Calcutta High Court (Appellete Side)
Sabitri Barman vs The State Of West Bengal on 25 July, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. 10 of 2015
SABITRI BARMAN
VS.
THE STATE OF WEST BENGAL
With
C.R.A. 4 of 2015
ASHUTOSH BARMAN and OTHERS
VS.
THE STATE OF WEST BENGAL
For the Appellants : Mr. Siladitya Sanyal, Sr. Advocate
Mr. Subhrajyoti Dey, Advocate
For the State : Mr. S. G. Mukherjee, Ld. PP,
Mr. Ranadeb Sengupta, Advocate
Heard on : July 25, 2018
Judgment on : July 25, 2018
Joymalya Bagchi, J. :
The appeals are directed against judgment and order dated 15.12.2014 passed by learned Additional Sessions Judge, Fast Track Court, Cooch Behar in Sessions Trial No. 03(October) 2009 arising out of Sessions Case No. 158 of 2009 convicting the appellant in CRA 10 of 2015 for commission of offences punishable under Sections 302/34 and 498A/34 of the Indian Penal Code and sentencing her to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- for the offence punishable under Section 302/34 of the Indian Penal Code and to suffer simple imprisonment for three years and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for six months more for the offence punishable under Sections 498A/34 of the Indian Penal Code. Both the sentences to run concurrently.
By the self-same judgment and order, the appellants in CRA 4 of 2015 were convicted for the offence punishable under Sections 498A/34 of the Indian Penal Code and directed to suffer simple imprisonment for three years and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months more.
The prosecution case, as alleged against the appellants is to the effect that the victim Namita Barman was married to Ashutosh Barman on 27.3.2008 as per Hindu rites and customs. At the time of marriage, Naresh Chandra Barman (P.W.1), father of the victim girl gave Rs.30,000/- cash, motorcycle, gold finger ring, gold ornaments, furniture and fixtures to the appellants as dowry.
After the marriage the victim started residing at the matrimonial home. A female child was born to the couple. After the birth of the child the appellants demanded Rs.50,000/- for business purpose. Father of the victim failed to pay the said money. Victim was subjected to mental and physical torture. The victim narrated such incidents of torture to her father and other relations when she came to her parental home. One month prior to the incident the victim was assaulted and driven out of her matrimonial home. She took shelter at her parental home and her father decided to start a criminal case against the appellants. Thereupon the victim was brought back to the matrimonial home 15 days prior to the incident. On 23.03.2008 in the evening father of the victim received information that his daughter had suffered burn injuries. He went to the hospital along with his relations. Victim informed them that in the afternoon her mother-in-law had poured kerosene on her and set her on fire. Over the incident Naresh Chandra Barman (P.W. 1) lodged first information report being Dinhata Police Station Case No. 99 of 2008 dated 27.03.2008 under Sections 498A/326/307 of the Indian Penal Code against the appellants. On the self- same day, dying declaration of the victim was recorded in the hospital in the presence of P.W. 17, a doctor. Victim expired on 31.03.2008 and section 302 of the Indian Penal Code was added to the array of offences.
In conclusion of investigation, charge-sheet was filed against the accused persons. The case being a sessions triable one was committed to the Court of Sessions and was transferred to the Court of the Additional Sessions Judge, Fast Track Court, Cooch Behar for trial and disposal. Charges were framed under Sections 302/34 and under Sections 498A/34 of the Indian Penal Code against the appellants who pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 19 witnesses and exhibited a number of documents. Plea of the appellants was one of innocence and false implication. In conclusion of trial, learned Trial Judge by judgment and order dated 15.12.2014 convicted and sentenced the appellants, as aforesaid.
Mr. Sanyal, learned senior Counsel appearing for the appellants argued that the prosecution has not been able to prove that the victim was tortured over demands of dowry. No contemporaneous complaint was lodged by the father or other relations of the victim over such issue. He referred to the evidence on record to show that there was cordial relation between the families and the allegation of torture upon the victim on demands of dowry was wholly untenable.
