Calcutta High Court (Appellete Side)
Bindeswar @ Sushanta Barman & Ors vs The State Of West Bengal on 19 August, 2016
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE ANIRUDDHA BOSE
AND
THE HON'BLE JUSTICE SANKAR ACHARYYA
C.R.A. 81 of 2007
Bindeswar @ Sushanta Barman & Ors.
Vs.
The State of West Bengal
For the appellants : Mr. P.S. Bhattacharya, advocate.
For the state : Mr. Subir Banerjee (APP)
Mrs. Kakali Chatterjee, advocate.
Mr. Pratick Bose, advocate.
Heard on : 18.04.2016, 29.04.2016, 03.05.2016,
04.05.2016, 06.05.2016, 16.05.2016,
18.05.2016, 06.06.2016, 10.06.2016,
20.06.2016, 22.06.2016, 29.06.2016,
01.07.2016, 11.07.2016.
Judgment on : 19.08.2016
SANKAR ACHARYYA, J.
Three appellants have preferred this appeal challenging the judgment and orders of conviction and sentence passed against them finding them guilty under Sections 498 A/34 and 302/34 of the Indian Penal Code (in short I.P.C.) in Sessions Trial No. 25 of 2005 corresponding to Sessions Case No. 110 of 2005 in the Fast Track Court of learned Additional District and Sessions Judge, Gangarampur at Buniadpur in the district of Dakshin Dinajpur. In the impugned judgment the appellants were sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.2,000/- and in default of payment of fine to suffer rigorous imprisonment for three months more of the offence under Section 498 A/34 of the I.P.C. and also sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.3,000/- each and in default of payment of fine to suffer rigorous imprisonment for six months more each of the offence under Section 302/34 of the I.P.C. As per order of the learned Trial Judge said sentences shall run concurrently.
The case relates to the allegations of subjecting cruelty upon the housewife Sachirani Biswas (Barman) and her homicidal death. Appellant no. 1 is her husband, appellant no. 2 is her mother-in- law and appellant no. 3 is her sister-in-law (husband's sister).
On 27.02.2005 a complaint was filed by victim's father Jagannath Biswas at Gangarampur Police Station and said police station registered FIR No. 24 dated 27.02.2005 under Sections 498- A/326/307/34 of the Indian Penal Code and under Sections 3 and 4, Dowry Prohibition Act against the appellant nos. 1 and 2 and some unnamed others. In the complaint PW 1, being the father of the victim, alleged that the victim was given in marriage with the appellant no. 1 and at the time of marriage PW 1 paid Rs.25,000/- cash and 2 tolas of gold ornaments and many useful furniture as dowry. Subsequently, appellant no. 1 demanded Rs.20,000/- more. But the PW 1 failed to satisfy that demand for which the victim was severely beaten keeping her tied in the evening of 26.02.2005 and in the night kerosene oil had been poured on her body and she was set on fire in order to kill her. Co-villagers rescued her and admitted her in Gangarampur Sub-Divisional Hospital. In the complaint it was also alleged that the victim's mother-in-law that is the appellant no. 2 often used to commit torture on her both physically and mentally.
In Gangarampur Hospital Dr. Rabindranath Biswas (PW 7) recorded dying declaration (exhibit- 3) of the victim after testing her mental condition in presence of witnesses. As per said dying declaration the patient was conscious and oriented, her physical condition was permissible for giving dying declaration and at the time of recording her dying declaration she was not under sedation (last dose of sedative drugs applied more than 10 hours before recording the dying declaration). PW 7 recorded "as per her statement, she had been caught fire while she was sleeping at night. She didn't notice any person setting fire but she smelt kerosene like substances from her body". According to her statement before PW 7 recorded in exhibit- 3, she used to be tortured physically and mentally by her husband, mother-in-law and sister-in-laws and even in the preceding evening (26.02.2005) she was beaten by her husband.
