categorically stated that on being asked, the victim replied that her husband and his another wife set her on fire.
The Second dying declaration is before the Doctor and on a reading thereof, the said dying declaration is in favour of the accused appellant no. 2 but the said second dying declaration made to P.W. 12 Doctor cannot be accepted as it has not been proved by substantive evidence. No questions were put in respect thereof by the Public Prosecutor nor suggestion was given by the defence. Therefore, the said statement made before the Doctor is of no assistance, in spite of the document being marked as Exhibit 5. The third dying declaration is at the time when the victim was being taken to the Police Station on a van and it was made before two persons, namely, P.W. 6 and P.W. 7. The fourth dying declaration was made to the Officer-in-charge of the concerned police station, in the presence of P.W. 6 and P.W. 11. The dying declarations to each of the aforementioned persons differ as in the first dying declaration to P.W. 8, the victim stated that it was the accused appellant nos. 1 and 2, who had set her on fire. But in the dying declaration made to P.W. 12 Doctor, she stated that she set herself on fire and suffered injury but she has further qualified the statement by saying that she did not want to live any more in the World. This statement made to the P.W. 12 Doctor is hardly of any importance to the case in hand. It supports the case of the accused appellant no. 2. The dying declarations made to P.W.3, P.W. 7 and P.W. 11 mentioned the involvement only of the accused appellant no. 1 whereas the dying declaration made to the Officer-in-charge seeks to indict both the accused appellant nos. 1 and 2. This indictment was also heard by P.W. 6 and P.W. 7, who have narrated the same in their respective evidence but surprisingly the Officer-in-Charge before whom the dying declaration was made and who recorded the statement has not been examined. Therefore, although the preparation of the F.I.R is proved by P.W. 13 I.O but the contents of the F.I.R remained unproved. The evidence of P.W. 1, P.W. 2 so also that P.W. 11 to the extent that it relates to embracing by the victim to the accused appellant no. 1 cannot be accepted as the same is nothing but an embellishment as it was stated by the witness for the first time. Only to the said extent the evidence of P.W. 11 cannot be accepted. As the dying declarations are contradictory to each other, the accused appellant no. 2 will be entitled to the benefit of doubt, more so in view of the decision reported in A.I.R 2004 SC 2816 and (2013) 9 SCC 800. Non- examination of the Officer-in-charge denied the accused appellants the right of examining him and this, therefore, in view of (2013)9 SCC 800 calls for interference with the order of conviction and sentence dated 21st December, 2006 and 22nd December, 2006.
Accordingly, the order of conviction and sentence is set aside. The appeal, therefore, succeeds and is allowed.
The authorities, namely, Superintendent of the Correctional Home, Burdwan is directed to release the accused appellant no. 2, Bimala Santra, in connection with Madhabdihi Police Station Case No. 25 of 2000 dated 21.9.2000 (G.R. Case No. 1411 of 2000 arising out Sessions Case No. 242 of 2005 , forthwith on receipt of the order and judgment passed this day.
Although it has been brought to our notice by counsel for the State respondent that the F.I.R was filed on 21st September, 2000 at 13-45 hours and the same was sent to the court of the Sub-Divisional Judicial Magistrate, Burdwan on 24th September, 2000, in view of the reasons aforesaid, the said submission cannot be accepted.
Let the seized articles, kept as alamat, be destroyed after the period of limitation.
Let a copy of the judgment and order passed this day and the LCR be sent to the court below immediately. On receipt of the L.C.R., the Additional Sessions Judge, 5th Court, Burdwan is directed to forthwith send a copy of this judgment and order passed this day to the Superintendent, Correctional Home, Burdwan.
Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.
(PATHERYA,J) I agree (INDRAJIT CHATTERJEE,J)