Calcutta High Court (Appellete Side)
Smt. Nirmala Saha & Anr vs The State Of West Bengal on 18 April, 2016
Author: R. K. Bag
Bench: Ranjit Kumar Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
Hon'ble Justice Ranjit Kumar Bag,
C.R.A. No. 364 Of 2011
Smt. Nirmala Saha & Anr.
V.
The State of West Bengal
For the Appellants : Md. Aslam Khan,
For the State : Mr. Krishan Ray,
Heard on : March 31, 2016
Judgment on : April 18, 2016
R. K. Bag, J.
This appeal arises out of judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, Fast Track, 2nd Court, Dinhata, Cooch Behar in Sessions Trial No.2(4) of 2007 arising out of Sessions Case No.96 of 2007, by which Learned Judge of the trial court sentenced both the appellants to suffer rigorous imprisonment for three years and to pay fine of Rs.2000/- each, in default to suffer imprisonment for six months more for the offence punishable under Section 498A of the Indian Penal Code and rigorous imprisonment for seven years and to pay fine of Rs.5000/- each, in default to suffer imprisonment for one year more for the offence punishable under Section 306 of the Indian Penal Code.
2. The backdrop of conviction and sentence of the appellants is as follows: On November 22, 2005 the de facto complainant - Namita Saha filed a written complaint before the Inspector-in-charge of Dinhata Police Station alleging abetment of suicide of her daughter Shilpi Saha by the appellants. It is further alleged in the written complaint that Shilpi aged about 30 years was married to the appellant Bablu Saha about 5 years ago and one child was born from the said wedlock. The contents of the written complaint disclose that both the appellants being the husband and mother-in-law of the deceased Shilpi used to inflict physical and mental torture on Shilpi in order to create pressure on her for bringing money from the house of her parents. It is also alleged in the written complaint that on November 21, 2005 Shilpi committed suicide in her matrimonial home as she could not bear physical and mental torture inflicted on her by both the appellants. The written complaint is lodged after the death of Shilpi at Dinhata Sub-Divisional Hospital on November 22, 2005. Dinhata Police Station Case No.304 of 2005 dated November 22, 2005 under Sections 498A/304B of the Indian Penal Code was registered on the basis of the written complaint filed by Namita Saha, mother of the deceased Shilpi.
3. The police investigated the above criminal case and submitted chargesheet against the appellants on the allegation of committing offences punishable under Sections 498A/304B of the Indian Penal Code. The trial court also framed charge against the appellants for the offence punishable under Sections 498A/304B of the Indian Penal Code. On conclusion of trial Learned Judge of the trial court convicted both the appellants for the offences punishable under Sections 498A/306 of the Indian Penal Code and sentenced them to suffer term imprisonment and fine for both the offences with direction that the appellants will serve the sentence for both the offences concurrently and the period of imprisonment undergone by them as undertrial prisoners will be set off. The appellants have preferred appeal against the said judgment of conviction and sentence passed by the trial court.
4. Md. Aslam Khan, Learned Counsel for the appellants contends that the incident of torture alleged to be inflicted on the deceased Shilpi by the appellants have not been proved by examining independent witnesses. He further submits that the appellants were not in good terms with one Malati Paul (PW7) who was the wife of a tenant of the appellants. Mr. Khan argues that the dying declaration of the deceased (Exhibit-2) was recorded by one doctor who did not treat her in the hospital and the said doctor did not give any certificate about the mental alertness of the deceased Shilpi before recording the statement. He further argues that the dying declaration of the deceased Shilpi should not be relied upon in the absence of certificate of the doctor with regard to mental fitness of the deceased at the time of recording of the statement, particularly when the deceased suffered 80% burn injuries in the morning on the date of recording of the statement. According to Mr. Khan, the deceased Shilpi was not happy with the marriage and as such she committed suicide for which the appellants cannot be made liable for abetment of the said suicide.