As per claim of the prosecution said victim patient was referred to Balurghat hospital from Gangarampur hospital and she was admitted in that hospital on 2.2.2005. She died on 15.3.2005. Inquest over her dead body was held by police of Balurghat P.S. in connection with Balurghat P.S. Case No. 68 of 2005 dated 15.3.2005 and also by Executive Magistrate in connection with the said Balurghat P.S. case. Post mortem examination over the dead body was done in connection with Balurghat P.S. Case No. 68 of 2005 dated 15.3.2005 by Dr. Biswanath Bandopadhyay (PW 17) and the PW 17 opined in post mortem report, "cause of death in this case in my opinion, is due to consequences of burn injury which is ante mortem in nature". As per treatment sheet (exhibit- 15/1) of Balurghat Hospital on 02.03.05 history of the patient was recorded as "H/O Burn injuries Fire set by her husband as stated by the Pt. previous Saturday night". Similar recording is present in injury report (exhibit- 13) issued on 15.03.05 by PW 20 who recorded death of the patient on 15.03.05 at 6:20 a.m. Charges under Sections 498 A/302/34 of the Indian Penal Code and under Sections 3 and 4 Dowry Prohibition Act were framed against all the three appellants in the trial Court. During trial, 23 witnesses were examined by the prosecution, the appellants were examined under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.), 1973. Defence of the appellants was that they were falsely implicated in this case and that the victim ignited herself to commit suicide. Appellant no. 1 took a plea of alibi that at the relevant time he had gone to a cultural function at Raghavpur and he was not present in his house. The other two appellants also claimed that at the relevant time they were not present at the alleged place of occurrence as they remained in their place of work in a hotel. Appellants as accused did not adduce evidence. In the impugned judgment all the appellants were found guilty of the offences under Sections 498A/34 and 302/34 of the I.P.C. and they have been convicted and sentenced. In the impugned judgment learned Additional Sessions Judge relied upon dying declaration of the victim as it transpired that the victim made oral dying declaration before the witnesses PW 1, PW 2, PW 3, PW 6 and PW 18 and also before PW 7 (a medical officer) on 27.02.05 at Gangarampur Hospital. PW 7 recorded exhibit- 3 as dying declaration. On 2.3.2005 at Balurghat hospital also the victim made statement before Dr. Lakshman Saha (PW 20) that she had sustained burn injuries and the fire set by her husband in the previous Saturday night.
At the time of hearing this appeal Mr. Bhattacharya, learned counsel for the appellant submitted that the appellants were convicted and sentenced in the trial Court on the basis of surmise and conjecture. According to him, the alleged dying declarations and contradictory statements of witnesses and in particular the witnesses who are closely related to the victim cannot be the basis of conviction and sentence of the appellants. In support of his arguments he cited decisions of the Hon'ble Supreme Court in the cases of Mano Vs. State of Tamil Nadu reported in (2007) 13 Supreme Court Cases 795, Thanedar Singh Vs. State of Madhya Pradesh reported in (2002) Supreme Court Cases (Cri) 153, State of Punjab Vs. Parveen Kumar reported in (2006) 1 Supreme Court Cases (Cri) 146, Shaikh Bakshu and Others Vs. State of Maharashtra reported in (2008) 1 Supreme Court Cases (Cri) 679, Amol Singh Vs. State of Madhya Pradesh reported in (2008) 2 Supreme Court Cases (Cri) 639, Samadhan Dhudaka Koli Vs. State of Maharashtra reported in (2008) 16 Supreme Court Cases 705, Lakhan Vs. State of Madhya Pradesh reported in (2010) 4 AICLR 341 and State of Rajasthan Vs. Shravan Ram and Another reported in (2013) 4 Supreme Court Cases (Cri)
129. He took us to the written complaint which was marked exhibit- 1 and submitted that in that written complaint there was no allegation against appellant no. 3 of torture or commission of any crime upon the alleged victim. According to him, there is no substantive evidence against any of the appellants for their conviction and sentence and the impugned judgment is liable to be set aside.
On the other hand, Mr. Banerjee learned Additional Public Prosecutor for the state respondent submitted that the appellants were rightly convicted and sentenced in the trial Court and the impugned judgment needs no interference. He also submitted that conviction and sentence may be based solely on dying declaration if it is considered as reliable and truthful. He advanced arguments that the victim consistently stated about torture and igniting her by the appellants which is trustworthy and there is no reason to discard it. Relying upon a decision of the Hon'ble Apex Court in Ganpat Mahadeo Mane Vs. State of Maharashtra reported in 1993 Cri.L.J. 298 he submitted that the recorded dying declaration cannot be discarded only because it was not recorded in question-answer form.
Having gone through the impugned judgment the foundation of conviction and sentence of the appellants as appears to us is in substance multiple dying declarations of the victim Sachirani and evidence of PW 1, PW 2, PW 3, PW 6 and PW 18 and failure of the appellants to prove their alibi.
In our opinion, in a criminal trial unless the prosecution successfully discharges its initial burden of proving the material facts to bring home a charge of penal offence against an accused, only failure on the part of accused to prove his alibi as a defence cannot be the sole foundation to hold the accused guilty. However, such failure may be taken into consideration as a link in a chain of circumstances alongwith other positive evidence of prosecution to form a complete chain of circumstances against an accused when the case is based upon circumstantial evidence.
In this appeal we have gone through the evidence adduced by the prosecution during trial. Exhibit- 1 was registered as the first information report (FIR) and PW 1 is its author. It was lodged at Gangarampur police station on 27.02.2005 at 11:00 a.m. In that document there is no attribution of any role of appellant no. 3 in the alleged crime. It is a fatal omission and its benefit must go in favour of appellant no. 3. There is no whispering about dying declaration of the victim in exhibit- 1. As such, Mr. Bhattacharya has rightly argued that it should be the inference that till the lodging of FIR there was no dying declaration of the victim within the knowledge of PW 1. It is his argument that had there been any dying declaration of the victim in presence of PW 1 certainly such vital fact would not have been omitted in exhibit- 1.
