CRIMINAL APPEAL 29 of 2014 on 31 July 2014

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTIONAPPELLATE SIDE

Present:

The Hon’ble Justice Joymalya Bagchi

And

The Hon’ble JusticeAjay Kumar Gupta

C.R.A. 528 of 2014

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CRAN 2 of 2021

Rajkamal Das Bairagya Vs. State of West Bengal Joymalya Bagchi, J.:- Appellant has assailed judgment and order dated 31.07.2014 & 01.08.2014 passed by the learned Additional Sessions Judge, Bolpur, Birbhum in Sessions Trial No. 2(April) 2014 arising out of Sessions Case No. 29 of 2014 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and directing him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-.

Prosecution case as alleged against the appellant is to the effect that on 18[th] Baishak, 1420, Kumkum, the deceased, was married to the appellant as per Hindu rites and customs. Rs. 1,25,000/- in cash and 7 bhories of gold and other articles were given as dowry as per demand. One month after marriage she was subjected to mental and physical torture for another sum of Rs. 60,000/- to buy a motor cycle. She narrated the incidents of torture to her mother. Her father Buddhadev Das Bairagya (PW 1) went to her matrimonial home and requested her husband, i.e., the appellant and other in-laws not to torture her. He also assured that he would meet the additional demand by the month of Agrahayan. On Lakshmi Puja day the appellant and in-laws misbehaved with Kumkum. In the night her husband poured kerosene oil and set her on fire. Family members of Kumkum were informed that she had committed suicide. They proceeded towards her matrimonial home. Enroute they heard the victim had been taken to Burdwan hospital. She had suffered 80% burn injury and was admitted to hospital.

Written complaint was lodged by PW 1 at police station resulting in registration of Bolpur Police Station Case No. 366 of 2013 dated 19.10.2013 under sections 498A/326/307/34IPC against the appellant and other in-laws. In the police station the victim made a statement before Dr. Abhidip Dey (PW 11), staff nurses Pranati Sarkar (PW 8) and Sridevi Roy Majumder (PW 9). Investigating Officer SI Nirmal Chakraborty (PW 14) was also present at the time of recording statement. After five days, she succumbed to her injuries. Section 302 IPC was added to the FIR.

Charge sheet was filed against the appellant and charge was framed under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 14 witnesses and exhibited the dying declaration of the victim, Ext 3/2. Defence of the appellant was one of innocence and false implication. It was his specific defence on the fateful day there was a quarrel between the victim and her mother, PW 2. Over telephone, her mother incited the victim to commit suicide. As a result, she committed suicide. Appellant examined himself as DW 1 to probabilise his defence.

Upon assessing the evidence on record, learned trial Judge by the impugned judgment and order dated 31.7.2014 and 1.8.2014 convicted and sentenced the appellant, as aforesaid.

Mr. Datta for the appellant argues it is unclear whether victim was conscious and in a fit state to make statement before the medical officer. Victim did not disclose the cause of burn injury to her mother, PW 2. Truthfulness of the dying declaration is doubtful. Defence has probabilised a case of suicidal death. Hence, prosecution case ought not be believed and appellant is entitled to an order of acquittal.

Ms. Sinha with Mr. Mitra for the State submits victim was subjected to torture over demand of dowry. On Lakshmi Puja day her husband i.e appellant assaulted her and set her on fire. She was shifted to Burdwan hospital. Doctor has stated she was conscious, alert and in a fit state to make statement. Defence plea of suicidal burns was belatedly raised during trial. No suggestion was given to P.W 2 during cross

examination that she incited her daughter to commit suicide. In-laws of the victim lady tried to protect the appellant by making out a false case of suicide. Prosecution case is proved beyond doubt and appeal is liable to be dismissed.

PW 1 Buddhadev Das Bairagya and PW 2 Padmabati Das Bairagya are the parents of the victim housewife. Both the witnesses stated victim was subjected to torture by the appellant and in laws over demand of Rs. 60,000/-. Appellant wanted the money to purchase a motor cycle. On Ultorath, PW 1 went to the matrimonial home of the victim and requested the appellant not to torture his daughter. He assured he would pay the demanded sum by Agrahayan. On 1[st] Kartick 1420 BS, victim was set on fire. Her mother in-law informed she had committed suicide. They rushed to the matrimonial home. They were informed victim had been sent to Burdwan Medical College & Hospital. They went to the hospital. PW 1 stated her daughter informed that the appellant had set her on fire. He lodged written complaint.

PW 2 has substantially corroborated her husband.

PW 3 Prakash Das Bairagya, brother of PW 1 also accompanied them to the hospital. He stated he came to know appellant had set Kumkum on fire.

PW 5 Charan Das Bairagya is the uncle of the deceased. He also stated that the victim told him that she had been set on fire by her husband.

PW 10 Abhijit Goswami was attached to Bolpur SD Hospital as surgeon. He deposed on 19.10.2013 Kumkum was admitted under him. He found she had 80% burn injury. She was asking for water and was drowsy. He referred her to Burdwan Medical College & Hospital for better management.