Coming to the dying declarations of the victim, he drew my attention to the noting by Dr. Kolay on 23.03.2008 at 7.25 pm in the bed head ticket of the victim to the effect that the victim was "not fit for dying declaration". Relying on such noting senior Counsel argued that the evidence of prosecution witnesses that the victim made an oral dying declaration to them was highly unreliable. He also submitted that the written dying declaration recorded on 27.03.2008 had not been proved in accordance with law. Executive Magistrate who recorded the dying declaration had not been examined. Even the purported signatories to the said dying declaration have not supported the said declaration.
On the other hand, the evidence has come on record that the appellant Sabitri was not at the place of occurrence at the time of incident and P.W. 12 deposed that the victim stated to the doctor that she had caught fire during cooking. He, accordingly, prayed for acquittal.
Learned Counsel for the State argued that the victim was subjected to torture on further demands of dowry. On 23.03.2008, while she was cooking, her mother-in-law poured kerosene on her and set her on fire. She was admitted to the hospital. When P.Ws. 1, 2, 3 and 7 came to the hospital, she informed them of the incident. She again made oral dying declaration to P.Ws. 4 and 8 on subsequent dates. On 27.03.2008 her dying declaration was recorded by executive magistrate in presence of doctor (P.W. 17). Hence, the appeals are liable to be dismissed and conviction and sentence of the appellants may be upheld.
Let me examine the rival versions in the light of the evidence on record. P.W. 1, Naresh Chandra Barman, is the father of the victim and the informant of the instant case. He deposed that his daughter was married to Asutosh Barman according to Hindu rites and customs. He gave cash of Rs.30,000/- one motor cycle, gold ornaments weighing two bhoris, cot, furniture etc. as dowry. The members of the in-law's house tortured his daughter both physically and mentally as further demand of Rs.50,000/- was not met by him. His daughter narrated the demand to him when she came to his house. He sent his daughter to her in-law's house. She was tortured there and again took refuge at his residence. Thereafter his son-in-law assured him she would not be tortured at the matrimonial home and she returned to the matrimonial home. On the day of the incident he received information from neighbours that Sabitri, mother-in-law of his daughter, had poured kerosene oil on her wearing apparels and set her on fire. His daughter narrated the incident to him while she was admitted at Dinhata hospital. From the wedlock a female child had been born to the couple. He filed complaint four days after the incident. One Dipak Sen wrote the written complaint and he put his signature thereon. Police interrogated him. His daughter died seven days after admission in the hospital. In cross- examination, he stated after conception his daughter stayed at her in-law's house. He and his wife visited his daughter 15 to 16 times. Rice taking ceremony of his grand daughter was celebrated in the house of the accused persons. None of the accused persons were present when he went to the hospital.
P.W. 2, Manik Chandra Barman, is the brother of the victim. He deposed that the victim was married to Asutosh Barman three/four years ago. At the time of marriage cash of Rs. 30,000, one motor cycle, furniture and utensils were given. His sister started residing at her matrimonial home. A female child was born to the couple. After birth of the child the husband and other family members demanded Rs.50,000/- to start a new cycle shop with the said amount. His sister returned to their house. They threatened that they would file a case against the appellants. Thereupon, Asutosh gave assurance that his sister will not be subjected to torture. On 23.03.2008 between 2.00 to 2.30 p.m., his sister was cooking in the kitchen. At that time mother-in-law poured kerosene oil on the wearing apparels of the sister and set her on fire. On hearing the news they rushed to the hospital. His sister narrated the incident to him. After four days of the incident his father filed a complaint at the police station. Sister died in the hospital on 31.08.2008. Police held inquest over the body of the sister. He signed on the inquest report marked as Ext.-2/1. Inquest was also held by the learned Magistrate. He signed on that report marked as Ext. 3/1. In cross- examination, he stated that he went to her in-law's house three times after the marriage. He stayed in the hospital continuously for a few days. His niece is residing with the appellants at present.
