Calcutta High Court (Appellete Side)
Kanai Das @ Kalu vs The State Of West Bengal on 31 July, 2019
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan, Jay Sengupta
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
&
The Hon'ble Justice Jay Sengupta
CRA 640 of 2006
Kanai Das @ Kalu
Vs.
The State of West Bengal
For the appellants : Mr. Suman De
Mr. Parvej Anam
Mr. Debanshu Gharai
For the State : Mr. A.K. Maity
Mr. Anwar Hossain
Heard finally on : 01.07.2019
Judgment on : 31.07.2019
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction dated August 30, 2006 and sentence dated September 1, 2006 passed by the learned Additional Sessions Judge, 2nd Court, Howrah in Sessions Trial Case No. 441 of 2003. By virtue of the impugned judgment 2 appellant was convicted for the commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and was sentenced to suffer rigorous imprisonment for life while the other accused namely Utpal @ Buro Das, Pratap Das @ Putto and Smt. Kalpana Das were found not guilty of the offence under Section 302/34 IPC and were acquitted from charge.
On January 31, 1999 at 18.05 hours P.W.1,brother of the victim, lodged a written complaint (Ext.1) at Golabari P.S. alleging that since after marriage his deceased sister Jharna Das, was tortured by her brother-in-law Kanai Das (appellant), his wife (Kalpana Das) and his two sons Buro Das and Puto Das and on last night they tried to kill her by pouring kerosene oil on her person and setting her on fire. She was admitted in the Howrah General Hospital in surgical ward in a critical condition. Mrityunjay Das, husband of his sister also sustained injury while trying to save the victim and he was also admitted in the hospital.
On the basis of above complaint, Gola Bari P.S. Case No. 31 dated January 31, 1999 was started against the appellant, his wife and sons under Sections 326/307 IPC and the case was endorsed to P.W.13 for investigation. P.W.13 during investigation examined the witnesses including the victim and recorded their statements under Section 161 Cr.P.C. He also made prayer for 3 recording the statement of the victim by the Magistrate and accordingly statement of victim was recorded by an Executive Magistrate (P.W.6). On February 2, 1989 victim died in the hospital and as such Howrah P.S. UD Case No. 44 dated February 2, 1999 was started. On the prayer of the investigating officer section 302 IPC was added. Subsequently, on transfer of P.W.13 case diary was handed over to P.W.11 for further investigation who then after completion of investigation submitted charge sheet against the appellant and other accused persons under Section 302 of the Indian Penal Code.
On the same day, P.W.9 made inquest over the dead body of the victim in presence of a 'Dom' and constable and prepared inquest report (Ext.4) and thereafter sent the dead body for post mortem examination. On the same day, P.W.10 held postmortem examination over the dead body of the deceased Jharna Das and during examination he noticed that the whole body of the deceased except his scalp and scalp hair were burnt and the doctor opined that death was due to shock as a result of burn which was ante-mortem in nature but reserved his further opinion pending chemical examination report.
On February 27, 2004 charge under Section 302/34 IPC was framed against the appellant as also against the accused Utpal @ Buro Das, Pratap Das @ Puta and Kalpana Das and on their pleading not guilty trial commenced. 4
Prosecution to prove the case examined 13 witnesses and also produced and proved the FIR, medical reports, inquest report, PM report, dying declaration etc. and thereafter on completion of trial and after examination of the appellant and the other accused learned trial judge passed the impugned judgment.
Mr. Suman De, learned advocate appearing for the appellant submitted that judgment, order of conviction and sentence is not sustainable in law as the exact cause of death of the victim could not been established due to failure of the prosecution to produce the chemical examination report and no notice could be taken on the PM report as the same was a xerox copy. He further submitted that from the statement of the doctor, P.W.12, it was evident that victim was not in a position to speak and as such he could not collect the history of her injury. According to Mr. De, P.W.3, husband of the victim, is a post occurrence witness and as such his evidence can not be relied on. He also submitted that examination of the appellant and the accused under Section 313 Cr.P.C. was not done properly and as such the case be remanded back for fresh examination under Section 313 Cr.P.C.
