Calcutta High Court (Appellete Side)
Srikanta Modak & Anr vs The State Of West Bengal on 22 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 470/Aloke/S.Das
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 476 of 1990
Srikanta Modak & Anr.
Versus
The State of West Bengal
Amicus Curiae : Mr. Ranadeb Sengupta
For the State : Mr. Arun Kr. Maiti, Ld. Addl. P.P.
Heard on : 22.11.2017
Judgement on : 22.11.2017
Joymalya Bagchi, J.:
Mr. Ranadeb Sengupta, learned advocate is requested to appear in this matter as amicus curiae and assist this Court.
Mr. Arun Kr. Maiti, learned Additional Public Prosecutor is requested to appear on behalf of the State.
The appeal is directed against the judgement and order dated 17th September, 1990 passed by the learned Additional Sessions Judge, 1st Court, Burdwan, in Sessions Trial No. 39 of 1990 arising out of Sessions Case No. 106 of 1990 convicting the appellants for commission of offence punishable under Section 302/34 of the Indian Penal Code and sentencing the appellants to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/- each in default to undergo rigorous imprisonment for one year more.
The prosecution case, as alleged, against the appellants is to the effect that the victim Hiru Modak was married to appellant no. 1, Srikanta Modak according to Hindu rites and customs. Appellant no. 2 is the brother-in-law of the victim. At the time of marriage the father of Hiru gave dowries but he was unable to give one necklace as promised and on such score she was subjected to mental and physical torture by the appellants and their mother Namita (since deceased). She informed such fact to her parents and ultimately the necklace was given to the accused persons. However, the torture continued. On 14.07.1989 one Harish Chandra Ghosh informed Ranjit Modak, the uncle of Hiru that she had been severely burnt by the appellants and her mother-in-law. On receiving such information Ranjit and others went to Kusumgram Bus stand in order to go to the house of the accused persons at Sonadanga. At about 8.30 p.m. a truck reached to Kusumgram Bus Stand. They found some villages of Sonadanga had come in the truck along with the victim. Appellants Srikanta and Asoke along with their mother, Namita were also in the truck. Ranjit met the victim in the truck. The victim was in a capacity to speak and stated that the appellants and her mother-in-law set fire on her pouring kerosene oil on her body and gagging her mouth. The victim was taken to Burdwan Hospital. At Dewanganj the victim collapsed and when they reached Burdwan Hospital the victim was declared dead. The accused persons tried to escape but they were arrested.
On the complaint of Ranjit Modal, first information report being Monteswar P.S. case no. 511 dated 15.07.1989 under Section 302/34 of the Indian Penal Code for investigation against the appellants and their mother Namita (since deceased). In conclusion of investigation, charge- sheet was filed against them under Section 304/34 of the Indian Penal Code. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 1st Court, Burdwan for trial and disposal. Charges were framed under Section 302/34 of the Indian Penal Code against the appellants. They pleaded not guilty and claimed to be tried.
In the course of trial prosecution examined nine witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication.
In conclusion of trial, the trial judge by judgment and order dated 17th September, 1990 convicted and sentenced the appellants, as aforesaid.
Mr. Ranadeb Sengupta, learned counsel appearing as amicus curiae submitted that there is no certificate that the victim was conscious and was in a position to make the dying declaration. He submits that the dying declaration made to P.W. 1 and 6 have not been put to the accused persons during their examination under Section 313 Cr.P.C. He accordingly prayed for acquittal of the appellants.
Learned counsel appearing for the State submitted that the evidence of the prosecution witnesses clearly show that the victim was conscious and had made dying declaration not only before P.Ws. 2 and 3 but also before P.Ws. 1 and 6, who are independent witness. He accordingly, prayed for dismissal of the appeal.
Let us see whether dying declarations made by the victim are reliable or not.
