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.
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