Learned advocate appearing for the State supported the order of conviction and sentence upon the appellant and submitted that prosecution case has been proved by the ocular evidence of P.W.3, husband of the victim, 5 and the dying declaration the victim made before the doctor as also Magistrate in presence of P.W.7 and P.W.8. According to the learned advocate appearing for the State, cause of death of the victim was due to burn injuries which has duly been proved by the P.M. doctor and non production of the original P.M. report or the inquest will not make the prosecution case doubtful as both the doctor who conducted P.M. examination and prepared report and the police officer who held inquest and prepared report have proved the copies of those reports prepared by them.
We have considered the submissions of the learned advocates appearing for the respective parties and have perused the evidence and documents on record to consider the propriety of the impugned judgment.
P.W.1 is the brother of the deceased Jharna Das and the FIR maker. He is a post occurrence witness. He has deposed that in the night of 30th January, 1999 he was informed by the local boys that his sister Jharna, the victim, sustained burn injuries and was admitted in Howrah General Hospital. Accordingly, he went to the hospital and found extensive burn injuries on the person of his sister but she was able to speak. On enquiry his sister told him that her elder brother-in-law namely the appellant herein, after pouring kerosene oil on her person set her on fire by lighting a match stick. His sister was alive for two days and during that period he regularly attended her. He has 6 also deposed that the victim made a dying declaration before the Magistrate in his presence and the Magistrate after recording such statement read over the same to the victim but the victim could not sign because of burns but he signed. (identified Ext.2 to be his signature on the statement). He identified the appellant, his wife and sons in course of his examination before court. He was cross-examined by the defence and during cross-examination he stated that husband of the victim had differences and trouble with the appellant over residence of their married sister in the house.
P.W.2, sister-in-law of the victim, has deposed that she was residing with her husband in the same house where her brothers were residing but in a separate mess. According to her, in the night of Sitala Puja at about 12.00 while she was at Bandhaghat, somebody of the locality informed her about some trouble in their house. She rushed to the house and noticed that the appellant and his sons were dismantling doors and windows of the rooms of her brother, P.W.3, and wife of the appellant was encouraging them. She resisted for which they assaulted her. She lost her consciousness due to assault and after regaining consciousness she heard that appellant and his wife poured kerosene on the person of the victim and thrown a lighted matchstick at her as a result she got fire and was removed to the hospital. She rushed to the hospital and found the victim admitted there but she was conscious and was speaking. But after two days, victim succumbed to the burn 7 injuries at the hospital. Victim narrated the incident to the doctor and others. During cross-examination she admitted that her brothers have dispute and trouble between them over her staying in her father's house. She also stated during cross that victim got electric connection in her portion of the room and such connection was extended to the portion of the appellant and over the electricity charges victim had dispute and trouble with the appellant. She, however, admitted that she did not see pouring of kerosene oil or lighting of matchstick to the victim and she only found the victim on rickshaw van but she had no conversation with the victim. She also admitted that she had not been to the place where the victim was admitted nor can say who met the victim in the hospital. She also failed to say the name of the person from whom she came to learn that kerosene was poured on the victim and the lighted matchstick was thrown at her. Admittedly, she is not the witness to the incident of pouring of kerosene oil or lighting of matchstick to the victim nor she had any such conversation with the victim over such incident. So the statement of this witness that she heard that appellant and his wife poured kerosene on the person of the victim and threw a lighted matchstick at her as a result of which she caught fire is hearsay one.