P.W. 3, Rajkanta Barman, is a neighbour of P.W. 1. He deposed that Asutosh married Namita four years ago. A female child was born to the couple. Asutosh demanded money from his father-in-law. The victim was subjected to torture. When the victim was staying at the matrimonial home, her mother-in- law had set her on her. He went to see the victim while she was admitted at Dinhata hospital. The victim told her that while she was preparing rice in the kitchen her mother-in-law had set her on fire.
P.W. 4, Atis Barman, is the brother-in-law of the victim. He deposed that the victim was married four years ago with Asutosh. A female child was born to the couple. He heard that mother-in-law of the victim set her wearing apparels on fire while she was cooking. He heard the incident from P.W. 2. Two days after the incident he went to the hospital and the victim narrated the incident to him. In cross-examination he stated that he went to the hospital in the evening at 8p.m.
P.W. 5, Gunadhar Laskar, is another neighbour who was declared hostile and was cross-examined with regard to his previous statement before police.
P.W. 6, Ajoy Bhattacharjee, is a priest who solemnized the marriage between the victim and Asutosh. He deposed that he heard that the mother-in- law of the victim had set her on fire and as a result she died.
P.W. 7, Binodini Barman, is another neighbour of the victim. She deposed that Namita was married to Asutosh four years ago. During her stay at the matrimonial home she was ill-treated. Namita informed such fact to the witness. The accused persons had demanded Rs.50,000/- as dowry. Her father was unable to meet the demand. As a result, she was subjected to torture. She went to the hospital and Namita told her that her mother-in-law poured oil and set her on fire. In cross-examination, she stated that she reached the hospital around 5 to 6 p.m. on that date.
P.W. 8, Sushil Sen, is also a neighbour of the victim. He deposed that a female child was born to the couple. He heard about the incident from the son of Naresh, P.W. 1. Four days after the incident he went to the hospital and the victim narrated the incident to him. In cross-examination, he stated when he went to the hospital he found the victim in bed and she was able to speak. He also stated that he saw burn of injuries on the face, up to elbows of both the hands, all the fingers were blackish in colour and bent.
P.Ws. 9, 11 and 12 were tendered for cross examination. In cross examination, P.W. 9 deposed that on the date of incident he was cultivating his land situated two bighas away from the residence of Kamalakanta, father in law of the victim. Land of Kamalakanta is adjacent to his land. Kamalakanta and his wife were working in the land. He went to the hospital after the incident. He found both the hands of the victim were burnt along with palms and nails and fingers. He asked the victim how she caught fire. She could not state how she sustained burn injuries. He saw the parents and brother of the victim to whom the latter was talking.
P.W.11 is a neighbour of the appellants. In cross examination, he stated that upon hearing a hue and cry, he came to the house of the appellants and found Kamalakanta and his wife were uprooting 'kalai' outside the house. Other family members were trying to extinguish fire.
P.W.12 in cross examination stated that she had gone to the hospital on the day the victim was admitted. She remained in the hospital up to midnight. Parents and brother of Namita came to the hospital. None else came to the hospital when she was at the hospital. They had a talk with Namita in the hospital and in her presence Namita stated before the doctor that she caught fire while cooking.
P.W.13 Bijon Kr. Dutta held post mortem over the victim. He found extensive old burn injuries with slough form involving anteior chest wall, anterior abdominal wall, both upper and lower limbs covering almost 60% of the body. He opined death was due to toxemia following the burn injuries. He proved post mortem report (Ext. 4).
P.W.14 was an ASI of police attached to Dinhata P.S. He conducted enquiry with regard to Dinhata PS UD case no. 38/08 and held inquest over the dead body (Ext. 2). He sent the dead body through constable Chandreswar Barman for post mortem examination.
P.W.15 Chandreswar Barman carried the dead body for post mortem examination.
