Dying Declaration; Sanjit Majhi Vs. State of West Bengal [Calcutta High Court, 26-08-2016]

Penal Code, 1860 – S. 302 & 498A – Dying Declaration – Acceptability of – soon after receiving burn injury the victim was shifted to hospital by accused persons – it is a strong circumstance to establish that the accused persons had no intention to kill but they wanted her survival – Trial Court disbelieved the possibility of suicidal burn on the ground that the witnesses stated that they cannot say how the victim sustained burn injury – the view expressed in the impugned judgment favouring the prosecution case against the accused is not approved – appeal is allowed extending benefit of doubt – the impugned judgment of conviction and sentence of the accused is set aside. The appellant is acquitted of the charge under Section 302,I.P.C. and he is set at liberty.

# Dying Declaration


IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

THE HON’BLE JUSTICE ANIRUDDHA BOSE AND THE HON’BLE JUSTICE SANKAR ACHARYYA

Judgment on : 26.08.2016

CRA 337 of 2010

Sanjit Majhi Vs. The State of West Bengal

For the appellant : Mr. Usof Ali Dewan, advocate. Mr. Arup Sarkar, advocate. Mr. Asif Dewan, advocate. For the state : Mr. Subir Banerjee, Ld. APP Mr. Jayanta Banerjee, advocate. Mr. Pratick Bose, advocate.

SANKAR ACHARYYA, J.

Appellant has preferred this appeal against the judgment of his conviction of the charge under Section 302 of the Indian Penal Code (in short I.P.C.) and sentence of life imprisonment with fine of Rs.5,000/- and in default of payment of fine for rigorous imprisonment of one year passed by learned Additional Sessions Judge, 4th Fast Track Court, Jangipur, Murshidabad in Sessions Trial No. 14/Feb/10 corresponding to Sessions Serial No. 71/09.

In the trial Court charges under Sections 498A/302, I.P.C. were framed against three accused persons who are the appellant and his parents Gayal Majhi and Smt. Tula Majhi alleging that they had subjected cruelty upon appellant’s wife Mandira Majhi and they had murdered Mandira Majhi setting fire on her after pouring kerosene oil on 17.03.2006 at 8:00 a.m. in their house. During trial, prosecution examined six witnesses including Mandira’s father (PW 1), mother (PW 2) and the investigating police officer (in short I.O.) as PW 6. Some documents were also produced as exhibits. The accused persons were examined under Section 313, Code of Criminal Procedure (in short Cr.P.C.). They did not adduce any evidence. In the impugned judgment, accused Gayal Majhi and Smt. Tula Majhi were found not guilty of both the charges under Sections 498 A/302, I.P.C. and they were acquitted. Appellant was found not guilty of the charge under Section 498 A, I.P.C. and acquitted but was found guilty of the charge under Section 302,I.P.C. and he was convicted and sentenced.

On 17.03.2006 at 7:30 p.m. the PW 1 Chandan Majhi lodged written FIR at Raghunathganj Police Station (in short P.S.) complaining that since after marriage of his daughter Mandira with the appellant she was tortured by appellant and his parents. On 17.03.2006 at about 8:00 a.m. accused persons assaulted Mandira and she tried to go to the house of PW 1 at which the accused persons again assaulted and abused her in filthy language. They forcibly confined her in a room and poured kerosene oil on her person. Then the appellant set fire on her with a match-stick. She sustained burn injuries on her persons. She was admitted in Jangipur hospital. The complaint of PW 1 was registered as FIR no. 75/06 dated 17.03.2006 under Sections 498A/307/34, I.P.C. The case was investigated first by PW 6 – Sub-Inspector Murali Mohan Das and then another police officer of Raghunathganj P.S. who completed the investigation and submitted charge sheet against three accused persons under Sections 498A/302/34, I.P.C. as Mandira Majhi died in Jangipur S.D. hospital on 29.03.2006.

PW 1 Chandan Majhi is an illiterate person. In his examination-in-chief he deposed against the accused persons to the effect that accused persons used to commit torture physically and mentally on Mandira since after few months of her marriage and on the fateful day at 8:00 a.m. the accused persons set fire on Mandira after pouring kerosene oil on her. She sustained burn injury. She was shifted to Jangipur hospital for treatment. She succumbed to her burn injury after 13 days of the incident. During his cross- examination he stated that the written complaint was made under the direction of village Matabbar (head man). His (PW1’s) daughter was ill-tempered and she lived peacefully with her husband and in- laws. PW 1 failed to say how his daughter sustained burn injury. He also stated that accused shifted the injured Mandira to hospital and that she was unconscious during her treatment in hospital. PW 1 submitted written complaint against accused persons out of suspicion at the instigation of his co-villagers.