P.W.3 is the husband of the victim. He has deposed that on the relevant night there were some exchange of words between him and the appellant and as such appellant, his son and wife assaulted him by fists and blows after entering into his room and breaking open the doors. His wife, the victim, who was in Sitala Temple was informed by the local people and accordingly she 8 rushed to the house. She was also assaulted by the appellant, his sons and wife and thereafter appellant poured kerosene on his wife Jharna and threw a lighted matchstick at her as a result she was burnt. He then tried to rescue her and as such he also received burn injuries. His wife was then removed to the hospital by the local people and he went to the P.S. where he found wife of the appellant. Police then asked him to go to the hospital. Accordingly, he went to hospital where he was admitted and was discharged after four days. He has further deposed that three days after his admission in the hospital he came to know that his wife had succumbed to the burn injuries. He was cross- examined by the defence at length but his evidence remained unshaken and nothing came out contrary to his statements-in-chief. It has come out during cross-examination that there was dispute with the appellant over electrical connection as also landed property and on the relevant night victim was in the Sitala Temple and on hearing trouble at the house she came and was assaulted. Defence by putting suggestion to this witness tried to prove that he caused burn to the victim and falsely implicated the accused persons which he denied. On the relevant night he also sustained burn injuries and had to be hospitalized. This has found corroboration from P.W.5 and P.W.12, the doctors who treated him as also P.W.13, investigating officer who during investigation examined him in the hospital.
P.W.4 was declared hostile by the prosecution as he did not support the prosecution case.
9
P.W.5 is the medical officer who attended the victim in the emergency department at the Howrah District hospital on the relevant night. According to him, on the relevant night victim was brought there with 100% burn injuries and she reported to him that she received the burns injury by force by Kanu Das, Buro Das, Puto Das and Rabi Das following a quarrel between her husband and those persons by pouring kerosene oil and by putting fire on her body. She was admitted under Dr. P.D. Mukherjee (P.W.12) in female surgical ward and the nature of injury was noted as unpredictable, serious and grave and the signature of the patient could not be obtained for 100% burn injuries. After examination he prepared injury report (Ext. 3). According to him, the injury was homicidal in nature and was sufficient to cause her death. Subsequently, he was recalled by the prosecution and on recall he specifically stated that just after admission of the victim Jharna Das, he recorded her statement (Ext.8) in presence of his staff nurse on duty and she stated to him that at 00.30 a.m. her bhasur, his wife, his sons assaulted her as she went to rescue her husband and they set fire to their house and assaulted her children and poured kerosene on her person by force and thereafter lit fire. He was cross-examined by the defence and during cross-examination he clearly stated that the patient with 100% burns shall be able to speak for sometimes after the burn. He even clarified that 100% burns was related to the skin and not in respect of the internal organ. He, however, admitted that he has not written in certificate, on the injury report, that the patient was mentally or physically sound to make any statement but specifically stated that to ascertain the 10 mental and physical soundness he interrogated the patients generally. He did not agree to the defence suggestion that patient with 100% burn will lose control over herself and/or that in case of 100% burn the patient will be incapacitated in body and mind and will have no capacity to make any statement. He admitted that he did not obtain signature or LTI of the patient Jharna Das nor append any explanation for the same. He also admitted that he did not obtain signature of any nurse or hospital staff or any independent person on the report. He also admitted that he recorded the statement in his own word on the basis of the disclosure made by the patient but did not agree to the defence suggestion that no statement was made by the patient before him and he noted the history of the patient according to the information received from the patient party.
P.W.12, Dr. Pabitra Dev Mukherjee, has deposed that on January 31, 1999 at 00.55 a.m. victim Jharna Das was admitted in the female surgical ward under him with burn injuries. He examined the patient and noticed 90% burn injuries. Her general condition was very low and she expired on 2nd February, 1999 at 6.20 a.m. He also stated that patient was attended by Dr. Murari Mohan Koley (P.W.5) in the emergency when she was brought there. He identified the bed head ticket (Ext.6) of the patient. During cross-examination he clearly stated that the patient with 90 % burn injury goes into crucial coma and will be shrinking but clearly stated that patient may speak even with 90% burn injuries. He admitted that he had no conversation with the patient nor he tried to know the history of burn from her.