P.W.16 was the executive magistrate who conducted inquest over the body of the victim (Ext. 3).
P.W.17 Dr. S. Roy was a medical officer attached to Dinhata S.D hospital. On 27.3.2008 he was posted in the same capacity. On that day Namita, an indoor patient was in the hospital in burnt condition. He examined the patient and declared her fit to give dying declaration. He asked her some questions. Sri M.N. Sarkar, Executive Magistrate recorded dying declaration of the patient in his presence. Dying declaration was recorded in his presence. He proved his signature on the dying declaration (Ext. 6). One sister of the hospital and some relatives of the patient were present at the time of recording dying declaration P.W.18 is the investigating officer in the instant case. He deposed that on 27.3.2008 I.C received written complaint from one Naresh Chandra Barman and the investigation was endorsed to him. He drew up formal FIR (Ext. 7). He examined the available witnesses. He recorded statement of the victim in S.D hospital, Dinhata. He prayed before SDO Dinhata for recording dying declaration of the victim. Thereafter M.N. Sarkar, Deputy Magistrate recorded dying declaration of the victim. He prepared rough sketch map of the place of occurrence (Exts. 8 and 8/1). On 31.1.2008 Namita Barman expired at the hospital. He collected the inquest report and post mortem report. He made prayer before the court for adding section 302 IPC. He submitted charge sheet under sections 498A/302 IPC. In cross examination he stated that he was present at the time of recording dying declaration. Dying declaration does not bear his signature. He was in the hospital till 2.50 p.m. He did not examine Dr. Aloke Kumar Koley. No doctor or ward master advised him to get the dying declarations recorded. He did not make any requisition for any doctor to remain present at the time of recording dying declaration.
P.W.19, Sankar Kr. Das was a ward master of Dinhata S.D hospital. He produced the admission register, bed head ticket, treatment sheet etc. of the victim From the evidence on record it appears that the prosecution case rests on the dying declaration made by the victim to the prosecution witnesses while she was admitted in the hospital from 23.3.2008 to 31.3.2008. P.Ws. 1, 2, 3 and 7 claimed that they had gone to the hospital when the victim was admitted and she narrated to them that while she was cooking her mother in law i.e Sabitri Barman poured kerosene oil on her wearing apparels and set her on fire. This is the first dying declaration of the victim. Two days after the incident P.W. 4, her brother in law visited her in the hospital and the victim narrated the same incident to him. Similarly, four days after the incident when P.W. 8, a neighbour visited her, she narrated the same incident to him. On that day around 1.45 p.m. P.W. 2 lodged written complaint with the I.C, Dinhata P.S and on receipt of the written complaint Investigating Officer (P.W.
18) requested the SDO to record her dying declaration and M N. Sarker, Deputy Magistrate recorded dying declaration of the victim at the hospital between 2.20 to 2.45 p.m. in the presence of a doctor P.W. 17 which has been exhibited as Ext. 6/1.
Apart form the aforesaid dying declarations, P.W. 12 claimed that the victim had made an exonerative dying declaration before the doctor on the date of admission and stated that she caught fire while she was cooking.
Learned senior counsel has criticized the aforesaid incriminating dying declarations on a number of issues. He argued that in the bed head ticket there is a noting on 23.3.2008 at 7.25 p.m. by one Dr. Koley that the victim was not fit for making dying declaration. That apart, the dying declaration was recorded on 27.3.2008 under most suspicious circumstances. M. N. Sarkar, Deputy Magistrate, who recorded the dying declaration, has not been examined. It is unclear who had summoned M.N Sarker to record the dying declaration and none of the signatories to the dying declaration have supported the document. Even the LTI of the victim on the dying declaration is doubtful as it appears her fingers were burnt.
On the other hand there is an inexplicable delay of four days in lodging FIR which improbabilise the fact that the victim had made oral dying declarations to her relations and others in the interregnum.