PW 2 deposed to the effect that accused persons used to torture Mandira physically and mentally during her stay in her matrimonial home and they would not allow her to visit her parent’s house and that subsequently PW 2 came to know that accused persons poured kerosene oil and set fire on Mandira resulting her burn injury for which she was admitted in hospital at Jangipur. Getting such information PW 1 and PW 2 rushed to the hospital and they found their daughter in burnt condition. During cross- examination she stated that her daughter lived in her husband’s house peacefully with her in laws and that she was ill-tempered and PW 2 failed to say whether her daughter committed suicide setting fire on her persons voluntarily or accused persons set fire on her pouring kerosene oil.

PW 4 and PW 5 are co-villagers of PW 1. Excepting burn injury of Mandira and her death nothing was stated by PW 4 or PW

5. PW 6 held first part of investigation. According to him another police officer of Raghunathganj P.S. namely Madhusudan Biswas (not examined as PW) received complaint of PW 1 and registered the FIR and after death of Mandira said police officer held inquest over the dead body of Mandira and sent the dead body through challan for post mortem examination. PW 6 proved the writings of endorsement of Shri Biswas on written complaint (exhibit- 2), formal FIR (exhibit- 3), inquest report (exhibit- 5) and dead body challan (exhibit- 6) without giving explanation of non-production of said Madhusudan Biswas as a witness. Inspector-in-Charge of P.S. namely S. Banerjee (not examined as PW) endorsed the case in favour of PW 6 for investigation putting his endorsement (exhibit- 3/1). Last part of investigation was done by another police officer Shyama Prasad Saha (not examined as PW) who collected post mortem report of Mandira Majhi (exhibit- 7), made prayer for addition of Section 302, I.P.C. against accused persons and submitted charge sheet in Court. On the basis of evidence of PW 6 the post mortem report was also marked exhibit without examining the autopsy surgeon. During investigation PW 6 visited the place of occurrence and prepared a sketch map (exhibit- 4) and its index (exhibit- 4/1). He examined the available witnesses and recorded their statements underSection 161, Cr.P.C. He held raid for arresting accused persons but could not arrest them. He visited Jangipur hospital and got a dying declaration of Mandira Majhi recorded by doctor (PW 3). Due to shouldering task of proving acts of other police officials and of autopsy surgeon by PW 6, without their examination as witnesses offering right of cross-examination to accused persons even when there is no valid explanation of their non-production, it cannot be said that PW 6 is a disinterested witness of prosecution.

Only PW 3 – Dr. Alok Biswas was examined by prosecution as disinterested witness of prosecution. According to him, on 17.03.2006 at 11:20 p.m. he recorded dying declaration (exhibit- 1) of Mandira Majhi at Jangipur S.D. hospital in her conscious mind and oriented state in presence of PW 6 and staff nurse Mrs. Kakali Das (not examined as PW). It was claimed in deposition of PW 3 and in exhibit- 1 that Mandira Majhi stated before PW 3 that on 17.03.2006 at about 8:30 a.m. when she offered ‘Tari’ (homemade liquid for intoxication) to her ‘Nandai’ (husband’s sister’s husband) namely, Kali the appellant became annoyed and pouring kerosene oil on her persons set her on fire. Such incident was not complained by PW 1 at P.S. During cross-examination PW 3 stated that normally they give sedative injection to burnt patient for which the patient goes in sedation. PW 3 does not know how many days Mandira was treated in hospital. Mandira suffered from 90% burn injury on her persons. PW 3 could not say whether members of the family remained present at the time of recording the statement of the patient. He was suggested that Mandira was not in a position to make statement and that PW 3 recorded the statement under instruction of police. Said suggestions were denied by PW 3.

Definite defence of the appellant which was taken during trial was that Mandira herself poured kerosene oil on her person and set fire in order to commit suicide as appears from the answer to question no. 4 recorded during his examination under Section 313, Cr.P.C.