PW 11 Dr. Abhidip Dey recorded the dying declaration of Kumkum at Burdwan Medical College & Hospital. He deposed on 20.10.2013 he found Kumkum was alert, conscious and properly oriented. She made the following statement :

“My husband used to assault me often without any specific reason. On the day before yesterday that is on the night of Laxmi Puja he assaulted me. The next day my husband took me to the roof and assaulted me. Then he poured kerosene on me and set fire. My father in law and mother in law came there. Later they and people of that locality wrapped me with blanket. Then took me to the hospital.”

He recorded the aforesaid statement which was marked as Ext. 3/2. Kumkum put her LTI on the statement. Statement was taken in presence of staff nurses, namely, Pranati Sarkar (PW 8), Sridevy Roy Majumdar (PW9) and investigating officer Nirmal Kr. Chakraborty (PW 14). PWs 8 and 9 corroborated PW 11 and proved their signatures on the dying declaration.

PW 12 Dr. Debashis Sarkar is the post mortem doctor who held post mortem examination over the body of the victim. He opined cause of death was due to effects of burn injuries, ante mortem in nature. He proved the post mortem report, Ext 4.

PW 14 Nirmal Chakraborty is the investigating officer. He deposed during investigation he recorded statements of witnesses. He approached the Superintendent of Burdwan Medical College & Hospital for recording statement. Statement of the victim was recorded by PW 11 in his presence. He arrested the appellant. He submitted charge-sheet.

Mr. Datta submits PW 10 examined the victim first at Bolpur SD Hospital. He found her drowsy. Under such circumstances, it is unlikely that the victim would be in a fit state to make statement to PW 11 on the next day. He further submits PW 2, mother of the victim, talked to her at the hospital. She is, however, silent with regard to any dying declaration made by her daughter. Dying declaration is also not mentioned in the FIR. PW 5 also did not state victim made dying declaration to him before the police. These facts improbabilise the dying declaration made by the victim to doctor, PW 11.

Dying declaration, if voluntary and truthful, can be the sole basis of conviction. PW 11 was the Superintendent of Burdwan Medical College & Hospital. Victim was admitted in the said hospital with burn injuries on 20.10.2013. He recorded the dying declaration of the victim. He stated the victim was mentally alert, conscious and cooperative. Opinion of the medical officer with regard to consciousness of the victim and her ability to speak is of paramount importance. I am unwilling to discount the opinion of the doctor on the score it is not endorsed on the dying declaration itself.

It is argued PW 10 found her drowsy on the earlier day, i.e, 19.10.2013. Hence, it is highly improbable she would be in a fit state to make statement on the next date. Victim had suffered burn injuries on 19.10.2013. On that day, she was taken to Bolpur SD Hospital where she was examined by PW 10. Thereafter she was admitted to Burdwan Medical College & Hospital for better treatment. Due to medication and better treatment, on the next day her condition improved. She was found to be alert and cooperative by PW 11, Dr. Abhidip Dey, Superintendent of Burdwan Medical College & Hospital. He recorded her dying declaration. Dying declaration was recorded by the doctor (PW 11) in presence of staff nurses PWs 8 and 9. They corroborated PW 11 and proved their signatures on the dying declaration. That apart, other relations of the victim namely PWs 3 and 5 stated victim told them that she had been set on fire by her husband. FIR was lodged prior to the recording of dying declaration by Dr. Abhidip Dey. Hence, it does not find place in the said document.

In the light of the aforesaid evidence on record I am of the opinion there is clear and convincing evidence that the victim was conscious and in a fit state of mind to make dying declaration.

Her version with regard to manner in which she was set on fire is supported by the post mortem doctor (PW 12) who deposed the victim died due to ante mortem burning injuries. Hence, the dying declaration of the victim is truthful.

Appellant took a desperate plea that the victim had committed suicide on the urgings of her mother. He examined himself as DW 1. He deposed on Lakshmi Puja day victim had a quarrel with her mother. Over telephone, her mother had incited her to commit suicide. As a result, she committed suicide. This version was belatedly raised by the appellant during trial. Even no suggestion was given to the mother of the victim (PW 2) that she had a quarrel with her daughter on the Lakshmi Puja day and had incited the latter to commit suicide.

On the other hand, evidence is forthcoming the in-laws of the victim gave false information to PW 1 that his daughter had committed suicide. This prompted PW 2 to question her daughter why she had done so. Her daughter kept mum as she had been set on fire by her husband. Defence plea of suicide is clearly false and was fabricated to protect the appellant from legal punishment.

In the light of the aforesaid discussion, I am of the opinion prosecution case is proved beyond reasonable doubt. Conviction and sentence of the appellant is upheld.

Appeal is, accordingly, dismissed.

In view of disposal of the appeal, connected applications, if any, also stand disposed of.

Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of section 428 of the Code of Criminal Procedure.

Lower court records along with copies of this judgment be sent down at once to the learned trial Court as well as the Superintendent of Correctional Home for necessary compliance.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.

I agree.

(Ajay Kumar Gupta, J.)

(Joymalya Bagchi, J.)

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