I have given anxious thought to the aforesaid contentions. In Atbir Vs. Government of NCT of Delhi (2010) 9 SCC 1 (para 22), the Apex Court summarized the law relating to dying declaration as follows:
" (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration."
Coming to the oral dying declaration made by the victim immediately upon admission at the hospital, I find that the prosecution witnesses including P.W. 10 and P.W. 12 claimed that the victim was conscious and able to speak when she admitted to the hospital. In fact, she was seen talking to her father and other relations at that time. Noting in the bed head ticket at 5.20 p.m. also shows that the patient was conscious at the time of admission. Strong reliance has been placed on a note purportedly made by Dr. A. K. Kolay on 23.3.2008 at 7.25 P.M. that the victim was not fit for dying declaration.
I have considered the said note in the light of the attending facts and circumstances of the case including other contemporaneous entries made in the bed head ticket. Although Dr. Kolay had not been examined in the instant case, the bed head ticket, treatment sheets and the admission register had been read into evidence upon consent under Section 294 of the Code of Criminal Procedure. Hence, I have examined the various entries in the bed head ticket which reveals an interesting sequence of events. On 23.3.2008 a requisition was made by the Medical Officer of Dinhata S. D. Hospital for recording the dying declaration of the victim. At the foot of the requisition, an entry was made by Dr. Kolay at 7.20 P.M. directing police personnel to be summoned to record dying declaration. Most strangely, within five minutes i.e. at 7.25 P.M. the self-same Doctor appears to have made an endorsement that the patient was not fit for recording dying declaration. It is inexplicable as to how a Medical Officer who requisitioned police officer for recording dying declaration, within five minutes could change his mind and make an endorsement that the patient was not fit for making dying declaration. On the other hand, the entry made in the bed head ticket at the time of admission around 5.20 p.m. shows that the patient was conscious. This probabilises the fact that the patient was conscious at the time of admission on 23.3.2008 around 5/6 p.m. and narrated the incident to her relations and others who met her at the hospital in the evening. The prevaricating stance of Dr. Kolay with regard to her lack of fitness to make dying declaration recorded at 7.25 p.m. does not sound convincing nor does it improbabilise the capacity of the patient to converse with her relations in the earlier part of the evening around 5/6 p.m. when it is noted that she was conscious. Overwhelming number of prosecution witnesses evidence viz., P.Ws. 1, 2, 3, and 7 unequivocally stated that when they reached the hospital around 5.00 to 6.00 P.M., the victim was conscious and had narrated the incident to them.
In view of such convincing oral evidence on record which is corroborated by the entry in the bed head ticket that the victim was conscious at the time of admission, I am of the view that the prosecution has been able to prove that the victim was conscious and capable of speaking around 5.00 to 6.00 P.M. on the date of admission, that is, 23.03.2008 and had made oral dying declaration to P.W. 1, P.W. 2, P.W. 3 and P.W. 7 implicating her mother-in-law as the person who set her on fire in the afternoon. On subsequent dates, she made similar dying declarations to P.W. 4 and P.W. 8 when they visited her in the hospital. Thereafter on 27.3.2008 written complaint was lodged by P.W. 1 with I. C. Dinhata Police Station. Thereupon, the I.O., P.W. 18 made a requisition to SDO, Dinhata for recording dying declaration of the victim by an Executive Magistrate. Accordingly, her dying declaration came to be recorded by M. N. Sarkar between 2.20 to 2.45 P.M. in the presence of the doctor, P.W. 17. Evidence of P.W. 18 clarifies the circumstances in which the aforesaid dying declaration came to be recorded. P.W. 17, a Doctor attached to Dinhata S. D. Hospital was present when the said dying declaration was recorded by M. N. Sarkar. He unequivocally stated that the victim was in a fit state of mind to make the dying declaration. Hence, I have no doubt in my mind that the written dying declaration (Ext. 6/1) was recorded in the instant case at a time when the victim was conscious and fit to of make of such declaration.