In exhibit- 1 it was complained that the appellant no. 1 (and none else) demanded Rs.20,000/- but PW 1 could not satisfy that demand for which the victim was severely beaten and kept tied in the evening of the date of occurrence and again at night kerosene had been poured on her body and fire was set on her in order to kill her. Such allegations were made against appellant no. 1 alone. Against the appellant no. 2 it was complained by PW 1 in exhibit-1 that she used to torture the victim physically and mentally very often.
In his deposition PW 1, in substance, stated that all accused persons (appellants herein) demanded and pressurised for Rs.20,000/-. We cannot rule out the arguments of Mr. Bhattacharya that the allegation against appellants no. 2 and 3 made in the deposition of PW 1 regarding demand of money is afterthought embellishment because such vital allegation is absent in exhibit- 1. Be it noted that we do not discard that part of deposition only on the ground that PW 1 is the father of the victim. On our independent cautious scrutiny on the deposition of PW 1 read with exhibit- 1 we are not satisfied to hold that the implication of appellants no. 2 and 3 regarding demand of money is intrinsically reliable or inherently probable specially when we find in the cross- examination of PW 1 that the appellants no. 2 and 3 used to stay in the same house where the appellant no. 1 stayed but in different mess and the exhibit- 1 (FIR) speaks about such demand by appellant no. 1 only. In this matter we have kept in mind the observation of the Hon'ble Apex Court in paragraphs 13 of (2007) 13 Supreme Court Cases 795 (Supra) where it is held, "In regard to interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness". We are of the opinion that totality of prosecution evidence against the appellants no. 2 and 3 regarding their claim of Rs.20,000/- is wholly unreasonable and not based on attending circumstances. The mother (PW 2) of the victim stated that all the accused persons used to torture upon her daughter for more demand of dowry items and cash. Except such omnibus statement the PW 2 did not state about any particular incident of demand of more dowry items and cash by the appellants no. 2 and 3. PW 2 did not state about source of her knowledge of any such demand. In our opinion the evidence in the nature of hearing brought by prosecution against appellants no. 2 and 3 regarding demand of more dowry or cash is not sufficient to prove it.
In the matter of allegation of torture by appellants no. 2 and 3 upon the victim in her matrimonial home during her life time learned Additional Sessions Judge in paragraph- 23 of the impugned judgment observed -
".............Sachirani Biswas during her life time stated before the I.O. in connection with Gangarampur P.S. case No. 24 dated 27.02.2005 u/s-498A/326/307/34 of I.P.C.
alongwith Section 3 & 4 of the Dowry Prohibition Act, that before one year five months she was duly married with Bindeswar @ Sushanta Barman and after marriage while she resided at her in-law's house then she was tortured by her mother-in-law and sister-in-law and as per their instruction her husband was not properly behaved with her. She further stated that there was demand and pressure of money for construction of house and as her father was unable to fulfil that demand of her in laws so she was tortured physically and mentally by her husband, mother-in-law and sister-in-law. She was assaulted by her husband, mother and sister-in-law who instigated her husband to kill her and on 26.02.2005 at evening hours her husband had beaten her mercilessly and her mother-in-law and sister-in-law both had stated that in this way of torture and assault money will not be achieved and/or gained, he should kill her and marry again thereafter, it will be more profiteering otherwise he will not be allowed to stay there further. She also stated after assault when she was crying then her husband, mother-in-law and sister-in-law were planning amongst themselves the way to her life and having unfeeded condition she had slept, and she woke up finding fire on her chest, she then cried out and came out from her room but her husband, mother-in-law and sister-in-law none had come there to escape her life, there was kerosene oil on her body and she received severe burn injury on all over her body and the local people had taken her and admitted her at Gangarampur Hospital. She also had stated that her mother-in-law, sister-in-law and husband all had poured kerosene oil on her body and set fire with intent to kill her".
Such observation appears to us as not based on evidence on record and it suffers from serious infirmity and therefore, finding of the trial Court made in the impugned judgment on the basis of such observation is obviously perverse. We like to note that PW 19 is the investigating police officer (I.O.). In his deposition he did not state that he examined the victim Sachirani Biswas or recorded her statement under Section 161, Cr.P.C. There is nothing on record to suggest that Sachirani Biswas made any such statement before the I.O.
In paragraph- 31 of the impugned judgment learned Judge in the trial Court held, "Therefore, so far as torture on Sachirani by all the accused persons as stated by the parents of Sachirani and more particularly when they could not be shaken during cross-
examination, cannot be disbelieved at all.
Rather such unchallenged statements of PW 1 and 2 coupled with due corroboration to the FIR and supported by PW 3 and 6 should be accepted, with regard to proof of Section 498A of I.P.C. prosecution has successfully proved the motive of torture by the accused persons being husband and relatives of the husband upon Sachirani as accused Bindeswar @ Sushanta Barman was inspired and instigated almost always by his mother and sister (female co-
accused persons) to create demand for Rs.20,000/- for construction of his room as during her life time victim Sachirani has directly stated it to police, and it is found from the clear evidence of PW 1 and 2 and PW 2 also stated such facts in her own language to police".