11
P.W.6 is the Executive Magistrate who recorded the statement of the victim Jharna Das on February 1, 1999 at the Howrah General Hospital. He has deposed that patient was identified by Dr. T. Banerjee, M. O. Surgical and he interrogated the patient and found her feeble and feeling pain. Victim then made statements (Ext.2a) before him which he recorded after observing all formalities in presence of one Laxman Bonik, Swarup Pathak, A.S.I. Pabitra Ranjan Basu, Dr T. Banerjee and Dhananjoy Das and thereafter read over the statement to the patient but she was not able to put her signature or LTI in the statement. During cross-examination by the defence he admitted that he did not record the statement in verbatim but recorded in English and that patient did not make a statement in English. He also admitted that he did not note in the statement that he examined the patient regarding her soundness and physical and mental fitness. He also admitted that he did not get any certificate by the doctor that the patient was mentally and physically fit and sound to make any statement. But he denied the deffence suggestion that the statements recorded by him was not the statement of the patient.
P.W.7, an A.S.I. of police has deposed that Executive Magistrate recorded the statements of the victim at the Howrah General Hospital in between 12.30 and 1.00 hrs. at noon and he signed on the statement as witness. He identified his signature (Ext.2/b) on the statement. P.W.8,a constable, has also has deposed that Executive Magistrate (P.W.6) recorded the statements of the victim at the Howrah General Hospital and he signed on the statement as witness. He too identified his signature (Ext.2/c) on the statement. 12
P.W.9 held inquest over the dead body of the victim and prepared a report (Ext.4). P.W. 11 and P.W.13 are the investigating officers. P.W.13 admitted that he did not seize any kerosene apparatus nor sent anything to chemical analysis to ascertain whether there was kerosene or not nor seize any wearing apparel of the victim. P.W.11 admitted that Mrityunjoy Das stated to him that his wife had been to Sitala Mandir but did not tell him that the appellant, his sons and wife entered his room by breaking open the door or that his wife was informed by a local people and she rushed to the house and Arati (P.W.2) was assaulted by the accused persons.
P.W.13 is the police officer who took up investigation of the case at first. According to him he visited the place of occurrence, examined the victim in the hospital as also the witnesses and recorded their statements under section 161 Cr.P.C., made prayer for recording the statement of victim by the Magistrate, arrested the appellant and other accused forwarded them to court, made prayer for adding Section 302 IPC for the death of the victim and subsequently on his transfer made over case diary to the inspector-in-charge. During cross he admitted that he did not seize any kerosene apparatus nor sent anything to chemical analysis nor seize any wearing apparel of the victim.
P.W.11 is the investigating officer, who after completion of investigation submitted charge sheet against the appellant and other accused persons. He collected the xerox copy of post mortem report as also the xerox copy of inquest report as he was not able to trace out the original, sent visera for chemical 13 examination but could not collect the report. He denied the defence suggestion that without proper investigation he submitted charge sheet against the appellant and other accused persons.
Thus from above, it was evident that in the night of 30th/31st January,1999 victim sustained burn injuries on her person at her husband's house at 45,Tripura Roy Lane,P.S. Golabari, Hospital for which she had to be hospitalized at the Howrah District hospital with 100% burn injuries on the same night where she finally succumbed to her burn injuries on February 2, 1999. It has also come out from the evidence of P.W.5, P.W.12 and P.W.13 that on that night P.W.3, husband of the victim, also sustained burn injuries for which he had to be hospitalized and was there. Both P.W.2 and P.W.3 have spoken about strained relation between the appellant and the victim over the electricity charges, stay of P.W.2 in the house and incident of quarrel between the appellant and his family members with P.W.3 on the relevant night. Save and except P.W.3 none of the witnesses examined by the prosecution nor even P.W.1 or P.W.2 are the witnesses to the occurrence of pouring of kerosene oil on the person of the victim and setting her on fire. The entire case of the prosecution, as it appears, is based on the evidence of P.W.3 and dying declaration of the victim. Be that as it may, it is a settled proposition of law of evidence that examination of any particular number of witnesses is not required for proving the prosecution case and reliance can be placed on the solitary witness, if the court comes to the conclusion that the said statement is true and correct version of the case of prosecution. It is true that P.W.3 is the 14 husband of the victim and interested witness but only for that reason his evidence can not be brushed aside and disbelieved. Furthermore, time and place of occurrence does not demand presence of any outside eye witness to the crime and since both the appellant and P.W.3 are brothers naturally other brothers and their families avoid taking either side. It is evident from the evidence of above injured eye witness that he had fully corroborated the prosecution case and his statements-in-chief remained unshaken during cross- examination and nothing was brought on record to discredit him.