It is true that the signatures of other witnesses in the dying declaration (apart from P.W. 17) have not been proved. However, such remissness on the part of the prosecuting counsel cannot cast a doubt on the written dying declaration which was recorded in the presence of P.W. 17, a Medical Officer. P.W. 17 has duly proved his endorsement on the document and no suggestion has been given that P.W. 17 is a biased or an interested witness. Hence, I consider it prudent to rely on his evidence to come to a finding that the dying declaration was duly recorded in the instant case in his presence by M. N. Sarkar. Although there is some evidence that fingers of the victim were burnt, no question was put to P.W. 17 or the post mortem doctor, P.W. 13 whether the severity of the burns on her fingers were such that no thumb impression was possible. In absence of such deposition, I am loathe to disbelieve that the victim was unable to affix her thumb impression as argued by the defence (see Krishan Vs. State of Haryana (2013) 3 SCC 280 (para 24)) Finally, it has been argued that M. N. Sarkar has not been examined in this case and the best evidence was withheld from the Court giving rise to an adverse presumption against the prosecution case. Non-examination of the author of a document ordinarily would caste doubt as to its execution. In order to allay any misgivings in this regard, I have gone through the order sheet of the trial court. I note that the summons was issued to M. N. Sarkar to depose in the instant case and dates were fixed on 12.1.2012, 10.2.2012, 10.5.2012 and 18.8.2012 to record his deposition. As the public servant had been transferred and his subsequent place of posting was not known, summons was sought to be served through the Principal Secretary (Home) PAR, Government of West Bengal, but his attendance could not be secured. Faced with such a situation, the prosecution took out an application for exhibiting the dying declaration recorded by the Deputy Magistrate through the deposition of P.W. 17. Upon hearing the parties by order dated 15.9.2012, the trial court held that the P.W. 17 was a competent witness to prove the dying declaration recorded by M. N. Sarkar in his presence and exhibited it as Ext. 6/1.
Learned Senior Counsel has strongly contested the correctness of such finding. I have examined the evidence of P.W. 17 and I find that the said witness was present when M. N. Sarkar, Executive Magistrate recorded the dying declaration in the hospital.
Section 47 of the Evidence Act reads as follows;
"Sec.47: Opinion as to handwriting, when relevant:-When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation.--A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him."(Emphasis supplied) A plain reading of the explanation to the aforesaid section would show when a document is written in the presence of a witness, such witness would be said to be acquainted with the hand writing of the maker and his evidence is admissible under Section 47 of the Act.
Hence, I have relied on Ext. 6/1 i.e. the written dying declaration recorded by M. N. Sarkar as proved by P.W. 17 who was present at the time of its execution. It is also relevant to note the dying declaration was recorded by the Deputy Magistrate in discharge of his official duty and a presumption as to its regularity may also be drawn by the Court in terms of Section 114 illustration (e) of the Evidence Act. Accordingly, I am of the opinion that the written dying declaration of the victim (Ext. 6/1) has been duly proved in the instant case.
The written dying declaration reads as follows:-
"My name is Namita Burman, age 20 years, I have a daughter off 10/11 month. 4/5 days ago there was agitation in my house. On that time I was cooking. Mother-in-law set fire on my body pouring kerosene oil. On that time my father-in-law, mother-in- law, husband and two brothers-in-law were present at home. Two years had gone of my marriage. Husband had a shop of cycle repairing. After my marriage, I lived at my in-law's house. There was no dispute between my husband and me."
A plain reading of the said dying declaration shows that the victim while implicating her mother-in-law, Sabitri, had exonerated her husband, Asutosh. Had it been a tutored or manufactured document, there was no reason why the husband would have been spared. Tenor of the dying declaration, therefore, prompts me to hold that it is a truthful version of the victim which is not a product of tutoring etc. The written dying declaration, therefore, passes the twin test, namely, the capacity of the victim in making such declaration and its intrinsic truthfulness so as to inspire confidence and may be relied upon.