In fact, excepting the evidence of PW 3 coupled with exhibit- 1 there is no evidence in support of the charge against the appellant under Section 302, I.P.C. although the evidence of PW 3 coupled with exhibit- 1 introduced a completely different story from the initial complaint of PW 1 on the basis of which the ball of criminal investigation started rolling. It is the settled principle of law that in a criminal trial evidence is required to be weighed and not to be assessed by counting. Since the prosecution wholly relied upon dying declaration of the deceased Mandira Majhi who could not be made available for cross-examination it is essential to consider such dying declaration very cautiously to find out whether it was made voluntarily by the maker giving truthful account about her fatal 90% burn injuries in her conscious and fit state of mind or not. In a criminal trial conviction of accused may be solely based on dying declaration without corroboration provided the declaration was made voluntarily and truthfully when the maker was in fit mental state for making such declaration and certainly the maker was not tempted by any influence of relatives or investigating agency who may be interested in the success of investigation. In our view, in case of slightest doubt with reasonable foundation about the physical and mental condition of the maker or about making voluntary statement understanding the consequence without influence of other interested persons or about giving truthful account of facts. The court must deal with such situation which is dangerous for accused in criminal trial. In an appropriate case the court must insist for corroboration before using a dying declaration as prime tool for conviction in a criminal trial.

At the time of hearing, learned counsel for the appellant pointed out that the parents of the victim being PW 1 and PW 2 did not claim that Mandira Majhi made any statement before them or she was capable to make statement in hospital about her cause of receiving burn injury, rather PW 1 stated that she remained unconscious during her treatment in hospital but PW 3 claimed that he recorded dying declaration of Mandira Majhi when she was in conscious mind and oriented state. He stated about presence of the investigating police officer (PW 6), who was very much interested to prove it, at the time of recording it. Learned counsel for the appellant also pointed out that Mandira Majhi was admitted in hospital for twelve days with her 90% burn injuries but the PW 6 did not arrange for recording her dying declaration by any Magistrate. PW 3 does not claim that he medically treated Mandira Majhi in hospital and no treatment sheet of the patient was brought on record during trial to prove the actual physical and mental condition of the patient in hospital. He also had drawn our attention to the fact that although PW 3 claimed that staff nurse Kakali Das remained present at the time of recording alleged dying declaration but said Kakali Das was not examined as a witness and prosecution withheld most vital witness Kali whose name was allegedly uttered by the victim stating that the appellant became annoyed and set fire pouring kerosene oil on victim for her offering ‘Tari’ to her husband’s sister’s husband Kali. Learned counsel for the appellant also advanced his arguments that alleged dying declaration of the victim was not read over and explained to Mandira and neither recorded in question – answer from nor any signature or thumb impression of the maker was obtained on exhibit- 1 which also creates a doubt about genuineness of recording alleged dying declaration of the victim. He had also urged that the written FIR and post mortem report were not proved lawfully.

Mr. Banerjee, learned counsel for the State argued that in the trial Court the appellant was rightly convicted and sentenced only on the basis of dying declaration of the victim. He submitted that non-examination of the second investigating police officer or the scribe of written complaint of illiterate PW 1 for proving the writings is not fatal for the prosecution case when the case is based on solely the dying declaration of the victim. He relied on observation of the Supreme Court made in paragraphs 35 and 36 in the single judgment in two criminal appeals of Krishna Mochi and Others Vs. State of Bihar and an another appeal of

# State of Bihar Vs. Bir Kuer Paswan and others reported in (2002) 6 SCC 81

He submitted that presence of Magistrate at the time of recording dying declaration is not absolute necessary. He relied on a Constitutional Bench decision of the Apex Court in the case of

# Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710

He also submitted that recording of dying declaration by a disinterested doctor not in question – answer form and not taking signature or thumb impression of the maker on her recorded version cannot be ground for rejecting the most valuable dying declaration of the victim in a case under Section 302, I.P.C.

Learned counsel for the appellant cited the reported decisions of the Hon’ble Supreme Court in the cases of

# Panchdeo Singh Vs. State of Bihar reported in 2002 SCC (Cri) 211

# Ramilaben Hasmukhbhai Khristi and Another Vs. State of Gujarat with two other cases reported in 2002 SCC (Cri) 1575

and the case of

# Paparambaka Rosamma and Others Vs. State of A.P. reported in 1999 SCC (Cri) 1361

He also cited two reported decisions of this High Court in the cases of

# Mostafa Sk. alias Mostu Sk. Vs. State of West Bengal reported in 2014 (4) CHN (Cal) 529

and

# Sikha Dey Vs. State of West Bengal with another case reported in 2014 (4) CHN (Cal) 605

A decision of the Hon’ble Punjab and Haryana High Court in

# Pal Singh Vs. State of Punjab reported in 1995 Cri. L.J. 3596

was also relied by learned counsel for the appellant at the time of hearing this appeal. He also cited an unreported recent judgment dated 11.07.2016 of the Hon’ble Apex Court in State of Gujarat Vs. Jayrajbhai Punjabhai Varu in Criminal Appeal No. 1236 of 2010.

