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HIGH COURT OF CALCUTTA
ASHIM KUMAR BANERJEE, RAGHUNATH RAY, JJ.
Jagat Taran Chakraborty - Appellant
Versus
State - Respondent
C.R.A. No. 210 of 2002
Decided on : Jan 14, 2011
JAGAT TARAN CHAKRABORTY - MURDER - SECTION 302, IPC - WIFE POURING KEROSENE OIL AND IGNITING MATCH STICK ON HER SAREE WHICH CAUGHT FIRE IMMEDIATELY - DYING DECLARATION (EXHIBIT 1), FSL REPORT AND OCULAR EVIDENCE - HELD: (1) DYING DECLARATION CAN BE SOLE BASIS OF CONVICTION IF IT INSPIRES FULL CONFIDENCE OF COURT; (2) COURT SHOULD BE SATISFIED THAT DECEASED WAS IN FIT STATE OF MIND AT TIME OF MAKING STATEMENT AND THAT IT WAS NOT RESULT OF TUTORING, PROMPTING OR IMAGINATION; (3) WHERE COURT IS SATISFIED THAT DECLARATION IS TRUE AND VOLUNTARY, IT CAN BASE ITS CONVICTION WITHOUT ANY FURTHER CORROBORATION; (4) IT CANNOT BE LAID AS ABSOLUTE RULE OF LAW THAT DYING DECLARATION CANNOT FORM SOLE BASIS OF CONVICTION UNLESS IT IS CORROBORATED. THE RULE REQUIRING CORROBORATION IS MERE RULE OF PRUDENCE; (5) WHERE DYING DECLARATION IS SUSPICIOUS, IT SHOULD NOT BE ACTED UPON WITHOUT CORROBORATIVE EVIDENCE; (6) DYING DECLARATION WHICH SUFFERS FROM INFIRMITY SUCH AS DECEASED WAS UNCONSCIOUS AND COULD NEVER MAKE ANY STATEMENT CANNOT FORM BASIS OF CONVICTION; (7) MERELY BECAUSE, DYING DECLARATION DOES NOT CONTAIN ON THE DETAILS AS TO OCCURRENCE IT IS NOT TO BE REJECTED; (8) EVEN IF IT IS BRIEF STATEMENT, IT IS NOT TO BE DISCARDED; (9) WHEN WITNESS AFFIRMS THAT DECEASED WAS NOT IN FIT AND CONSCIOUS STATE TO MAKE DYING DECLARATION, MEDICAL OPINION CANNOT PREVAIL; (10) IF AFTER CAREFUL SCRUTINY COURT IS SATISFIED THAT IT IS TRUE AND FREE FROM ANY EFFORT TO INDUCE DECEASED TO MAKE FALSE STATEMENT AND IF IT IS COHERENT AND CONSISTENT THERE SHALL BE NO LEGAL IMPEDIMENT TO MAKE IT BASIS OF CONVICTION EVEN IF THERE IS NO CORROBORATION.
Fact of the Case:
RINA CHAKRABORTY, AN EDUCATED YOUNG HOUSE WIFE, AGED 25 YEARS SUCCUMBED TO HER BURN INJURIES AT M.R. BANGUR HOSPITAL AT 11 PM ON 31.12.99 LEAVING BEHIND HER DAUGHTER ROMITA @ MUMPII, AGED ABOUT 21/2 YEARS. SHE WAS MARRIED TO THE APPELLANT ON 21.04.95. IT WAS A LOVE MARRIAGE. IN NOVEMBER 1998 A MAINTENANCE CASE UNDER SECTION 125, CR. P.C. WAS FILED AGAINST HER HUSBAND. SHE HAD TO LEAVE HER MATRIMONIAL HOME AND TO RESIDE AT HER PARENTAL HOME AT 86B, TOLLYGUANGE, KOLKATA-33 ON AND FROM 12.01.97. THE APPELLANT HUSBAND BEGAN TO PAY VISIT THERE ON THE PLEA TO SEE HER AILING FATHER. HE USED TO ENTREATE HER TO GO BACK TO HER MATRIMONIAL HOME. ON HIS PERSUASION SHE ULTIMATELY RETURNED TO HER HUSBAND'S HOUSE ON 01.11.1999. ON 31.12.1999 AT ABOUT 10.30 AM THERE WAS A QUARREL BETWEEN THE SPOUSES FOLLOWED BY SCUFFLING OVER FAMILY AFFAIRS. DURING SUCH QUARREL HER HUSBAND POURED KEROSENE OIL ON HER AND IGNITED A MATCH STICK WHICH WAS THROWN ON HER SAREE WHICH CAUGHT FIRE IMMEDIATELY.
Finding of the Court:
THE APPELLANT SET FIRE ON HER WIFE BY POURING KEROSENE OIL AND ALSO BY THROWING A BURNING MATCH STICK UPON THE WEARING SARI OF THE VICTIM.