5. Mr. Krishan Ray, Learned Counsel for the State contends that the prosecution has examined independent witnesses like the tenants in the house of the appellants and the neighbours of the appellants who have consistently stated how the deceased Shilpi was subjected to creulty by the appellants during her stay in the matrimonial home for about 5 years after the marriage. He further submits that the doctor who recorded the dying declaration of the deceased Shilpi has stated on oath before the Court that the deceased Shilpi was mentally fit and alert at the time of giving statement in the hospital and as such the said dying declaration can be relied on as voluntary and truthful to base the conviction of the appellants. He has cited the decision of the Supreme Court in "Rambai V. State of Chhattisgarh" reported in (2002) 8 SCC 83 in support of his above contention. Mr. Ray also submits that the deceased Shilpi committed suicide within seven years of her marriage with the appellant Bablu Saha and the prosecution has established by giving evidence that the deceased Shilpi was subjected to cruelty by both the appellants for demand of more money and as such the Court can hold the appellants liable for abetment of suicide of the deceased Shilpi by invoking the provision of Section 113A of the Indian Evidence Act. The gist of submission of Mr. Ray is that the appellants are liable to serve the remaining period of their sentence imposed by the trial court
6. Before dealing with the rival contentions made by Learned Counsel representing both parties, I would like to evaluate the evidence adduced before the trial court. The de facto complaint Namita Saha (PW12) happens to be the mother of the deceased Shilpi Saha. One Manmohan Saha (PW8) negotiated the marriage between the deceased Shilpi Saha and the appellant Bablu Saha about 5 years before the death of Shilpi. It has been established from the evidence of Namita Saha (PW12) and Manmohan Saha (PW8) that Shilpi was married to the appellant Bablu Saha about 5 years before the death of Shilpi. It has also been established from the evidence of the above witnesses that one female child was born from the wedlock between Shilpi and the appellant Bablu Saha. Namita Saha lodged the written complaint before Inspector-in-charge of Dinhata Police Station which was registered as FIR (Exhibit-3). Namita Saha (PW12) has stated both in evidence and in written complaint (Exhibit-3) how Shilpi was physically assaulted and mentally tortured by her husband and mother-in-law in order to compel her to bring money from the house of her parents. It is evident from the evidence of Namita Saha (PW12) that Shilpi disclosed to her mother that she would have no other alternative than to commit suicide for the continuous torture inflicted on her by both the appellants being the husband and mother-in-law respectively. The above aspect of evidence of Namita Saha (PW12) is corroborated by her another daughter Sibani Saha (PW13) and one Biswajit Saha (PW14), who happens to be the husband of Sibani Saha. The consistent evidence of both PW13 and PW14 is that both the appellants used to inflict physical and mental torture on Shilpi in the matrimonial home in order to coerce her to bring money from the house of her parents. It is the consistent evidence of the above three witnesses that on November 21, 2005 in the night they got information that Shilpi had set herself on fire and on November 22, 2005 they went to the house of the appellants and thereafter rushed to the hospital and found Shilpi dead.
7. One Nikhil Paul (PW1) was a tenant in the house of the appellants. He has stated that on November 21, 2005 Shilpi had set herself on fire and died in the hospital on the next day. He heard about the quarrel between the appellant Bablu and the deceased Shilpi due to poverty in the family. One Malati Paul (PW7), wife of the tenant Nikhil Paul, has given vivid description of the incident which took place in the matrimonial home of Shilpi on November 21, 2005 at about 8:30 a.m. to 8:45 a.m. It is elicited from the evidence of Malati Paul (PW7) that on the date of the incident both the husband and mother-in-law of Shilpi physically assaulted her. She has further stated that the mother-in-law of Shilpi assaulted her with a broom and instigated the appellant Bablu to beat Shilpi in the manner of beating a snake. She has also stated that when Shilpi wanted to committ suicide for such torture, the mother-in-law of Shilpi asked her to do so. She has also narrated in evidence that when Shilpi was beaten by both the appellants, she rushed to the kitchen and poured kerosene oil on her body and then her husband Bablu Saha went inside the kitchen, snatched the bottle of kerosene from the hand of Shilpi and gave a slap on her cheek. She states that the mother-in- law of Shilpi brought one lighting lamp from the house of her neighbour Anjali Mazumdar and started quarrel with Shilpi and thereafter Shilpi took away the lamp from the hand of her mother-in- law and set herself on fire. I do not find any cogent reason to disbelieve the evidence of Malati Paul (PW7), particularly when Anjali Mazumdar (PW4) has stated in evidence that the mother-in-law of Shilpi went to her house for lighting the lamp and took away the burning lamp to her own house. I am inclined to believe the above aspect of evidence of Anjali Mazumdar (PW4), though she was permitted to be cross-examined by the prosecution when she was declared hostile by the Court.