It is the settled principle that each case should be decided on its own merits. This case under appeal is entirely based upon dying declaration. Here the informant PW 1 is illiterate but he deposed during examination-in-chief in the same tune of FIR which he lodged through a written complaint getting the same written by another person. Since the said scribe was not produced by prosecution as a witness in trial the handwriting of the written complaint could not be proved following legal technicalities for marking that document as exhibit. Evidence of PW 1 is substantive in nature while the written FIR is a corroborative piece of evidence. In the instant case the second investigating police officer only collected the post mortem report of Mandira Majhi and submitted charge sheet against the accused persons on the basis of materials of case diary incorporated by PW 6 and the post mortem report.

In Krishna Mochi and Others Vs. State of Bihar (Supra) Hon’ble Supreme Court held, “

Even if the first information report is not proved, it would not be a ground of acquittal, but the case would depend upon the evidence led by prosecution. Therefore, non-examination of the informant cannot in any manner affect the prosecution case”.

In the case on our hand we also find that due to failure on the part of prosecution to get the written complaint (FIR) marked as exhibit the prosecution case is not affected. In that judgment Hon’ble Apex Court also held,

“It is well settled that non-examination of the investigating police officer is not fatal for the prosecution unless it is shown that the accused has been prejudiced thereby”.

In this case under appeal we are satisfied that due to non- examination of the second investigating police officer the accused persons were not prejudiced. In the same judgment the Hon’ble Supreme Court also mentioned the settled principle that non- examination of any witness would not affect the prosecution case, but in a given case non-examination of a material witness may affect the same.

In the case on our hand considering the facts and circumstances, we are of the view that non-examination of appellant’s sister’s husband Kali, whose name was allegedly uttered by the victim before PW 3 as the person whom the victim offered ‘Tari’ for which the appellant ignited her, seriously affects the prosecution case for withholding that material witness. Had the said person been examined as a witness the truthfulness of the recorded statement of Mandira Majhi could have been tested specially when the maker of the declaration cannot be tested by way of cross-examination. We agree that actual physical and mental state of the victim at the time of recording the alleged dying declaration might have been tested through the staff nurse Kakali Das who allegedly remained present at the time of recording it specially when the PW 3 does not claim that he medically treated the patient in hospital and the documents of treatment of the patient were not brought on record. The transparency in recording such dying declaration has been questioned due to presence of the investigating police officer (PW 6) at the place of recording exhibit- 1 by PW 3. Significantly, the parents (PW 1 and PW 2) of the victim stated that their daughter remained unconscious in hospital and they do not claim that their daughter Mandira expressed any cause of her sustaining burn injury. In this case there is no controversy that Mandira Majhi died due to her 90% burn injury. Prosecution claimed it as homicidal burn injury while accused persons including the appellant claimed it as suicidal burn. Under such circumstances, non-production of the autopsy surgeon as a witness by the prosecution also affects the prosecution case even when the report of post mortem examination was marked exhibit- 7 on admission which has legal sanction under Section 294, Cr.P.C. Purpose of examination of autopsy surgeon is not confined to prove his handwriting and signature on a post mortem report. By admitting formal proof of post mortem report the valuable right of accused cannot be said to have been waived to cross-examine the post mortem doctor for clarification as to whether the symptoms found in autopsy suggests exclusively homicidal or suicidal or accidental death specially when the exhibit- 7 does not express the nature of the death in opinion of the doctor who held the post mortem examination. As such, the non-examination of the autopsy surgeon as a witness during trial also affects the prosecution case. In this connection, we like to mention the judgment of another Division Bench of this High Court in the case of Mostafa Sk. alias Mostu Sk. Vs. State of West Bengal (Supra). In substance our observation in this judgment relating to proof of post mortem report does not differ with the view taken in Mostafa Sk. alias Mostu Sk. Vs. State of West Bengal. The decision of Hon’ble Punjab and Haryana High Court in Pal Singh Vs. State of Punjab (Supra) also supports the appellant’s claim that non-examination of post mortem doctor as a witness, the case of prosecution was affected. In summing up, we are of the opinion that non-examination of appellant’s sister’s husband Kali, staff nurse Kakali Das and the autopsy surgeon as witnesses attracts the provision laid down in illustration (g) of Section 114 of the Evidence Act and we are constrained to draw adverse inference against the State prosecution regarding truthfulness of the alleged dying declaration. Another significant circumstance is that the recording of exhibit- 1 was not claimed by PW 3 as was read over and explained to the victim. Another circumstance is that the PW 6 did not give any explanation of his not calling any Magistrate for recording declaration of the deceased although she was alive for twelve days after recording exhibit- 1 by PW 3.