Now with regard to the dying declaration, it is well-settled that the significance of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone and every motive to falsehood is silenced and such declaration was made in a fit state of mind and was not as a result of either tutoring or prompting or a product of imagination. Reference may be made to the decision of a Constitution Bench in the matter of Laxman vs. State of Maharashtra, reported in (2002) 6 SCC 710.
It is now well settled proposition of law that that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable. It is also well known that in a case where inconsistencies in dying declarations, in relation to the active role played by one or the other accused persons, exist, the court shall lean more towards the first dying declaration 15 than the second one. Reference may be made to the decision of Ranjit Singh & Ors. vs. State of Punjab, reported in (2006) 13 SCC 130.
In the case at hand we find that P.W.1 has made the claim of dying declaration by the victim to him when he visited her and also to the Magistrate in his presence. According to P.W.1, on getting the news of sustaining burn injuries of his sister and her hospitalization, he went to the hospital and found extensive burn injuries on the person of his sister but she was able to speak. On enquiry his sister told him that her elder brother-in-law (appellant) after pouring kerosene oil on her person set her on fire. He further deposed that his sister made a dying declaration before the Magistrate in his presence and the Magistrate after recording such statement read over the same to the victim but she could not sign because of burns. He identified his signature on the statement (Ext.2). P.W.6, Executive Magistrate, has also deposed that on January 1, 1999 he went to the Howrah General Hospital as per order of S.D.O. Howrah and recorded the statement of the victim (Ext.2a) after observing all formalities at the Howrah General Hospital from 12.30 to 1 hour at noon in presence of P.W.1, P.W.7, P.W.8, Dr. T. Banerjee and Dhananjoy Das and after recording the statements he read over the same to the victim but she was not able to put her LTI or signature. Admittedly, in the statements he did not record that he examined the patient regarding her physical fitness and mental soundness nor there was any certificate of the doctor to that effect but surprisingly he was challenged by the defence that the victim was not physically fit or mentally sound to make any statement. P.W.7 and P.W.8 are 16 the witnesses to the recording of the statements of the victim. Both of them have corroborated P.W.6. Interestingly, they were also not challenged by the defence that victim was not in position to make any statements and/or that P.W.6 did not record any statement of the victim. P.W.13, the investigating officer, has also deposed that after the case was endorsed to him for investigation he visited the hospital and met with the victim there and interrogated her and recorded her statements under section 161 Cr.P.C. He too has deposed that he made prayer for recording statements of the victim by a Magistrate and P.W.6, the Executive Magistrate, recorded the statements of the victim.