8. One Rajib Mahanta (PW3) was another tenant in the house of the appellants. This witness was also declared as hostile and permitted to be cross-examined by the prosecution. This witness has no direct knowledge about the incident and he has denied his earlier statement given before the Investigating Officer and as such he is not found to be reliable witness by the Court. One Soma Mahanta (PW2), the wife of the tenant Rajib Mahanta, has stated in evidence that on the date of the incident she arrived at the scene of crime while Shilpi was burning. On an analysis of the above evidence of the prosecution witnesses, I find that both the appellants physically assaulted Shilpi on November 21, 2005 in the morning at about 8:30 a.m. to 8:45 a.m. and thereby Shilpi committed suicide by setting herself on fire and sustained burn injuries all over the body.
9. It appears from the record of treatment of Shilpi Saha in the Sub- Divisional Hospital at Dinhata (Exhibit-7 and Exhibit-8) that on November 21, 2005 at about 9:15 a.m. Shilpi Saha was admitted to the hospital under Dr. Snehansu Mandal (PW17). It is elicited from the evidence of Dr. Snehansu Mandal (PW17) that she treated Shilpi in the hospital when she was admitted with 70% burn injury. He has also stated in evidence that one Dr. H. Poddar admitted Shilpi in the emergency department of the hospital. It appears from oral evidence of Dr. Snehansu Mandal (PW17) and from the record of treatment of Shilpi in the hospital (Exhibit-7 and Exhibit-8) that Shilpi died in the hospital on November 22, 2005 at about 12:10 p.m. Sub-Inspector Prabir Biswas (PW18) has stated in evidence that on November 21, 2005 one Sankar Das, Ward Master of Dinhata Sub-Divisional Hospital informed the police station of the fact of admission of a patient with burn injury and requested for recording dying declaration of the victim. It transpires from the evidence of Sub- Inspector Prabir Biswas (PW18) and from the evidence of Assistant Sub-Inspector Prabir Kumar Das (PW20) that the said ASI Prabir Kumar Das went to the hospital on instruction of Inspector-in-charge of Dinhata Police Station for making arrangement of recording dying declaration of Shilpi Saha in the hospital. Dr. Pranab Kumar Dey (PW5) recorded the dying declaration of Shilpi Saha in the hospital on November 21, 2005 at about 1:20 p.m. Dr. Pranab Kumar Dey (PW5) has recorded the statement of Shilpi Saha in presence of ASI P. K. Das (PW20), Nurse - Sarmila Sarkar (PW9) and Nurse - Maya Dey (PW10). The fact of recording of statement of Shilpi Saha by Dr. Pranab Kumar Dey (PW5) is corroborated by PW9 (Sarmila Sarkar), PW10 (Maya Dey), PW20 (ASI P. K. Das) who have identified their signatures on the said statement of Shilpi Saha (Exhibit-2). Dr. Pranab Kumar Dey (PW5) has specifically stated in evidence that Shilpi was conscious and fit for giving her statement. This witness has stated during cross-examination that he recorded the statement of Shilpi Saha as per request of police officers of local police station. It is true that the dying declaration was not recorded in question and answer form, but the doctor who recorded the statement has stated on oath before the Court that Shilpi was mentally alert and fit to give the statement. The dying declaration of Shilpi (Exhibit-2) indicates that Shilpi poured kerosene oil on her body and set herself on fire with the help of a lighting lamp, as she could not bear the torture inflicted on her by her husband and mother-in-law. So, the deceased Shilpi has specifically stated in her statement before the death that she wanted to commit suicide by setting herself on fire, because of torture inflicted on her by her husband and mother-in-law who are the appellants in this case.
