Calcutta High Court
Sadhan Dutta And Anr. vs The State Of West Bengal on 22 February, 2005
Equivalent citations: (2005)2CALLT321(HC), II(2005)DMC686
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT A.K. Basu, J.
1. In Sessions Trial No. 3 of March, 1991 corresponding to Sessions Case No. 6 of December, 1990 before the learned Sessions Judge Bankura, five persons namely Sadhan Dutta, Smt. Radharani Dutta, Nayan Dutta, Namita Dutta and Manju Dutta faced the trial under Sections 498(A) and 302 of the Indian Penal Code. The learned Sessions Judge by His judgment dated 31st July, 1995 held Sadhan Dutta and Radharani Dutta guilty under Sections 498(A) and 302 of the IPC and while Radharani Dutta was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 100/-in default, rigorous imprisonment for 10 days, Sadhan Dutta was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/- in default, rigorous imprisonment for one month. No separate sentence was passed as regards the offence under Section 498(A) IPC against any of the convicted persons.
2. At the time of hearing of this appeal it has been submitted from the Bar that Radharani Dutta who was since released on bail after admission of the appeal has expired during pendency of this appeal.
3. The prosecution case giving birth to the Sessions Trial related to a written complaint lodged by one Subhas Chandra Sen on 28th May, 1989. Mr. Sen in his written complaint alleged that since marriage of his niece Sarbani with Sadhan Dutta, Sarbani was subjected to continuous physical torture in the hand of the inmates of the matrimonial home for pressurising said Sarbani to bring money from her parents and relatives. Mr. Sen alleged that on 27th May, 1989 Sarbani was assaulted by the members of her father-in-law's family and to save herself she came on the road and ultimately she was brought to the house of Mr. Sen in unconscious stage. Sarbani after regaining her sense informed in presence of local people that Sadhan Dutta, his mother and other members of the family tried to kill her. Sarbani under the advise of the local people on the same date submitted a written complaint before 'Bankura Mahila Samity'.
4. It was the allegation of Mr. Sen that on 28th May, 1989 at about 9.30 A.M. he got information that Sarbani caught fire in the house of Sadhan Dutta and she was shifted to Bankura hospital in a precarious condition. It is the further allegation of Mr. Sen that Sarbani at the hospital disclosed that the people of her father-in-law's house forcibly poured kerosene oil on her body and set fire.
5. On the basis of the written complaint of Mr. Sen, the case was started and/after completion of investigation, charge sheet was submitted under Sections 498(A) and 302 of the IPC.
6. Before the learned Sessions Judge the prosecution side examined 23 witnesses including the FIR maker, one daughter of Sarbani and Sadhan Dutta, two doctors and the investigating officer.
7. The learned Sessions Judge, after considering the entire evidence on record and after hearing submissions of both the prosecution and the defence, came to the conclusion that there was ample evidence to substantiate the prosecution case against Sadhan Dutta and his mother Radharani Dutta regarding the torture and assault on Sarbani and in this regard the learned Judge placed much reliance on the FIR and also on the deposition of PW 1 Arabinda Dutta, PW 9 Durgadas Mallick, PW 11 Jayanta Das and exhibit 4, a copy of the application of Sarbani Dutta submitted before 'Bankura Mahila Samity' during her lifetime.
8. As Sarbani succumbed to her burn injuries Sadhan Dutta, his mother Radharani Dutta and other members of the family also faced the charge under Section 302 of the IPC. The learned Judge, while considering this charge brought against the accused persons, placed his reliance on the deposition of daughter of Sadhan Dutta and Sarbani Dutta PW 20 Nabanita Dutta and also the circumstantial evidence. The learned Judge opined on examination of the post mortem report and the deposition of doctor J.N. Dey PW 14 along with the deposition of PW 1, PW 9, PW 11 and PW 15 that Sarbani died a homicidal death and the learned Judge after being satisfied with the statement of Nabanita Dutta, a child witness, conclusively held that Sadhan Dutta and his mother Radharani Dutta were responsible for the homicidal death of Sarbani. Thus, the learned Judge although did not place any reliance on the dying declaration of Sarbani as disclosed by PW 15 who lodged the FIR and doctor Moni Mohan Sil PW 22, found no difficulty to hold both Sadhan and Radharani guilty of the offence under Section 302 IPC on the basis of deposition of PW 20 Nabanita Dutta.