In Laxman Vs. State of Maharashtra (supra) the Hon’ble Constitutional Bench of the Supreme Court held,

“The juristic theory regarding acceptability of a dying declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth.

Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable”.

In view of the said principles evidence of the parents of the victim stating unconsciousness of their daughter in hospital should prevail over the opinion of PW 3 that the patient was conscious and oriented at the time of recording her dying declaration. Be that as it may, we may safely hold and we hold that it is doubtful whether Mandira Majhi was in a fit state of mind at the time of recording exhibit- 1 by PW 3 and whether she voluntarily made any true statement before PW 3.

In the said judgment in Laxman Vs. State of Maharahstra (Supra) the Hon’ble Constitutional Bench of the Apex Court did not accept the analogy of non-acceptance of dying declaration given in a three-judges’ Bench of the Hon’ble Supreme Court in Paparambaka Rosamma and Others Vs. State of A.P. (supra) and the Constitutional Bench held, “Therefore, the judgment of this Court in Paparambaka Rosamma and Others Vs. State of A.P. must be held to be not currently decided and we affirm the law laid down by this Court in Koli Chunilal Sarji Vs. State of Gujarat.

In Panchdeo Singh Vs. State of Bihar (Supra) the judgment in Paparambaka Rosamma and Others Vs. State of A.P. (supra) was followed. In the judgment in Ramilaben Hasmukhbhai Khristi and Another Vs. State of Gujarat with two other appeals (supra) the Hon’ble Apex Court relied on the judgments in Paparambaka Rosamma and Others Vs. State of A.P. (supra) and Panchdeo Singh Vs. State of Bihar (supra).

In the Division Bench decision of this High Court in Sikha Dey Vs. State of West Bengal (supra) alleged dying declaration of the victim lady could not inspire confidence of the Hon’ble Division Bench in view of the principles discussed in several Supreme Court decisions. In the case on our hand also we find material lapses of prosecution as discussed earlier against acceptance of the exhibit- 1 as voluntary and true version of the victim Mandira Majhi or was given in her fit mental state.

Having considered the facts, circumstances and evidence on record we like to point out that when it is evident in the deposition of PW 1 that soon after receiving burn injury the daughter of PW 1 namely Mandira Majhi was shifted to hospital by accused persons, it is a strong circumstance to establish that the accused persons had no intention to kill Mandira but they wanted her survival. It does not rule out the possibility of Mandira’s igniting herself with intention to commit suicide. For the sake of arguments if we consider the view that death of Mandira Majhi occurred due to homicidal burn then two equal possibilities appear on the board for selecting one to arrive in the decision.

Learned counsel for the appellant cited the unreported decision of the Supreme Court in State of Gujarat Vs. Jayrajbhai Punjabhai Varu (supra) where it was noted,

“The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted”.

Having gone through the impugned judgment it appears to us that the trial Court failed to appreciate the evidence of prosecution in its true legal perspective. Referring to the oral evidence of PW 1, PW 2, PW 4 and PW 5 learned Judge disbelieved the possibility of suicidal burn of Mandira Majhi on the ground that said witnesses stated that they cannot say how Mandira Majhi sustained burn injury. In a criminal trial, defence of accused may be established by preponderance of probability when it would appear that prosecution proved its case beyond reasonable doubt. In the impugned judgment the evidence of PW 3 coupled with exhibit- 1 has been accepted as trustworthy without properly considering the lapses of prosecution which we have discussed in this judgment. As such, the view expressed in the impugned judgment favouring the prosecution case against the accused/appellant is not approved by us.

In the light of our findings made in this judgment this appeal is allowed extending benefit of doubt in favour of the appellant. The impugned judgment of conviction and sentence of the accused/appellant is hereby set aside. The appellant is acquitted of the charge under Section 302,I.P.C. and he is set at liberty. Let him be released from custody if his detention in any other case is not wanted.

A copy of this judgment alongwith the LCR, be sent forthwith to the trial Court from the department.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record in compliance of usual legal formalities.

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