10. Now, the question for consideration for the Court is whether the Court can rely on the dying declaration of Shilpi Saha as voluntary and truthful or the same will be discarded as the certificate of the doctor about mental fitness of Shilpi is not obtained on the said statement as contended by Learned Counsel for the appellants. In "Rambai V. State of Chhattisgarh" reported in (2002) 8 SCC 83 one Dr. Ashoke Sharma who did not treat the deceased but being the doctor on duty came and examined the deceased and recorded in the dying declaration itself with regard to the capacity of the deceased to make the dying declaration. In the instant case, Dr. Pranab Kumar Dey who recorded the dying declaration of Shilpi did not record in the dying declaration itself about the capacity of Shilpi to make the statement and as such the facts of the present case are distinguisable from the facts of "Rambai V. State of Chhattisgarh" (supra) and as such the ratio of the said report cannot be made applicable in the facts of the present case.
11. In "Koli Chunilal Savji V. State of Gujarat" reported in AIR 1999 SC 3695 the Magistrate who recorded the dying declaration ascertained about the fit state of mind of the deceased from the doctor, but the certificate of the doctor about the mental alertness of the deceased was not obtained by the Magistrate at the time of recording of the dying declaration. The Supreme Court accepted this dying declaration as voluntary and truthful on the ground that this dying declaration is consistent with the dying declaration recorded by the police for registration of FIR. The view of three Judges' Bench of the Supreme Court in "Koli Chunilal Savji V. State of Gujarat" (supra) that the dying declaration recorded without obtaining certificate of the doctor about the state of mind of the deceased, cannot be discarded, if there is evidence on record to indicate that the deceased was conscious and mentally alert to give the statement, was upheld as good law by five Judges' Bench of the Supreme Court in "Laxman V. State of Maharashtra" reported in AIR 2002 SC 2973. It is relevant to quote some portion of paragraph 3 of the judgment in "Laxman V. State of Maharashtra" (supra), which is as follows:
"3. ..... A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
12. The view of five Judges' Bench of the Supreme Court in "Laxman V. State of Maharashtra" (supra) is that the certification by the doctor about the state of mind of the deceased for recording dying declaration is a rule of caution and as such the Court can rely on the dying declaration without any certificate from the doctor about the mental fitness of the deceased, provided the Court can ascertain from the evidence on record that the dying declaration is voluntary and truthful and the deceased was in a fit mental state to give the said statement. In the present case, the deceased Shilpi was admitted to the Sub-Divisional Hospital at Dinhata on November 21, 2005 at 9:15 a.m. with 70% burn injury. It has been established from the evidence on record that Shilpi died in the hospital on November 22, 2005 at 12:10 p.m. Dr. Pranab Kumar Dey (PW5) who was summoned as Medical Officer on duty to record the statement of Shilpi, has stated on oath that Shilpi was conscious and fit for giving dying declaration. The said dying declaration was recorded in presence of one Assistant Sub-Inspector of Police and two members of nursing staff who have corroborated the evidence of the doctor and have signed on the said dying declaration as witnesses. There is nothing on record to indicate that the deceased Shilpi was unconscious or was not mentally fit and alert to give the statement at 1:20 p.m. on the date of her admission in the hospital on November 21, 2005. The evidence on record unerringly points out that the deceased Shilpi was mentally fit and alert to give the dying declaration before Dr. Pranab Kumar Dey (PW5). By following the decision of five Judges' Bench of the Supreme Court in "Laxman V. State of Maharashtra" (supra), I am inclined to rely on the dying declaration of Shilpi (Exhibit-2) recorded by Dr. Pranab Kumar Dey (PW5), which is found to be voluntary and truthful.