P.W. 1 is a member of the Garsonadanga village. He deposed that the victim was married to appellant no. 1 three/four years ago. His house is intervened by a road from that of the accused persons. He went to inspect his field in the afternoon after one year ago. He heard from one Harish Ghosh that the wife of Sreekanta had suffered burn injuries. Getting the information he went to the house of Sreekanta. He found the victim was lying on the courtyard of the house in severely burnt condition. The victim stated to him that her mother-in-law, husband and brother-in-law had set her on fire by gagging her mouth. Mother-in- law was present when the victim disclosed it to him. Sreekanta and Ashoke were not present in the house when he went there. They came there after a while accompanied by several persons. Namita was trying to escape. The villagers detained her. They brought the victim in a cot to the pucca road. A truck came. They took the victim in the truck to Kusumgram. Some villagers including the witness were also in the truck. They handed over the charge of the victim to her uncles. They took the victim to Burdwan hospital. Ashoke, Namita and Sreekanta also went to Burdwan in the said truck. In cross-examination, he stated that he was elected as member of the gram panchayat in 1988. Ranjit Modok (P.W.2), was upa-prodhan of Kusumgram, is the uncle of the victim. He did not ask Namita how the victim got burnt. P.W. 2 is the uncle of the victim and the de facto complainant in the instant case. He stated that the victim was married with Sreekanta Modak of Gar Sonadanga on 26th Baisakh, 1393, B.S. At the time of marriage, her father could not give necklace as promised by him. Due to failure to gift the necklace the victim was ill treated by her husband, brother-in-law and mother-in-law. He heard about the torture from the victim when she came of her father's place. Subsequently father of the victim gave the necklace to the appellants. On 29th Ashar, 1396 B.S. in the evening one Harish Ghosh informed him that the victim had been set on fire by her husband, brother-in-law and mother-in-law. He went along with others to the Kusumgram bus stand to go to the matrimonial home of the victim. At 8.30p.m. a truck carrying P.W.1 and some other villagers came to Kusumgram bus stand. The victim was in that truck. Accused persons viz. husband of the victim, brother-in-law and mother- in-law were also in the truck. He found the victim in burnt condition but she had capacity to speak. On his query, the victim stated that his husband, bother-in-law and mother-in-law had set on fire by pouring kerosene oil after gagging her mouth. They shifted the victim to Burdwan hospital in the truck. The villagers of Gar sonadanga left from Kusumgram bus stand. Doctor at Burdwan hospital declared the victim as dead. The dead body was kept in the hospital authority. In the morning the accused persons were produced at Monteswar Police Station. He lodged written complaint marked as exhibit 1. He signed on the complaint marked as exhibit 1/1. Police started a criminal case. He accompanied the police to the house of the accused persons. The police recovered a barrel of kerosene oil, one blanket, one match box, one piece of cloth, one saya under a seizure list. In cross-examination, he admitted that he is the upa-Pradhan of Kusumgram Panchayat. He admitted that Nepal Ghosh was known to him but he did not know that he was a member of gram panchayat. The marriage of the victim with Sreekanta was a registered one. Harish Ghosh was also known to him. P.W. 3, Naba Kumar Modak, is another uncle of the victim. He has corroborated the evidence of P.W. 2.
P.W. 4, Sunil Kumar Modak, is the father of the victim. He deposed that the victim was married to Sreekanta. Ashoke is the brother-in-law of the victim. He gave dowry. He could not give a necklace to his daughter at the time of marriage. Due to his failure to gift the necklace, her husband, brother-in-law, and mother-in-law used to assault the victim. A son was born to the victim who is aged about three years. Victim disclosed to him about the ill-treatment at her matrimonial home. On the date of incident he was at Memary. He returned to Kusumgram at 9.p.m. The victim died at Bardhaman hospital. He took delivery of the dead body.
P.W. 6 is a co-villager of P.W. 4. He stated that on the last date of Ashar, one year ago, he was present at Kusumgram market at about 7.30p.m. Nepal Ghosh of Gorsonadanga came to the tea stall where he was present. He was informed that the victim had been burnt. Getting this information he rushed to the truck standing at a distance of about 20 cubits. Nata Modak and Ranjit Modak also came to the truck. He found that the victim was in a severely burnt condition. Nata asked the victim as to who had caused the injury to her. Victim stated that her husband, brother-in-law and mother-in-law had burnt her by pouring kerosene oil on her body and by gagging her mouth with a napkin and tying her hands. They removed the victim to Burdwan in the same truck. The doctor at Burdwan hospital declared the victim as dead. The husband, brother-in-law and mother-in-law of the victim were in the same truck. They also came to the Burdwan. They kept the dead body of the victim in the hospital. The husband, brother-in-law and mother- in-law were produced at Monteswar Police Station. He was examined by the police.
P.W. 5 is the autopsy surgeon. He held post mortem examination over the dead body of the victim. He noticed the following injuries :
The body was moderately built and rigor mortis had set in all over the body.
He noticed hair, and burning of skin with blacking at different places of the body.
He noticed first degree and second degree burn injuries with blackening at places over (1) whole of (torn) and forehead (2) nose and ears; (3) whole aspects of the neck; (4) whole aspects of right upper limb; (5) whole aspect of left upper limb; (6) whole aspect of chest and abdomen; (7) whole aspects of both (illegible) and perinum; (8) whole aspects of right lower limb; (9) whole aspects of left lower limb. All injuries were fresh in nature and showed evidence of vital reaction. No other injury was detected even after careful examination and detection under hand lense.
Death of the victim, according to him, was due to burn injuries which were ante mortem in nature. In cross-examination, he stated that there is no reference to smell of kerosene oil in the post mortem report.
