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1999 Supreme(Cal) 347
High Court Of Calcutta
SUJIT BARMAN ROY, RANJAN KUMAR MAZUMDER
SUDIP DEY ALIAS CHOTTU AND ANOTHER - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Appeal 74 Of 1994
Decided On : 07/07/1999
D.K.DUTTA, M.P.KUKHERJI
Dying declarations are admissible in evidence if made by the deceased in a fit state of mind and body, and there is no evidence of tutoring or prompting by any interested party.
Headnote:
CRIMINAL APPEAL - DYING DECLARATION - ADMISSIBILITY - MURDER - ABETMENT - SECTION 302, 302 READ WITH 109, IPC - SECTION 32(1), INDIAN EVIDENCE ACT.
Fact of the Case:
The deceased, Toton, was in love with appellant No. 1, Chottu. Chottu wanted to marry Toton and demanded Rs. 5,000 from her father. On the day of the incident, Toton left her home to clean Chottu's Egg Roll Shop. She did not return home that night. The next day, she was admitted to the hospital with severe burn injuries and made a dying declaration accusing Chottu and his mother (appellant No. 2) of setting her on fire. Toton succumbed to her injuries later that day.
Finding of the Court:
The court found that the dying declarations made by Toton were voluntary, truthful, conscious, and satisfactory. It held that appellant No. 1 committed the offence of murder punishable under Section 302, IPC, and that appellant No. 2 committed an offence of abetment as punishable under Section 302 read with Section 109 IPC.
Issues: 1. Whether the dying declarations made by Toton were admissible in evidence? 2. Whether appellant No. 1 committed the offence of murder under Section 302, IPC? 3. Whether appellant No. 2 committed the offence of abetment under Section 302 read with Section 109, IPC?
Ratio Decidendi: 1. The court held that the dying declarations were admissible in evidence as they were made by Toton in a fit state of mind and body, and there was no evidence of tutoring or prompting by any interested party. 2. The court found that appellant No. 1 poured kerosene oil on Toton's body and set her on fire, resulting in her death. This act constituted the offence of murder under Section 302, IPC. 3. The court held that appellant No. 2 abetted the offence of murder by asking appellant No. 1 to set Toton on fire. This act constituted the offence of abetment under Section 302 read with Section 109, IPC.
Final Decision: The court dismissed the appeal and upheld the order of conviction and sentence passed by the lower court. It directed appellant No. 2 to surrender before the Chief Judicial Magistrate within a fortnight and serve out the sentence.
( 1 ) THIS Criminal Appeal is directed against the Judgment, and order of conviction and sentence passed by the learned Additional Sessions Judge (14th Court) Alipore on 11-2-94 in Sessions Trial No. 1 (2) 93. By the impugned Judgment and order of conviction, ld. Court below found both the appellants 1 and 2 to be guilty and sentenced appellant No. 1 to suffer imprisonment for life for the offence punishable under Section 302, IPC and also sentenced appellant No. 2 to suffer imprisonment for life for the offence under Section 302 read with Section 109, IPC. Being aggrieved by the said order of conviction and sentence, both the appellants being son and mother respectively have preferred the instant appeal.
( 2 ) PROSECUTION case in brief was that the deceased-girl Toton alias Subhasini Roy, aged about 22 years, and appellant No. 1 Chottu alias Sudip Dey were in love with each other. Appellant No. 1 had an Egg Roll Shop at the crossing of Rashbehari Avenue and Satish Mukherjee Road, Calcutta. He wanted to marry the deceased and for the said purpose visited the house of the deceased's father and wanted some time for the said purpose from the father of the deceased-girl. Subsequently appellant No. 1 demanded a sum of Rs. 5,000. 00 from the father through the deceased and it was arranged that a friend of the father of the deceased would pay the said sum of Rs. 5,000. 00 to appellant No. 1 at the time of marriage of appellant No. 1 with the deceased by registration. On a Chaitra Sankranti Day (13-4-90), the deceased left her home telling her mother that she would visit the Egg Roll Shop of the appellant No. 1 for the purpose of cleaning the said shop as the following day was 1st Baisakh, an auspicious day. The deceased, however, told her mother that she would come back to her father's place on that day itself (13-4-90) in the night. But unfortunately the deceased did not come back to her father's house in the night on that date. On 14-4-90 the deceased was admitted with severe burn injuries on her person in the Sambhu Nath Pandit Hospital, Calcutta. In the Hospital the deceased made a dying declaration to the police to the effect that on that date itself (14-4-90) at about 12-30 A. M. appellant No. 1 poured kerosene oil on her body and set her on fire. In the dying declaration it was also stated by her that appellant No. 2 being the mother of appellant No. 1 asked appellant No. 1 to set the deceased on fire. At that time the deceased was in front of Satish Mukherjee Road and Rashbehari Avenue Junction. The said dying declaration was treated by the police as FIR and accordingly Tollygunj Police Station Case No. 192, dated 14-4-90 under Section 307/34, IPC was registered against both the appellants. Unfortunately on 14-4-90 at 8. 50 hours in the morning the deceased breathed her last at Sambhu Nath Pandit Hospital, Calcutta. After investigation of the case the police submitted a charge-sheet against both the appellant Nos. 1 and 2 under Section 302/34, IPC. At the time of trial, learned Sessions Judge framed charge under Section 302, IPC against appellant No. 1 and under Section 302 read with Section 114, IPC against appellant No. 2. After conclusion of trial, Additional Sessions Judge, Alipore convicted and sentenced appellant No. 1 to suffer imprisonment for life for an offenceunder Section 302, IPC but sentenced appellant No. 2 to suffer imprisonment for life for the offence under Section 302/109, IPC instead of under Section 302/114, IPC.
( 3 ) IN this case, prosecution examined as many as 18 (eighteen) witnesses in support of its case. Defence, however, did not examine any witness on its side at the time of trial.
( 4 ) BOTH the appellant Nos. 1 and 2 were examined at length by the Court below under Section 313, Cr. P. C. and both of them pleaded not guilty and claimed to be tried.
( 5 ) THE defence case was a denial of the entire episode as projected by the prosecution. The specific defence case wa