13. Sub-Inspector Prabir Biswas (PW18) conducted inquest on the dead body of Shilpi and the inquest report is marked as Exhibit-4/3. Similarly, one Binoy Sikdar (PW19), the Executive Magistrate also conducted inquest on the dead body of Shilpi, as Shilpi died within seven years of her marriage. The said report of inquest prepared by PW19 is marked as Exhibit-13. Both the reports of inquest indicate that Shilpi died of burn injuries sustained all over the body. The Constable Ranjit Bhowmick (PW16) identified the dead body of Shilpi Saha before Dr. Malay Chakrabarty (PW15) who conducted post mortem examination on the dead body of Shilpi. It appears from the evidence of Dr. Malay Chakrabarty (PW15) and post mortem report (Exhibit-5) that the cause of death of Shilpi is effect of burn injury sustained all over the body, which was ante mortem in nature. It has, thus, been established from the above evidence that Shilpi died of burn injuries sustained all over the body. I have already observed that Shilpi had set herself on fire after pouring kerosene oil on her body in order to commit suicide to get rid of physical and mental torture inflicted on her by both the appellants who happen to be her husband and mother-in-law respectively.
14. In view of the observation made by me hereinabove, I can safely hold that Shilpi was subjected to cruelty within the meaning of Section 498A of the Indian Penal Code by the appellant Bablu Saha and the appellant Nirmala Saha who happen to be the husband and mother- in-law of the deceased Shilpi. So, both the appellants can be held guilty of the charge under Section 498A of the Indian Penal Code. The trial court convicted both the appellants for the offence punishable under Section 306 of the Indian Penal Code, though the trial court framed charge against both the appellants for the offence punishable under Section 304B of the Indian Penal Code. The Legislature has provided in Section 221 of the Code of Criminal Procedure that where it is doubtful which of several offences will be constituted from the facts, the accused may be charged with all or any of such offences by the trial court, but such accused may be convicted for a different offence for which he was not charged, if the said offence is made out from the evidence on record. In the instant case, charge was framed against the appellants for the offence punishable under Section 304B of the Indian Penal Code which has not been established from the evidence on record. By applying the provisions of Section 221 of the Code of Criminal Procedure, the appellants can be convicted for the offence punishable under Section 306 of the Indian Penal Code, if the said offence is established from the evidence on record. I have already observed that it has been established from the evidence on record that the deceased Shilpi was subjected to cruelty by both the appellants and she committed suicide within seven years of her marriage with the appellant Bablu Saha. Now, the question to be considered by the Court is whether commission of suicide of the deceased Shilpi was abetted by both the appellants in order to make them liable for the offence punishable under Section 306 of the Indian Penal Code. Section 113A was incorporated in the Indian Evidence Act, 1872 by way of amendment in 1983 in order to draw presumption of abetment of suicide by a married woman. It is relevant to quote the provision of Section 113A of the Indian Evidence Act, which is as follows:
"113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)."
15. On perusal of the above provision of law, it appears that the Court may presume that the appellants have abetted commission of suicide of the deceased Shilpi, as she was subjected to cruelty by the appellants and she committed suicide within seven years of her marriage. The circumstances of the present case lead me to draw presumption under Section 113A of the Indian Evidence Act in order to hold the appellants guilty of the charge under Section 306 of the Indian Penal Code. In view of my above findings, I do not find any illegality in the judgment and order of conviction and sentence passed by Learned Judge of the trial court.
16. As a result, the appeal is dismissed. The judgment and order of conviction and sentence passed by Learned Additional Sessions Judge, Fast Track, 2nd Court, Dinhata, Cooch Behar in Sessions Trial No.2(4) of 2007 arising out of Sessions Case No.96 of 2007 is hereby affirmed. The appellants who are serving the sentence in the correctional home, are directed to serve the remaining period of the sentence.
Let a copy of this judgment and order be sent down to the Learned Court below along with Lower Court Record for favour of information and necessary action.
The urgent photostat certified copy of the judgment and order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
(R. K. Bag, J.)