9. Appearing in support of the present appeal, Mr. Chatterjee submits after analysing the relevant prosecution evidence that it has come from the statement of prosecution witnesses that economic condition of Sadhan Dutta was far from satisfactory and in fact, Sadhan Dutta was an unemployed man and for his unemployment Sarbani had to face acute financial distress in managing her household affair and this was the probable cause of her suicidal death. Mr. Chatterjee submits that it was not possible scientifically to assert on dissection of the dead body of Sarbani whether her death was suicidal or homicidal and hence, the learned Judge was not justified in drawing a conclusion that Sarbani died a homicidal death.
10. Mr. Chatterjee contends that there is no satisfactory evidence from the side of the prosecution to support the prosecution allegation that Sarbani was subjected to any physical torture and it has come from the evidence of prosecution that Sarbani herself solicited financial help to support her family and hence, there is no legal basis behind the finding of the learned Judge that Sadhan Dutta and his mother assaulted and tortured Sarbani on demand of dowry.
11. Mr. Chatterjee submits that the learned Judge himself did not place any reliance on the alleged dying declaration of Sarbani given before PW 15, Subhas Chandra Sen or Dr. Moni Mohan Sil PW 22. Mr. Chatterjee submits that the learned Judge to substantiate his finding under Section 302 of the IPC mainly relied on the testimony of the child witness Nabanita Dutta.
12. Mr. Chatterjee contends that the statement of a child witness regarding commission of an offence can be accepted in the eye of law and even a conviction can be passed on such statement of a child witness, but, before accepting the statement of such child witness, Court must take all precautions and Court must be sure about the veracity of such statement of a child witness. Mr. Chatterjee in this context has drawn our attention to two decisions of the Apex Court in the case of C.P. Fernandes v. Union Territory, Goa and in the case of State of Assam v. Mafizuddin Ahmed reported in 1983 Supreme Court Cases (Criminal) page 325. Mr. Chatterjee submits that the Apex Court has cautioned regarding acceptance of the statement of the child witness if there appears serious infirmities and contradiction in such statement. Mr. Chatterjee contends that the Apex Court has also cautioned the Trial Court before relying on such statement of child witness to be sure that there was no scope of tutoring such witness. Mr. Chatterjee submits that from the statement of Nabanita Dutta PW 20, it would appear that before the Court said witness implicated all the members of the family, but, while giving her statement to the police under Section 161 of the Code of Criminal Procedure she disclosed only the name of Sadhari Dutta and Radharani Dutta. Mr. Chatterjee contends that there are other contradictions and infirmities in the statement of Nabanita and it is significant to mention that Nabanita soon after occurrence was under the care and custody of her maternal uncle and she came to depose in Court from such custody of her maternal uncle and hence, there were serious chances of her being tutored by her maternal uncle. Mr. Chatterjee submits that when there are serious contradictions in the statement of Nabanita and when the possibility of her being tutored by her maternal uncle could not be ruled out, it would be risky and dangerous to sustain an order of conviction under Section 302 of the IPC on the basis of the statement of such a child witness.
13. Mr. Chatterjee, therefore, concludes that when there is no other corroborative evidence to support the prosecution case and when there is enough scope to raise question whether the victim actually suffered a homicidal death, the learned Judge was not justified in recording the order of conviction against Sadhan Dutta and Radharani Dutta solely relying on the testimony of a child witness and hence, the judgment and order of the learned Judge should be set aside in the interest of justice and the convicted persons should get the benefit of doubt.
14. Appearing for the State respondent, Mr. Goswami submits that the prosecution allegation regarding torture and assault on Sarbani since her marriage in the hand of the convicted persons has been sufficiently corroborated by the evidence of PW 1, PW 9, PW 11 and PW 15. Mr. Goswami submits that the allegation of torture and assault has been well corroborated by the letter written by Sarbani just before her death marked exhibit 4. Mr. Goswami contends that the letter of Sarbani is very much admissible in evidence under Section 32 of the Evidence Act as same disclosed the cause of her death and the circumstances which resulted in her death. Mr. Goswami to substantiate his point has referred to the decision of the Supreme Court delivered in the case of Dalbir Singh v. State of Uttar Pradesh, reported in 2004 SCC (Criminal) page 1592.