Having gone through the deposition of PW 1 we find that PW 1 did not spend any word to suggest that appellant no. 1 was inspired or instigated by appellants no. 2 and 3 to create demand for Rs.20,000/- for construction of his room. We have already discussed that Sachirani was not examined by police. PW 1 also did not state that at any point of time before the alleged incident of setting on fire the appellant no. 2 or appellant no. 3 committed physical torture on Sachirani. The PW 1 stated, "The accused persons had demanded and pressurised for Rs.20,000/- again to be brought from me by my daughter and for that reason she came to me and told me that her husband and other accused persons are demanding as above". Such allegation against appellants no. 2 and 3 is absent in exhibit- 1 (FIR). PW 2 stated that all the accused persons used to torture upon Sachirani for more demand of dowry items and cash and that at afternoon hours and night both female accused persons used to instigate appellant no. 1 who used to physically assault on her mercilessly and very frequently this scene was going on at her in law's house. She did not state that she herself had seen such incident. During cross-examination PW 2 was suggested that no physical or mental torture upon her daughter was committed and PW 2 denied such suggestion. As such, it cannot be said that the version of PW 2 regarding instigation to appellant no. 1 or physical and mental torture upon Sachirani by appellants is unchallenged. Perhaps overlooking the cross-examination of PW 2 learned Judge in the impugned judgment observed that such evidence of PW 2 (mother of the victim) is unchallenged. There is no whispering in the entire deposition of PW 3 about any sort of torture on Sachirani by appellants no. 2 and 3. But learned Judge in the impugned judgment observed in substance that PW 3 supported the PW 1 and PW 2 with regard to proof of Section 498A of the I.P.C. and it was accepted by the trial Court. In our view such finding is perverse. PW 6 does not claim herself as eye-witness of any incident of torture upon Sachirani by the appellants. According to her deposition, Sachirani in semi-conscious state in hospital in the afternoon of the following day of her receiving burn injury told the PW 6 that all the accused persons as her husband and near relatives of her husband intentionally and conjointly had set fire on her. It was challenged during her cross-examination. However, such statement of PW 6 cannot be used as corroborative evidence to the evidence of PW 1 and PW 2 regarding any torture on Sachirani on demand of more dowry or any sort of instigation by appellants no. 2 and 3 to appellant no. 1 resulting assault on Sachirani. Therefore, the observation of learned Judge of the trial court regarding corroboration to PW 1 and PW 2 by PW 6 relating to proof of Section 498A of the I.P.C. is also treated by us as perverse. It will not be out of place of mention here that PW 6 is a witness relating to marriage between appellant no. 1 and Sachirani but PW 6 did not state that the parents of Sachirani gave even a paisa as dowry to appellant no. 1 or to the other appellants at the time of such marriage or subsequent thereto as claimed by PW 1 and PW 2. The PW 13, PW 14 and PW 15 were examined by prosecution relating to an affidavit confirming marriage between appellant no. 1 and Sachirani and they also did not corroborate PW 1 or PW 2 regarding payment of dowry in the said marriage. We are not unmindful that PW 18 also stated about statement of Sachirani before him in presence of PW 1 that on the fateful day she was assaulted by all accused persons as she could not bring money and that intermittently she would be kept unfed at night and that all appellants (accused persons) took part with active role in setting fire on her. Said evidence also cannot be considered as corroborative evidence to PW 1 and PW 2 relating to any incident of torture by appellants no. 2 and 3 to Sachirani in order to prove charge under Section 498A, I.P.C.
We like to consider the evidence adduced by prosecution during trial to ascertain as to whether prosecution was successful to bring home the charge under Section 498A of the Indian Penal Code against the appellant no. 1 or not. In the exhibit- 1 the PW 1 complained specifically that the appellant no. 1 demanded Rs.20,000/- and since PW 1 could not pay that amount in time the victim had been severely beaten and she was kept tied in the evening of the fateful date. PW 1 stated in his deposition that appellant no. 1 had tied Sachirani with a tree beside their house and started physical assault on her mercilessly and subsequently he had untied the ropes and Sachirani was very much injured and she had gone on floor on a mat of date-leaves and lie down. From his said statements it can be inferred that the alleged incident of fettering Sachirani with a tree beside their house did not take place within the house. A hand sketch map with index showing location of the house of accused appellants was proved by the investigating police officer (PW 19) which was marked exhibit- 12. In that document no standing tree has been shown within the house compound of appellants. No neighbour of appellants stated about any incident of assault by appellant no. 1 to Sachirani fettering her with any tree. PW 8, PW 9, PW 10 and PW 11 were declared hostile during trial. They were cross-examined on behalf of prosecution but they were not suggested that in corroboration to the above statement of PW 1 they made any such statement before PW 19 during investigation. PW 1 did not say how he gathered knowledge about such incident. As such, his said statements are hearsay. Prosecution claimed that after the alleged incident of Sachirani's receiving burn injury she made statement on several occasions in hospital about the incidents but none of the witnesses stated that Sachirani narrated any incident of fettering her with a tree. PW 2 is the wife of PW 1 and the mother of the victim. She also did not state about any incident of assault on Sachirani by her husband (appellant no. 1) fettering with any tree in the evening of the fateful date. However, she stated that at afternoon hours and night both female accused persons used to instigate the son in law of PW 2 who used to physically assault her mercilessly and very frequently this scene was going on at her in law's house. Her such evidence is not corroborated by PW 1. PW 18 stated that on 27.02.2005 at morning hours he had gone to hospital and talked with Sachirani and she told the PW 18 in presence of PW 1 that on the fateful day reaching at her in law's house from her paternal house she was assaulted by all the accused persons as she could not bring money. PW 1 did not state that on the fateful date appellants no. 2 and 3 assaulted Sachirani. The totality of evidence adduced by prosecution during trial does not impress upon us to hold that the prosecution successfully proved the charge under Section 498A of the Indian Penal Code against the appellant no. 1. In our view the findings of the learned Judge in the impugned judgment which are contrary to our above findings cannot be sustained. Therefore, we find the appellant no. 1 is also not guilty of the charge under Section 498A of the Indian Penal Code and he also deserves acquittal of the said charge.