P.W.5, the doctor who attended the victim first on the relevant night in the emergency department, has also deposed that victim was brought in the hospital with 100% burn injuries and she made statements before him about how she received burn injuries. He identified the injury report (Ext.3) containing the reported statements of the victim. He also deposed that the victim was then admitted in the surgical ward and as it was a case of burn injury, so just after admission he recorded statements (Ext.8) of the victim in Bengali in presence of staff nurse on the basis of the disclosure made by the victim. Ext.8 shows that it was recorded on the very night at 1.00 a.m. According to P.W.5, victim stated to him that on the relevant night at 00.30 a.m. her bhasur (appellant), his wife, his sons assaulted her as she went to rescue her husband and they set fire to their house and assaulted her children and poured kerosene on her person by force and thereafter lit fire. During 17 cross-examination, he clearly stated that the patient with 100% burn shall be able to speak for sometimes after the burn. He even clarified that 100% burn was related to the skin and not in respect of the internal organ. He also admitted that he had not written on certificate or in the injury report that the patient was mentally or physically sound to make any statement nor obtained any signature of any nurse or hospital staff on the report but specifically stated that to ascertain the mental and physical soundness he used to interrogate the patients generally. It is true that there was no certification of the doctor as to the fitness of the mind of the victim either in the statements recorded by the Magistrate or by the doctor but that itself will not make the dying declaration unacceptable in view of the specific claim of P.W.5, the doctor, and P.W.6,the Executive Magistrate that the victim was mentally fit and sound to make statements and after ascertaining the same they recorded her statements. P.W.1 and P.W.13 who visited the victim also found that the victim was in a position to speak and she even narrated them the incident. P.W.10 during postmortem examination found the victim's whole body burnt except scalp and scalp hair and also opined that a patient in such condition can speak. So there was no reason to disbelieve the version of the above witnesses that the victim was mentally sound and fit to make statements and she consciously made her dying declaration. Nothing was also brought on record from the side of the defence that the statements of the victim so recorded by the doctor and the Executive Magistrate was the result of any tutoring or prompting. Under the circumstances, there was no scope of any doubt with regard to correctness of 18 such dying declarations and as such the learned Court below relied on such dying declarations.
Both the dying declarations (Exts. 2/a and 8) as also the injury report (Ext.3) speak of incident of quarrel and scuffling on the relevant night by the appellant, his wife and sons with P.W.3, husband of the victim, and when the victim tried to rescue her husband she was also assaulted and set on fire after pouring kerosene oil. It appears from both the dying declarations that the victim had held appellant, his wife and sons responsible for setting her on fire by pouring kerosene oil resulting in her death. It is silent about actually who poured kerosene oil and lighted the matchstick. P.W.3, husband of the victim, and the eye witness to the occurrence has specifically stated that it was the appellant who set fire to his deceased wife after pouring kerosene oil. P.W.1, FIR maker and witness to the dying declaration (Ext 2/a) too has deposed that his sister told him that her elder brother-in-law (appellant) after pouring kerosene oil on her person set her on fire. Taking into account the same learned court below came to the finding that prosecution has been successful to prove the charge only against the appellant beyond all reasonable doubt. Admittedly, State has not preferred any appeal against the acquittal of wife and sons of the appellant.
With regard to the irregularity in examination of the accused persons under section 313 Cr.P.C., it is settled law that as part of fair trial, section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to 19 give his explanation regarding the circumstances appearing against him in the evidence adduced by the prosecution. It is not necessary to put the entire prosecution evidence but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. Any omission to put any material circumstances to the accused does not ipso facto vitiate the trial and the accused must show prejudice and that miscarriage of justice had been sustained by him. Admittedly, such plea of prejudice is raised before this court for the first time. However, from the question put to the appellant during their examination under section 313 Cr. P. C., we find that the circumstances which were adverse to the appellant was duly put to him and he duly gave reply and set up his defence. The only irregularity, as it appears was that questions were clubbed together though incriminating circumstances appearing against him were duly put to him. Furthermore, appellant faced the trial and evidence of the witnesses were recorded in his presence, so he was very much aware of the incriminating circumstances appearing against him. In view of the above, the contention of the appellant does not lead us to interfere with the impugned judgment on this score.
Therefore, taking into consideration the facts and circumstances on the basis of which the impugned judgment was passed, we are of the opinion that the impugned judgment does not require our interference on the above grounds in view of the settled propositions of law as discussed herein above. 20
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.
A copy of this judgment along with the Lower Court Records may be sent down to the learned Trial Court forthwith.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Jay Sengupta, J.)