15. Mr. Goswami submits that PW 14 the doctor holding the post mortem examination has categorically opined during his statement with reference to post mortem report that the death of Sarbabni was homicidal death and the doctor also gave opinion that considering the nature of injury there were reasons to hold that more than one persons took active part in causing the burn injuries over the body of the victim by pouring inflammable article and thereafter setting fire. Mr. Goswami submits that the contents of exhibit 4 along with the statement of PW 1, PW 9, PW 11 and PW 15 gives a complete chain of circumstances leading to an irresistible conclusion that the appellants had the intention to kill Sarbani and in fact, on the fateful day the appellants poured kerosene oil on the person of Sarbani and thereafter set fire for killing Sarbani.
16. Mr. Goswami contends that in this case apart from circumstantial evidence and even without placing any reliance on the dying declaration of Sarbani, prosecution succeeded in producing a most reliable evidence who saw the occurrence herself and that witness was none else than the daughter of the victim Sarbani. Mr. Goswami submits that PW 20 Nabanita has disclosed during her statement that at the time of occurrence she was present inside the house and she saw her father to pour kerosene oil on her mother's body and she saw her grandmother Radharani to set fire on the body of her mother. Mr. Goswami contends that it has come from the statement of Nabanita that soon after the occurrence she was taken by the appellants and other members of the house to some unknown place and she was kept there for a considerable period of time till her recovery. Mr. Goswami contends that although Nabanita came from the custody of her maternal uncle but the first impression which Nabanita got within her mind regarding the unfortunate occurrence relating to her mother's tragic death got so much printed on her soft mind that Nabanita made a true and correct statement regarding the occurrence implicating her own father and grandmother. Mr. Goswami contends that the learned Trial Judge after being satisfied about the general intelligence and capacity of Nabanita to depose independently recorded her statement and hence, the statement of Nabanita cannot be thrown away simply on the ground that there are some minor discrepancies in her statement or on the ground that she may be tutored to depose against the appellants. Mr. Goswami to substantiate his point on this issue has referred to a decision of the Hon'ble Supreme Court in the case of Ratansingh Dalsukhhhai Nayak v. State of Gujarat reported in 2004 SCC (Criminal) page 7. Mr. Goswami, therefore, submits that from the circumstantial as well as direct evidence adduced by prosecution in the form of PW 20, the learned Judge was justified in recording the order of conviction against both the appellants.
17. We have perused the entire evidence on record and we have also considered submissions of both the appellants as well as the State respondent.
18. From the evidence on record that prosecution case has got two aspects, one regarding torture over the demand of dowry and the other is the murder of the victim by pouring kerosene oil on her person. From the evidence on record and from the analysis recorded by the learned Judge over such evidence we notice that prosecution relied mainly on the statement of PW 1, PW 9, PW 11 and PW 15 to substantiate the charge of torture and assault over the victim on demand of dowry.
19. We also find from record that to substantiate its case prosecution relied heavily on the FIR of PW 15 and also on a letter written by victim just one day before the death which was marked as exhibit 4.
20. Although in this case prosecution declared PW 5 a hostile witness, we find on examination of his statement that he fully supported the prosecution case regarding exhibit 4. Thus, when we consider exhibit 4 in the background of the statement of PW 5 along with the statement of PW 9, PW 11 and PW 15, we find that there is ample evidence on record to substantiate the allegation of torture and assault against both the appellants. We have examined the decision of the Hon'ble Supreme Court given in the case of Dalbir Singh v. State of U.P. (supra) and following the ratio of the decision we are convinced that the letter written by Sarbani and marked as exhibit 4 has got enough evidentiary value and that letter alone together with the statement of PW 1, PW 9, PW 11 and PW 15 sufficiently proved the prosecution case against the appellants under Section 498(A) of the IPC.
21. When we find sufficient support from the evidence on record regarding prosecution case of cruelty against the victim we also find that prosecution sufficiently proved the motive and intention of the appellants regarding commission of murder of the victim.
22. From the evidence of the doctor and also from the post mortem along with the statement of PW 15 we are convinced that there is no evidence to support the contention of the appellants that Sarbani committed suicide. It is neither the case of prosecution nor of the appellants that Sarbani caught fire accidentally while performing household duty. Thus, from the evidence of doctor, post mortem report and other surrounding fact and circumstances we are inclined to draw the conclusion that Sarbani suffered a homicidal death and such death was caused by pouring kerosene oil on her body and thereafter setting fire.