Issues: None
Ratio Decidendi: THE DYING DECLARATION (EXHIBIT 1) RECORDED IN THE PRESENCE OF A DOCTOR WHO CERTIFIED THAT THE DECEASED WAS ON A FIT STATE AND CONDITION TO GIVE STATEMENT. THE DOCTOR APPENDED A CERTIFICATE TO THAT EFFECT AT THE BOTTOM OF THE DYING DECLARATION. TRUE, IN SO MANY WORDS IT IS NOT WRITTEN THAT THE VICTIM WAS FULLY CONSCIOUS AND MENTALLY ALERT AND REMAINED SO TILL THE RECORDING OF THE STATEMENT WAS COMPLETE. BUT THE ABSENCE OF A CERTIFICATE BY USING THESE WORDS EXACTLY DOES NOT AFFECT THE CREDIBILITY OF THE DYING DECLARATION FOR THE SIMPLE REASON THAT IN VIEW OF 30-35 BURN INJURIES ONLY THE PATIENT WAS FULLY CONSCIOUS AND MENTALLY ALERT AND THE CAUSE OF DEATH OF THE VICTIM WAS CARDIAC RESPIRATORY FAILURE AS RECORDED IN THE DEATH CERTIFICATE.
Final Decision: APPEAL DISMISSED.
RAY, J.
1. THE appellant herein Jagat Taran Chakraborty, husband of the deceased of 92, Tollyguange Road, Kolkata - 33 was tried by the learned Additional Sessions Judge, 4th Court, Alipore, 24 Parganas (south) in Sessions Trial No. 2 (11) of 2000 for the offence punishable under Section 302, IPC. Vide Convicted for the said offence. He was sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten thousands only) in default to suffer further R.I. for six months as per order dated 23.04.02. Being aggrieved by the said judgment and order of conviction, the appellant preferred the present appeal. Facts
2. RINA Chakraborty, an educated young house wife, aged 25 years succumbed to her burn injuries at M.R. Bangur Hospital at 11 PM on 31.12.99 leaving behind her daughter Romita @ Mumpi, aged about 21/2 years. She was married to the appellant on 21.04.95. It was a love marriage. In November 1998 a maintenance case under Section 125, Cr. P.C. was filed against her husband. She had to leave her matrimonial home and to reside at her parental home at 86B, Tollyguange, Kolkata-33 on and from 12.01.97. The appellant husband began to pay visit there on the plea to see her ailing father. He used to entreat her to go back to her matrimonial home. On his persuasion she ultimately returned to her husband's house on 01.11.1999. On 31.12.1999 at about 10.30 AM there was a quarrel between the spouses followed by scuffling over family affairs. During such quarrel her husband poured Kerosene Oil on her and ignited a match stick which was thrown on her saree which caught fire immediately. She started screaming for help and her husband started shouting for help stating that she had set fire to herself. Thereafter, neighbours came and tried to extinguish fire by pouring water. She was, thereafter, brought to M.R. Bangur Hospital by her husband and one Sinbani Ghosh (PW14). She was admitted in the said hospital for medical treatment.
3. HER contention as above was recorded by Mr. S. Banerjee, S.I. of Police attached to Tollyguange P.S. (PW 22) on 31.12.99 at 6 PM from the hospital bed in the presence of her father Sujay Kr. Haldar, since deceased and Partha Sengupta, a man of the locality (PW1). Dr. Sanjib Kr. Saha, PW 16, R.M.O. on-duty at the material point of time assisted the police officer in recording the statement of the victim by making relevant queries to her. HER R.T.I, was also taken by the police officer on the said statement. Such statement was treated as an FIR. Subsequently, the FIR was converted to a dying declaration of the victim. On her demise at 11 PM of the date of admission.
4. THE father of the victim informed the duty officer about his daughter's injuries and her admission to Bangur Hospital. THE matter was diarized under Tollyguange P.S. G.D. Entry No. 326 dated 31.12.1999 at about 2.40 PM. Subsequently Tollyguange P.S. Case No. 405 of 1999 dated 31.12.1999 under Section 307 IPC was started against the accused appellant. THE duty officer Sidharatha Banerjee, S.I. fof Police (PW 23) rushed to Bangur Hospital and requisitioned the service of Dr. Sanjib Kr. Saha, the R.M.O. on duty of Bangur Hospital for recording the victim's statement. On demise of the victim Section 302, IPC was added to the said PS case. THE PS case was formally endorsed to S.I. S. Banerjee for investigation. Since Tollyguange PS was bifurcated and Charu Market PS was set up as per relevant Government order, the said Tollyguange case was transferred to the newly created Charu Market P.S. On transfer, the Tollyguange PS Case No. 405 of 1999 dated 31.12.1999 under Section 307, IPC with an added Section 302, IPC was renumbered as Charu Market PS Case No. 2 dated 6.1.2000 under Section 302, IPC. A formal FIR was accordingly drawn up. S.I. Biman De, of Charu Market P.S. was asked to conduct further investigation in this case. Charge-sheet
5. IN course of further investigation the second I.O. tagged the record . of Tollyg
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