P.W. 7 was a police constable attached to the Burdwan police station. On that date he escorted the dead body of the victim from Burdwan hospital to morgue where post mortem of the victim was conducted.
P.W. 8 is the investigating officer in the instant case. He received written complaint from P.W 2. He drew a formal first information report marked as exhibit - 2. At the time of lodging formal first information report the informant produced the accused persons who were arrested and detained in the thana lock up. He reached Garsonadanga at 10.30a.m. The informant showed him the place of occurrence. The room was under lock and key. They prepared a sketch map with index. He seized from the room one blanket, one partly burnt printed saree, one piece of burnt cloth, one pot containing some kerosene oil, one match box with match sticks and one green saya and the seizure list is marked as exhibit-4. He identified the seized articles which were examined by the witnesses on 16.07.1989. He went to the Kusumgram with other witnesses. He collected post mortem report and submitted charge-sheet. P.W. 9 was an A.S.I. of police attached to the Bardwan police station. He enquired Burdwan Police Station U.D. Case No. 459/89 as per order of I.C. Burdwan. That U.D. case was stated about the unnatural death of one Hiru Modak. He went to the Burdwan Medical College Hospital. He examined dead body in the presence of the witnesses. He sent the dead body for post mortem examination. From the evidence of the witnesses it appears that the victim was married to the appellant no. 1 and the appellant no. 2 was her brother- in-law. Evidence has come on record that she was subjected to mental and physical torture by the appellants and mother-in-law over dowry. Finally, on 14.07.1989 P.W. 2, Ranjit Modok, uncle of the victim, received information from one Harish Ghosh that the victim had been burnt by the appellants and her mother-in-law. Thereafter, P.Ws. 2 and 3 rushed to Kusumgram bus stand to go the matrimonial home of the victim. As they were waiting for the bus, a truck carrying the victim came to the said place. P.W. 1, a member of the gram panchayat within whose jurisdiction the matrimonial home of the victim situated, was in the truck along with the accused persons. P.Ws. 2 and 3 boarded the truck and the victim informed them that she had been set on fire by the appellants by pouring kerosene oil after gagging her mouth. P.W. 6, an independent witness, was also present and heard the dying declaration. Thereafter the victim was taken to Bardhaman hospital where she was declared dead. P.W.1 who accompanied the victim in the truck to Kusumgram bus stand also deposed that when he went to the matrimonial home, the victim had told him that she had been set on fire by the appellants and mother-in-law gagging her mouth. Hence, P.W. 1 and P.W. 6 were present at Kusumgram bus stand and corroborated the evidence of P.Ws 2 and 3 with regard to the dying declaration of the victim. Hence, from the aforesaid evidence it appears that the victim made two dying declarations, one at her matrimonial home before P.W. 1 and thereafter at Kusumgram bus stand before P.Ws 2,3 and 6 that the appellants had set her on fire by pouring kerosene oil and gagging her mouth. There is ample evidence on record that the victim was conscious and was able to speak. No question was put to the autopsy surgeon P.W. 7 by the defence to improbabilise the factum of her consciousness and her capacity to make the dying declaration. Moreover, the evidence of the relations P.Ws 2 and 3 with regard to the dying declaration of the victim is corroborated by the independent witnesses P.Ws 1 and 6 and, therefore, I have no doubt in my mind that the dying declarations of the victim are found to be reliable and have been proved beyond reasonable doubt. It has been argued that the dying declaration made before P.W. 1 has not been put to the accused persons in the course of their examination under Section 313 of the Code of Criminal Procedure. I find the fact that the victim made a dying declaration had been put to the accused persons under Section 313 of the Code of Criminal Procedure and, therefore, I am of the opinion that no prejudice has been caused to the accused persons on that score. It has been argued that Harish Ghosh, who informed P.W. 1 and P.W. 3, has not been examined. In view of clear and consistent evidence of the prosecution witnesses with regard to the unfolding of the incident and the dying declarations of the victim, I am of the opinion that examination of Harish Ghosh was not necessary for unfolding of prosecution case and the prosecution case does not suffer from any infirmity on such score at all.
In view of the aforesaid discussion, conviction and sentence of the appellants are upheld. The appellants shall forthwith surrender before the trial Court to serve out their sentences. In the event they fail to do so, the trial Court shall issue appropriate coercive processes to apprehend them and commit them to custody in accordance with law.
Period of detention suffered by the appellants during investigation, enquiry and/or trial shall be set aside against the substantive sentences imposed on the appellants in terms of Section 428 of the Code of Criminal Procedure.
The appeal is, accordingly, dismissed.
I record my appreciation for the able assistance rendered by Mr. Sengupta, learned Counsel appearing as amicus curiae.
Copy of this judgment along with the lower court records be sent down to the trial Court at once for necessary compliance.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)