In view of the consistent oral and written dying declarations implicating the appellant Sabitri in setting the victim on fire, I choose not to give credence to the desperate attempt on the part of P.W. 12 to exonerate the appellants by claiming that the victim told in presence of the doctor on the day of admission that her wearing apparels caught fire while she was cooking. No medical personnel has supported her version. There is no entry in the contemporaneous records like bed head ticket, admission register or treatment sheet supporting her statement. P.W.12 was a neighbour of the accused person and has sought to manufacture this story of exonerative declaration to save the appellants from legal punishment. Accordingly, I do not give credence to her uncorroborated version in the light of more reliable dying declarations particularly the written dying declaration recorded in the presence of doctor, P.W. 17 in the instant case.
I am, however, inclined to observe that the practice of tendering witnesses like P.W.9, P.W.11 and P.W.12 as adopted by the prosecution is illegal and uncalled for and ought not to have been undertaken by the prosecutor in the instant case.
It is open to the prosecution to choose its own witnesses who are necessary for the unfolding of its case. As the prosecution merely tendered P.Ws. 9, 11 and 12 for cross-examination, it is clear that it had given up those witnesses and did not wish to examine them for the unfolding of its case.
Under such circumstances, it was unnecessary and uncalled for on the part of the prosecution to tender the aforesaid witnesses for cross-examination under the scheme of the new Code (see Sukhwant Singh Vs State of Punjab (1995) SCC (Cri) 524).
Referring to the cross-examination of P.Ws.9 and 11 it has been submitted by the appellants that Kamala Kanta Barman and Sabitri Barman, parents in law of the victim were not present at the place of occurrence. P.W.9 stated that they were cultivating their own land which is adjacent to his land situated 2 bighas away from their house, whereas P.W.11 stated that they were outside their house plucking "Kalai". Patent inconsistency in the versions of these witnesses with regard to the alibi of the said appellants exposes the hollowness and falsity of such plea. Hence, I am not inclined to give credence to such plea and am inclined to rely on the consistent oral as also written dying declarations implicating Sabitri as the person who set the victim on fire on the fateful day.
Coming to the torture on the victim over demands of dowry prosecution witnesses claimed that an additional sum of Rs.50,000/- was demanded for setting up a new cycle shop. P.W. 2 claimed that such demand was made by Asutosh, the husband. Evidence has come on record that the cycle shop business was run by Asutosh and none of the appellants. On the other hand, the dying declaration of the victim exonerates Asutosh from subjecting her to any ill- treatment or torture.
In view of the variance between the oral evidence of the prosecution witnesses with regard to the demand of additional sum of Rs.50,000/- primarily by the husband for a new cycle shop on the one hand and the dying declaration of the victim exonerating her husband on the other hand, I am constrained to observe that it is unsafe to rely on such oral evidence regard to the torture on the victim over demands of additional money to set up a new cycle shop. On the other hand, the oral and written dying declarations categorically establish Sabitri, the mother-in-law of the victim, as the person who poured kerosene oil on the victim and set her on fire.
In the light of the aforesaid discussion, I am of the view that the conviction and sentence imposed on the appellant Sabitri (in CRA 10 of 2015), for commission of offence punishable under Sections 302/34 of Indian Penal Code are liable to be upheld.
Conviction and sentence imposed on all the appellants (including Sabitri) for commission of offence punishable under Sections 498A/34 of IPC is set aside.
The appellants, namely, Ashutosh Barman, Kamala Kanta Barman, Uttam Barman, Dipen Barman and Sampa Barman (in CRA 4 of 2015), shall be discharged from their bail bonds after six months in terms of section 437A of Criminal Procedure Code.
Period of detention suffered by the appellant Sabitri (in CRA 10 of 2015) during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon her in terms of section 428 of the Criminal Procedure Code.
Accordingly, CRA 10 of 2015 is allowed and CRA 4 of 2014 is dismissed. Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) ab/sdas/tkm/as/rkd&PA