Some PWs described the Gangarampur hospital as Kaldighi hospital. According to PW 1, in the night of alleged occurrence the victim narrated him as to how she had suffered with such severe burn injuries caused by the accused persons particularly and none else when she was lying on floor upon the mat made of date-leaves pouring/sprinkling kerosene oil on all over her body by all the accused persons and thereafter they had set fire on her.
PW 2 stated that her daughter complained her that her (victim's) husband (appellant no. 1), mother-in-law (appellant no. 2) and sister-in-law (appellant no. 3) had set fire on the preceding day after assaulting her and pouring kerosene oil on her body just to finish her life.
PW 3 stated about statement of victim in hospital as "She complained me being asked by me at Kaldighi S.D. hospital against her husband accd. Sushanta @ Bindeswar who had set fire into her body on that very night".
According to PW 6, she went to Kaldighi S.D. hospital with others at afternoon hours to see Sachirani and they found Sachirani semi conscious at the hospital bed when Sachirani complained that all the accused persons as her husband and near relatives of her husband intentionally and conjointly having common intention had set fire on her body.
PW 7 is a Medical Officer of Gangarampur S.D. hospital who recorded exhibit- 3 as dying declaration of victim Sachirani Barman in that hospital. He found Sachirani conscious (as recorded in exhibit- although in deposition it was recorded as unconscious perhaps due to mistake) and oriented and her physical condition permitted her to make such declaration before PW 7 and others and at that point of time she was not under sedation as sedative drug was applied on the patient prior to ten hours. The patient Sachirani stated before PW 7 that she had been given fire while she was sleeping at night and she did not notice anybody setting fire but she felt smell of kerosene like substance from her body. She also stated before PW 7 that she used to be tortured by her husband, mother-in-law and sister-in-law and even in the evening of 26.02.2005 she was beaten by her husband. Exhibit- 3 corroborates PW 7 and as per exhibit- 3 it was recorded by PW 7 on 27.02.2005 at 1:00 p.m. in presence of the Superintendent of the hospital namely Seshadri Koley and two staff nurses Minati Ghosh (PW 22) and Sanchita Barua (PW 23). Said PW 22 and PW 23 also corroborated the fact of recording exhibit- 3 by PW 7.
PW 18 stated that he visited Kaldighi S.D. hospital being accompanied by PW 1. According to PW 18, at the relevant time the victim was conscious and capable to talk and she told the PW 18 that on the fateful day reaching at her in-law's house from her paternal house she was assaulted by all the accused persons as she could not bring money and intermittently she was unfed in night and that suddenly at night she was given fire by them and she howled for pain being burnt as such.
PW 20, as medical officer of Balurghat Sadar hospital stated that Sachirani Barman was admitted in female surgical ward under him and she stated to PW 20 on 02.03.2005 that she had sustained burn injury and the fire was set by her husband in the previous Saturday night.
As per above evidence, in Gangarampur S.D. hospital in the fateful night (26.02.2005/27.02.2005) the victim made statement on 27.02.2005 before PW 1 and PW 18. Said witnesses did not depose in the same tune on the point of statement of victim. PW 18 stated something more than PW 1 to the effect that victim was assaulted and kept unfed by all accused persons due to victim's failure to bring money from her father's house as stated by the victim but PW 1 did not state that such statement was made by the victim Sachirani in hospital although PW 1 stated that the victim stated as to how she received severe burn injury and brought to hospital on foot from her matrimonial home. PW 2 went to hospital after her husband's returning home from hospital at the dawn hours on 27.02.2005 and on her meeting with her daughter in hospital the victim made statement before her to the effect that all accused persons (appellants herein) had set fire on her after assaulting her and pouring kerosene oil on her body.
According to PW 3, he met Sachirani at Kaldighi hospital at the afternoon hours when the victim complained that Sushanta @ Bindeswar had set fire into her body in the night. This PW 3 claimed himself as the husband of a sister of appellant no. 1 and he was the match-maker of the marriage between victim and appellant no. 1 which facts remained unchallenged. PW 6 found the victim semi-conscious in the afternoon of 27.02.2005 when the victim complained against the accused appellants in victim's such physical and mental state.
