Calcutta High Court (Appellete Side)
Manija Begum And Ors vs The State Of West Bengal on 14 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
and
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 761 of 2014
Manija Begum and Ors.
-vs-
The State of West Bengal
For the appellants : Mr. Dipanjan Chatterjee
For the State : Mr. Neguive Ahemd,
Ms. Z. N. Khan,
Ms. Trina Mitra
Heard on : 14.08.2018
Judgment on : 14.08.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 20.11.2014 and 21.11.2014 passed by the learned Additional Sessions Judge, Amta, Howrah, convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for six months more.
Prosecution case as alleged against the appellants and other accused persons is to the effect that the victim Sabina Begum was married to Sk. Moidul on 17.07.2010 according to Muslim Rites and Customs. At the time of marriage sufficient amount of money, two bhories of gold ornaments and other presentations were given. The victim was subjected to mental and physical torture over further demand of Rs.50,000/- by the appellants and other in-laws including her husband and she informed of such torture to her mother Najima Begum, P.W.3. From the wedlock a female child was born. On 13.10.2012 at 5.30 PM Najima came to know that her son-in-law and other in-laws including the appellants i.e. her mother-in-law and sisters-in-law have set her on fire. She rushed to the matrimonial home where she found her daughter with burn injuries. On the way to the hospital, her daughter stated that the appellants and other accused persons had set her on fire. She was initially taken to Amta Rural Hospital and in the hospital she made a dying declaration which was recorded by P.W.10, Dr. Monindra Nath Bera, stating that the appellant no. 1, her mother-in- law, Manija Begum and appellants no. 2 and 3, Samu Begum and Hanufa Begum, her sisters-in-law, had set her on fire. Subsequently she was shifted to Howrah District Hospital where she made similar dying declaration before P.W.8 and ultimately expired on 17.10.2012. In the meantime, on 14.10.2012, her mother-in-law, P.W.3, lodged written complaint resulting in registration of Amta Police Station Case No. 303 of 2012 dated 14.10.2012 under Sections 498A/326/34 of the Indian Penal Code. After her death Sections 302/34 of the Indian Penal Code was added to the array of offences. In conclusion of investigation charge-sheet was filed against the appellants and other accused persons including the husband of the victim under Sections 498A/326/34 of the Indian Penal Code and the case was committed to the Court of the Additional Sessions Judge, Amta, Howrah for trial. Charges were framed against the appellants and other accused persons under Sections 498A/302/34 of the Indian Penal Code and they pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 11 witnesses and exhibited a number of documents including the dying declarations of the victim. In conclusion of trial, the learned Trial Judge by judgment and order dated 20.11.2014 and 21.11.2014 convicted and sentenced the appellants, as aforesaid. The appellants, however, were acquitted of the charge under Sections 498A/34 of the Indian Penal Code and other accused persons were acquitted of all the charges levelled against them.
Mr. Chatterjee, learned Counsel appearing for the appellants, submitted that the prosecution witnesses including the mother of the victim P.W.3 has not supported the prosecution case. P.W.3 deposed that she was unaware of the contents of the first information report and the victim had to be brought out from her room after breaking the door. These circumstances improbabilise a case of homicidal burn. He criticized the dying declarations recorded by P.W.8 and P.W.10 and submitted that there is no endorsement that the patient was conscious and fit to make the dying declarations. Declarations were written in English language although it was purportedly made in Bengali. No L.T.I. of the victim was taken. Nurse, in whose presence, the dying declaration was recorded at Howrah District Hospital has not been examined. There is no reference to the dying declarations recorded by P.W.8 and P.W.10 in the first information report. Hence, it is unsafe to rely on the said dying declarations to come to a finding against the appellants.
Learned Counsel appearing for the State submits although P.W.3, for reasons best known to her, has not supported the prosecution case but she admitted that the first information report was lodged before the police station by her. Dying declaration was recorded at the earliest at Amta Rural Hospital by P.W.10 which unequivocally implicates the appellants. Subsequently, victim made another declaration before P.W.8 at Howrah District Hospital which corroborates the earlier dying declaration. Nothing has come on record to show that P.W.8 and P.W.10, medical personnel at two different hospitals, were inimical to the appellants and had falsely implicated him. On the other hand, dying declarations are clear, cogent and were recorded by medical officers who deposed that the victim was conscious and fit in state of mind to make such declarations. These circumstances show that the dying declarations are authentic, reliable and rule out any possibility of false implication. Hence the appeal is liable to be dismissed.
I have considered the rival submissions of the learned Counsel appearing for the parties in the light of the evidence on record. Prosecution case entirely hinges on to her dying declarations recorded by P.W.10, Dr. Monindra Nath Bera at Amta Rural Hospital and thereafter by P.W.8, Dr. Jagannath Mukherjee at Howrah District Hospital.
P.W.10, Dr. Monindra Nath Bera, deposed that on 13.10.2012 he examined patient Sabina Begum with a history of homicidal burns. As per statement of the patient, she stated that her mother-in-law Manija Begum and sisters-in-law viz. Samu Begum and Hanufa Begum had set her on fire. On clinical examination he assessed 50% burn injury on the body of the victim. He referred the victim to Uluberia S.D. Hospital for better treatment. He proved the emergency treatment card marked as Exbt.-9. Sk. Soharab Ali, father-in-law of the victim was also treated on 15.10.2012 with the history of accidental burn on 13.10.2012. He proved the emergency ticket of Sk. Soharab Ali marked as Exbt.-10.