23. The learned Judge did not place any reliance on the dying declaration of Sarbani although the doctor in whose presence such declaration was made deposed supporting the dying declaration on the ground that such dying declaration was not corroborated by other evidence. The learned Judge in this regard placed his reliance on the testimony of daughter of the victim PW 20 Nabanita. Mr. Chatterjee frankly submitted that if the deposition of Nabanita appears to be acceptable in the eye of law then, of course, there is no scope for the appellants to avoid the order of conviction and sentence. Mr. Chatterjee has, however, raised the question about acceptance of the statement of Nabanita on the ground that at the time of her deposition she was a child witness and since there are infirmities in her statement and since there was a chance of her being tutored by her maternal uncle, in the interest of justice, no reliance should have been placed on her testimony to record an order of conviction and sentence under Section 302 of the Indian Penal Code.
24. We have given our serious consideration on the submission of Mr. Chatterjee and we have examined the statement of PW 20 for our own satisfaction. We have also taken due notice of different decisions of the Hon'ble Supreme Court on the deposition of a child witness on different occasions and presently referred to by both the learned advocates for the appellants and also the State respondent.
25. From the decision of the Hon'ble Supreme Court in the case of Ratansingh Dalsukhbhai Nayak v. State of Gujarat (supra), we find that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear that his conclusion was erroneous.
26. The Hon'ble Supreme Court on different occasions has recorded the note of precaution in the matter of acceptance of the statement of child witness on the ground that such witnesses are generally amenable to tutoring and often they live in a world of make-believe. But the Hon'ble Supreme Court has also observed in the case under consideration that if on proper appreciation of the statement of child witness it appears that such witness was not tutored and that such witness gave a true account of what he or she had seen then there cannot be any legal difficulty in sustaining an order of conviction depending on the statement of such child witness.
27. Keeping in mind the above guideline of the Hon'ble Supreme Court on the veracity and acceptance of a child witness, we have examined the fact and evidence of this particular case. We find from evidence that here in this case PW 20 Nabanita was present in the house at the time of occurrence. It is available from evidence that Nabanita was taken to an unknown place soon after the occurrence by her father and other inmates of the house and she was kept there for a considerable period of time and this part of her statement has not been challenged in her cross-examination. We hold that since Nabanita was under custody and care of her father and other inmates of the house it was not possible for Nabanita to have any tutoring from any member of her mother's family.
28. It is true that there are some minor discrepancies in the statement of Nabanita before the Court, but, if we consider the age of Nabanita, the occurrence which compelled her to depose before Court and other surrounding fact and circumstances, we are of the view that such minor infirmities can be well ignored and we are further of the opinion that Nabanita was not tutored to give her statement before the Court. We also notice from the deposition of Nabanita that the learned Judge after satisfying himself about the intelligence of Nabanita and about her independent mental faculty, recorded her statement and keeping in mind the observation of the Hon'ble Supreme Court in this regard, we are of the view that when the learned Judge after satisfying himself recorded the statement and placed reliance on such statement, as there appears no visible ground to disagree with the observation of the learned Judge regarding acceptance of the statement of Nabanita, the contention of the appellants regarding acceptability of the statement of Nabanita can easily be ruled out.
29. Thus, from the fact and evidence on record and after considering the submissions of both the learned advocates for the appellants and the learned advocates for the State respondent, we are of the view that in this case prosecution successfully proved its case under Section 498(A) of the IPC and prosecution also satisfactorily proved that Sarbani died a homicidal death and from the direct evidence of PW 20 Nabanita and from the circumstantial evidence as derived from the letter of Nabanita marked exhibit 4 and from the evidence of PW 1, PW9, PW 11 and PW 15 prosecution also satisfactorily proved that Sadhan Dutta and his mother poured kerosene oil on the person of Sarbani and set fire on her body for causing her death.
30. In view of what has been stated above, we are of the view that having regard to the fact and evidence on record there is no merit in the present appeal and there is no scope for us to interfere with the order of conviction and sentence recorded against the appellant Sadhan Dutta.
We, therefore, dismiss the appeal.
The order of conviction and sentence passed by the learned Sessions Judge, Bankura against the appellant Sadhan Dutta is hereby confirmed.
Send a copy of this judgment and order to the learned trial Court along with LCR forthwith.
Send a copy of this judgment and order free of cost immediately to the Superintendent of Jail/Correctional Home where the appellant is lodged for his Information.
Pranab Kumar Deb, J.
I agree.