PW 7 recorded exhibit- 3 though not in question answer form mentioning physical and mental condition of Sachirani. The evidence of PW 7 who is an independent witness and his recording of exhibit- 3 duly corroborated by PW 22 and PW 23 appears to us reliable but it does not mean that the recorded version of victim was voluntary and true. According to PW 7, Sachirani made the statement before PW 7 at 1:00 p.m. and before more than ten hours that is before 3:00 a.m. on 27.02.2005 sedative was given to Sachirani. In the meantime PW 1, PW 2 and PW 18 talked with her as claimed by said witnesses. As per exhibit- 8, the Emergency Medical Officer (PW 16) of Gangarampur S.D. hospital informed the officer-in-charge of Gangarampur police station that the victim was admitted in that hospital on 27.02.2005 at 1:50 a.m. with history of suicidal burn. Exhibit- 7 is injury report of the victim prepared by PW 16. As per exhibit- 7 read with deposition of PW 16, the appellant no. 3 admitted Sachirani in hospital stating the history of the patient as suicidal burn.
If the evidence of PW 7, exhibit- 3, PW 22 and PW 23 be believed then it may be held that statement, if any, was made by victim before PW 1, PW 2 and PW 18 when the victim was under
sedation. Since the PW 6 stated that in the afternoon of 27.02.2005 Sachirani was semi-conscious it may be held that she made no statement in full conscious state before PW 3 and PW 6. The PW 20 recorded on 02.03.2005 in exhibit- 15/2 (treatment sheet) the history of the patient as burn injury as fire set by her husband as stated by the patient with observation of PW 20 that the patient was conscious cooperative. In exhibit- 13 (injury report) PW 20 mentioned the recording of the history as recorded in exhibit- 15/2. In exhibit- 13 death of Sachirani on 15.03.2005 at 6:20 a.m. was recorded by PW 20. In exhibits- 15/2 and 13 the PW 20 did not record specifically as to whether the physical and mental condition of the patient was fit for her making dying declaration. Obviously the evidence of PW 7 and PW 20 and simultaneously the exhibits 3 and 15/2 or 13 are inconsistent.
It will not be out of place to note that the victim remained admitted in hospital from 27.02.2005 till her death on 15.03.2005 but the investigating police officer (PW 19) did not examine her in hospital and also took no attempt for recording any dying declaration of the victim by any Magistrate.
PW 1 and PW 2 both denied any previous marriage of Sachirani before her marriage with appellant no. 1 but PW 3 stated that Sachirani was married earlier and she was separated therefrom. PW 18 is the next door neighbour of victim's father PW
1. He stated about marriage between Sachirani and the appellant but during his cross-examination he stated that he does not know as to whether Sachirani was married earlier or not. PW 1 claimed that he was intimated about the incident by the owner of a nearby line hotel of Gochihar by his motor cycle alone. He also stated that when he met his daughter in that night at Kaldighi hospital he did not find any of the accused persons there.
PW 2 stated that through one hotel owner of Gochrihar being accompanied by accused Sabita (appellant no. 3) they were informed about the tragic fate of his daughter. PW 2 also stated that at the morning hours she found accused Binodini (appellant no. 2) and thereafter accused Sushanta (appellant no. 1) at such hospital. It is evident in exhibit- 7 coupled with deposition of PW 16 that the victim Sachirani was admitted in hospital by appellant no. 3 describing the injury of the victim was caused due to suicidal burn.
The extract of the discussion made in the foregoing paragraphs is that PW 1, PW 2 and PW 18 suppressed the fact of Sachirani's previous marriage before marriage with appellant no. 1 and PW 1 tried to establish that after Sachirani's receiving burn injury the appellants had no role in her hospitalisation or treatment which has been proved by PW 2 as not true. Therefore, we are of the opinion that the evidence of PW 1, PW 2 and PW 18 cannot be considered as intrinsically reliable or inherently probable.
There is no eye-witness of any incident of torture or setting fire on Sachirani by the accused appellants. As it appears from the totality of the materials on record the prosecution relies on circumstantial evidence and the alleged statements of the victim Sachirani made in Gangarampur S.D. hospital on 27.2.2005 and in Balurghat Sadar Hospital on 02.03.2005. it is claimed that said statements of Sachirani are her multiple dying declaration.