In cross-examination he admitted that Sk. Soharab Ali was also attended on 14.10.2012. Signature of the patient is not in the treatment card but was recorded in the register.
P.W.8, Dr. Jagannath Mukherjee, is the doctor who recorded the dying declaration of the victim at Howrah District Hospital. He deposed that on 13.10.2012 patient Sabina Begum made a dying declaration before him which was reduced into writing. He proved the treatment sheet of the victim marked as Exbt.-7. The staff nurse of the hospital named Aparna Koppmotu was present. Patient sustained 70% burn injuries. He also proved the Referral Card and Emergency Card which were marked as Exbts.-7/1 and 7/2 respectively. To a query, he stated that patient was in a conscious state and was in a condition to speak on 13.10.2012.
In cross-examination, he admitted that no certificate was endorsed that the patient was in a fit state of mind and able to speak. Emergency ticket disclosed 80% of burn injury. He did not take any thumb impression or signature of the patient. Statement of the patient was not recorded in question answer form. It was recorded in English language although the patient made a statement in Bengali language. He stated that the time has been mentioned at the bottom of the signature where medicine has been prescribed in the said treatment sheet.
P.W.9, Dr. Joydipta Chattopadhyay, the post mortem doctor was examined in the instant case. He deposed that the victim had died due to septic absorption following burn injuries, ante mortem in nature. He proved the post mortem report marked as Exbt.-8.
In cross-examination, he stated that he did not find any smell of kerosene oil and soot particles.
Although the other prosecution witnesses including the mother of the victim have not supported the prosecution case, evidence of the aforesaid medical personnel unequivocally show that the victim, who had suffered burn injuries at the matrimonial home, upon being shifted to Amta Rural Hospital immediately after the incident, stated that the appellants had set her on fire. P.W.10 examined her at the hospital and recorded her statement. P.W.10 referred the patient to Howrah District Hospital. She was shifted to the said hospital where P.W.8 examined her on the self-same day and recorded another dying declaration. It is trite law dying declarations, if unblemished, can be the sole basis of conviction. Learned Counsel appearing for the appellants has severely attacked the aforesaid dying declarations on the premise that there is no thumb impression of the victim and the dying declarations were not recorded in question answer form. He also submitted that no certificate had been recorded by the doctors that the victim was in a fit state make the statement. It is also submitted that the nurse who was present at the time of recording dying declaration at Howrah District Hospital had not been examined and the dying declaration was recorded in English while it was made in Bengali.
I have examined the dying declarations in the light of the aforesaid objections raised on behalf of the appellants. P.W.10 examined the victim immediately after the incident when she had been rushed to Amta Rural Hospital. He deposed that the thumb impression of the victim was recorded in the registration sheet. It is nobody's case that there was a significant time gap between the registration of the victim as a patient in the said hospital and her examination by P.W.10 soon thereafter. Evidence of P.W.10 leaves no doubt in one's mind that the medical personnel had truthfully and honestly recorded the statement of the patient as to the cause of injury and in the light of her statement noted that the victim had suffered "homicidal burns". Soon thereafter the victim was shifted to Howrah S.D. Hospital. She was treated by P.W.8 who again recorded her statement which substantially corroborates the earlier dying declaration recorded by P.W.10. The aforesaid medical personnel are independent professionals and are in no way inimical to the interest of the appellant. On the other hand, it appears that P.W.3, the mother of the victim, had been won over and she made a desperate attempt to wriggle out from the F.I.R. lodged by her by claiming that she was not aware of its contents. Her deposition that the victim had been brought out from the room after breaking the door is not corroborated by any other witness. Admittedly, she was not present at the place of occurrence and had subsequently arrived at the spot after being informed of the incident. Hence, I do not give credence to the aforesaid version of P.W.3, a hostile witness, regarding the incident. Clear and unequivocal deposition of the medical personnel in Court that the victim was conscious and in a fit state of mind make the dying declarations and that the declarations were duly recorded by them in treatment sheets at both the medical institutions in ordinary course of their official duties inspire confidence and render the dying declarations wholly reliable.
In the light of the aforesaid discussion, I hold that the victim was conscious and in a fit state of mind when the dying declarations were made to P.W.s 10 and 8 at Amta Rural Hospital and Howrah District Hospital respectively. P.W.s 10 and 8 are medical personnel who are the best witnesses with regard to the consciousness and the capacity of the victim to make the said declarations and had duly recorded them in the ordinary course of discharge of their official duties. They have withstood the test of cross-examination and hence, I am of the opinion that there is no infirmity in the procedure in which the dying declarations were recorded. The contents of the dying declarations are corroborative of one another and clearly implicate the appellants as the persons who poured kerosene oil on the victim and set her on fire. Reference to the cross-examination of P.W.3 with regard to circumstances which improbabilise the dying declarations also do not hold water as P.W.3 was not present at the place of occurrence when the incident occurred. Absence of smell of kerosene oil as noted by the post-mortem doctor (P.W.9) is of little consequence as the victim had survived for five days before her death and post-mortem examination.
In the light of the aforesaid discussion, I am of the opinion that the conviction of the appellants may be safely founded on the clear, unequivocal and truthful dying declarations of the victim recorded by the medical personnel, as aforesaid.
Conviction and sentence of appellants are accordingly, upheld. The appeal is dismissed.
The period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) sdas/akd&PA