Exhibit- 7 is the report of first examination of Sachirani by PW 16 in Gangarampur S.D. Hospital. As per said report the patient sustained superficial burn injury involving face, anterior aspect of chest and abdomen and both upper limbs. There is no whispering about smell of kerosene oil on her persons. The patient was admitted on 27.02.2005 for treatment. Exhibit- 14 speaks about approximate 30 % old burn injury of the patient as assessed in Balurghat Sadar Hospital on 02.03.2005. in exhibit- 15/3 also the extent of burn injury has been mentioned as 30 % approximately involving whole of front chest and abdomen, back lower part and face. Exhibit-15/3 is the card sent from Gangarampur S.D. Hospital to Balurghat District Hospital referring the patient Sachi Barman. In exhibit- 15/4 provisional clinical diagnosis was recorded as suicidal burn injury 40%. PW 17 held post mortem examination over the dead body of the victim and the post mortem report has been marked exhibit- 9. As per exhibit- 9 the cause of death in the opinion of PW 17 is due to consequences of burn injury which is ante-mortem in nature. During cross-examination PW 17 stated that he found 80 % burn injury after dissecting the dead body. However, it was not mentioned either in exhibit- 9 or in deposition of PW 17 as to whether the victim sustained suicidal or accidental or homicidal burn injuries. PW 15 as Executive Magistrate held inquest over the dead body of the victim and he stated that he found 70% burn.
The PW 19 seized partially burnt mat of date-leaves and partially burnt wearing apparels of the victim from the varandah of the house of appellant no. 1 and the victim. The seizure list was marked exhibit- 2/2 during trial. There is nothing in deposition of PW 19 or of witnesses of seizure or in exhibit- 2/2 that there was any smell of kerosene oil in the seized articles or any sign of using kerosene oil in the place of seizure which is the place of victim's receiving burn injuries. There is no report of chemical analysis of the partially burnt seized materials wherefrom we might have been able to find corroboration to the version of the victim as stated by the witnesses and claimed by prosecution as dying declaration of the victim stating that kerosene oil was poured/sprinkled on the persons of the victim before setting fire on her. Exhibit- 4 is the inquest report prepared by police officer of Balurghat police station. In that document it was recorded that appellant no. 1 and appellant no. 2 and others (not specifically mentioned the description of said others) set fire on the victim after pouring kerosene oil in the night of 26.02.2005 Saturday and they admitted the victim in hospital in that night and getting such information victim's father (PW 1) went to hospital at about 3:00 a.m. in that night as revealed on preliminary enquiry.
In 2002 SCC (Cri) 153 (Supra) at page - 160 the Hon'ble Supreme Court held, "True, the details of the accused persons need not be mentioned in Ext. P-5 or Ext. P-8 but in the inquest report, it is not unusual to note the gist of FIR or the cause of death as narrated by the witnesses". In exhibit- 4 of the case under our consideration there is no specific allegation against appellant no 3. There is also no allegation of torture on the victim by the appellants before the incident of victim's receiving burn injry. PW 18 was a witness in exhibit-4 which was prepared on 15.3.2005 after sixteen days of alleged conversation between PW 18 and the victim at Gangarampur S.D. hospital as claimed by PW 18. Since there is no reflection of any incident of assault on the victim by all accused persons due to her failure to bring money from her paternal house and about keeping her unfed by accused persons, the deposition of PW 18 relating to such allegation against appellants is treated as not corroborated by exhibit- 4. This circumstance indicates a doubt as to whether the victim stated anything at all to PW 18 at Gangarampur hospital.
Relating to dying declaration of the victim Sachirani Barman there are two recorded documents exhibit- 3 and exhibit- 15/2 which were recorded by PW 7 who was a medical officer of Gangarampur S.D. hospital on 27.02.2005 and by PW 20 who was a medical officer of Balurghat District Hospital on 02.03.2005 respectively. As per evidence of PW 7 and exhibit- 3, the victim stated that she had been given fire while she was sleeping at night and she did not notice anybody setting fire on her but she smelt kerosene like substance from her body. As per evidence of PW 20 and exhibit- 15/2, the victim stated that she had received burn injuries and the fire set by her husband in the previous Saturday night. These two declarations appear to us inconsistent. In the case of State of Punjab Vs. Parveen Kumar (Supra) the Hon'ble Supreme Court held, "While appreciating the credibility of the evidence produced before the court, the court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declaration giving two different versions, a serious doubt is created about the truthfulness of the dying declaration. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declaration. The two dying declaration, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tested. It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah V. State of Mysore and Khushal Rao V. State of Bombay".
We are of the view that the aforesaid principle is squarely applicable in this case under this appeal. In the instant case the truthfulness of dying declarations made by the victim before PW 7 or PW 20 is very much doubtful. It is pertinent to note that from the totality of evidence on record it cannot be said to be proved beyond reasonable doubt that the victim sustained homicidal burn injury as claimed by prosecution and not suicidal as claimed by the appellants. Either of these two possibilities equally cannot be ruled out and as such, according to law, the possibility which favours the accused appellants may be given preference in a criminal trial. In the instant case there was no mention either in exhibit- 3 or in exhibit- 15/2 that it was read over and explained to the victim. In paragraph - 13 in the decision reported in (2008) 1 SCC (Cri) 679 (Supra) the Hon'ble Supreme Court observed, "There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable".
In Amol Singh Vs. State of Madhya Pradesh (Supra) the Hon'ble Apex Court held, "Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declaration but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without corroboration. The statement should be consistent throughout".
In Samadhan Dhudaka Koli Vs. State of Maharashtra (Supra) the Hon'ble Apex Court quoted paragraph- 7 of the judgment in Mehiboobsab Abbasadi Nadaf Vs. State of Karnataka reported in (2007) 13 SCC 112 : (2009) 1 SCC (Cri) 287 : (2007) 9 Scale 473 as -
"7. Conviction can indisputably be based on a dying declaration. But before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully.
Consistency in the dying declaration is the
relevant factor for placing full reliance
thereupon. In this case, the deceased herself
had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied".
In the case under this appeal the victim stated before PW 7 that she did not notice anybody setting fire on her. She stated before PW 20 that the fire set by her husband. Said two declarations are contradictory and do not match one another. She did not say either before PW 7 or before PW 20 that the appellants no. 2 and 3 had any role in setting fire on her. Therefore, it is very much doubtful as to whether anyone of the three appellants actually set fire on the victim. Be it noted that the declaration of victim before PW 7 was earlier. She did not explain before PW 20 as to why she stated before PW 7 that she did not notice anybody setting fire on her. On careful scrutiny of the evidence in totality adduced by prosecution during trial, we do not find strong corroboration by any cogent reliable evidence to either of the said declarations. Since, the PW 1, PW 2, PW 3, PW 6 and PW 18 stated about their conversation with victim and victim's making different dying declarations at different tie in Gangarampur hospital when they met with her. Considering said aspect we cannot rule out the possibility of tutoring the victim or prompting her to make any particular statement before doctors and also we cannot rule out victim's making imaginary statements relating to cause of her burn injury.
In Lakhan Vs. State of Madhya Pradesh (Supra) the Supreme Court of India was pleased to discuss several decisions of the Apex Court in which question of reliability and acceptability of dying declaration was involved. In paragraph- 9 of that decision reported in 2010 (4) AICLR 341 it has been held :-
"This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution's version differs from the version given in the dying declaration, the said declaration cannot be acted upon (Vide :
Kushal Rao V. State of Bombay, AIR 1958 SC 22; Rasheed Beg & Ors. Vs. State of Madhya Pradesh, AIR 1974 SC 332; K.R. Reddy & Anr. V. The Public Prosecutor, AIR 1976 SC 1994; State of Maharashtra V. Krishnamurti Laxmipati Naidu, AIR 1981 Sc 617; Uka Ram V. State of Rajasthan (2001) 5 SCC 254 : (2001 (2) All India Criminal LR (SC) 308); Babulal & Ors. V. State of M.P., (2003) 12 SCC 490; Muthu Kutty & Anr. V. State, (2005) 9 SCC 113 :
(2005 (1) All India Criminal LR (SC) 773);
State of Rajasthan V. Wakterg, AIR 2007 SC 2020 : (2007 (3) All India Criminal LR (SC) 633); and Sharda V. State of Rajasthan, (2010) 2 SCC 85 : (2010 (2) All India Criminal LR (SC) 2821)".
In State of Rajasthan Vs. Shravan Ram and Another (Supra) also almost similar view has been expressed by the Hon'ble Supreme Court of India.
In the instant case, PW 1, PW 2, PW 6 and PW 18 stated that the victim told that all accused persons had set fire on her pouring kerosene oil, PW 3 and PW 20 stated that the victim told that her husband set fire on her. PW 3 and PW 20 did not state that the victim told about pouring kerosene oil on her persons. PW 7 stated that the victim told him that she was sleeping and she did not notice anybody setting fire on her. Such contradictory versions of the victim, even if believed as given by her, do not impress upon us to believe that the victim gave consistent reliable and truthful account of the incidents alleged by prosecution against the appellants.
During trial, prosecution did not examine any witness who saw the appellant no. 1 present at the place of occurrence and the appellant no. 1 also did not adduce any evidence to prove his alibi that he went to a function in different village Raghabpur. According to the facts and circumstances it was the initial burden on prosecution to prove that the appellant no. 1, being the husband of the victim remained present at the time of victim's receiving burn injury in their house. Had there been successful discharge of said initial burden of prosecution the appellant no. 1 would have been liable to discharge his burden under Section 106 of the Evidence Act to prove the actual cause of victim's receiving burn injury on her person in the fateful night of 27.2.2005. Be it noted that it may be presumed that appellant no. 1 remained present in his house in the night of 27.02.2005 but such presumption cannot take place of proof in the eye of law.
Having considered the facts, circumstances, evidence on record and relevant provisions and principles of law we find and hold that the prosecution failed to prove its case beyond reasonable doubt. Findings of learned Additional Sessions Judge in the impugned judgment contrary to our findings made in this judgment are discarded. As a result, this appeal is allowed. The impugned judgment of conviction and sentence of the accused appellant is set aside. All the three appellants are found not guilty of the charges levelled against them. They are set at liberty. Let them be released from custody forthwith in connection with this case if their detention is not necessary in any other case.
A copy of this judgment alongwith LCR be sent to the trial Court forthwith for information and necessary action.
Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously in compliance of usual legal formalities.
I agree.
(SANKAR ACHARYYA, J.,) (ANIRUDDHA BOSE, J.,)