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2011 Supreme(Cal) 686
High Court Of Calcutta
G.C. Gupta, Raghunath Ray, JJ.
Asoke Dab - Appellant
Versus
State Of West Bengal - Respondent
C.R.A. NO.107 of 1998
Decided On : May 18,2011
Prabir Kumar Mitra, Shatarup Purakayasta, Sujasha Mukherjee, Sushil Kumar Mahato
A dying declaration is admissible in evidence and can form the basis for a conviction, even in the absence of corroboration, if the court is satisfied that the declaration is truthful and not vitiated in any manner.
Headnote:
CRIMINAL LAW - DYING DECLARATION - RELIABILITY - CONVICTION BASED ON DYING DECLARATION - CORROBORATION NOT NECESSARY - DYING DECLARATION OF VICTIM OF BURNS INJURIES - CORROBORATED BY MEDICAL EVIDENCE, CIRCUMSTANTIAL EVIDENCE, AND CONDUCT OF ACCUSED - CONVICTION UPHELD.
Fact of the Case:
The appellant, Ashok Dab, was convicted of murder and cruelty by a Sessions Court for causing the death of his wife, Sushmita, by burning her alive. The conviction was based primarily on the dying declaration of the victim, which was corroborated by medical evidence, circumstantial evidence, and the conduct of the accused.
Finding of the Court:
The High Court upheld the conviction, holding that the dying declaration was reliable and that there was no need for corroboration in light of the other evidence supporting the prosecution's case.
Issues: 1. Whether the dying declaration of the victim was reliable and admissible in evidence. 2. Whether the dying declaration was corroborated by other evidence.
Ratio Decidendi: 1. The Court held that the dying declaration was reliable and admissible in evidence, as it was made by the victim shortly after the incident and was consistent with the other evidence in the case. 2. The Court also held that the dying declaration was corroborated by medical evidence, circumstantial evidence, and the conduct of the accused, which included his attempt to flee the scene of the crime.
Final Decision: The Court dismissed the appeal and upheld the conviction of the appellant.
GIRISH CHANDRA GUPTA, J.
1. THIS appeal is directed against a judgment dated 12th March 1998 passed by the learned Additional Sessions Judge, 1st Court, Midnapore, in Sessions Trial No.VI/ June/ 92 by which the accused/husband Ashok Dab was convicted of offences punishable under Sections 498A/304B and 302 IPC and his near relations were all acquitted of the same charges. The appellant-husband also by an order dated 12th March 1998 was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs.2000/-, in default to undergo further rigorous imprisonment for one year for the offence punishable under Section 302 IPC. He was also sentenced to suffer rigorous imprisonment for a period of three years as also to pay a fine of Rs.1000/-, in default to undergo further rigorous imprisonment for six months for the offence punishable under Section 498A. Both the sentences were however directed to run concurrently. The convict has come up in appeal.
2. THE facts and circumstances of the case briefly stated are as follows:-
THE appellant Ashok Dab fell in love with his neighbour Sushmita alias Dukhirani. The affair culminated in a social marriage. Within three years of her marriage she died on 16th August 1989 of severe burn injury. A written complaint was promptly lodged alleging continuous cruel treatment since three months after the marriage followed by physical assault and demand for a piece of land. The victim was hospitalised. Dr. K.K. Maity, Surgeon of Ghatal Sub-Divisional Hospital, attended the patient and recorded her dying declaration. Dr. M. Mishra, EMO of Ghatal Sub-Divisional Hospital, had admitted the patient. He also recorded the dying declaration of the patient. The dying declaration was also witnessed by staff nurse Shrimati Kajal Bera (PW 8). The learned trial Court considering the evidence including the dying declaration passed the aforesaid judgment and order. Before adverting to the submissions advanced by Mr. Mitra, learned Advocate appearing for the appellant, it would be proper to notice the evidence in some detail.
The fact that the victim died within three years of her marriage is not in dispute. The fact that she died of severe burn injury is also not in dispute. The fact that it was a love marriage is not in dispute. The fact that the parties were neighbours is also not in dispute. The PW 1, elder brother of the deceased, deposed that happiness between the couple ended within 3-4 months of the marriage. The victim used to be assaulted by the husband and his near relations. In order to put an end to the torture; a reconciliation process was attempted through a salish about which there is evidence adduced by the PW 1, PW 2 the brother and cousin of the victim. PW 7, a hostile witness, admitted during cross-examination by the prosecution with leave of Court that he had been told by the cousin of the victim about the salish. There is evidence adduced by the PWs.1 and 2 that a piece of land for the purpose of constructing a residential house was demanded by the accused through the victim his wife. The brothers of the victim were however reluctant or unable to part with that piece of land. In connection with the aforesaid demand the PW 1 during his cross-examination deposed as follows:-
"As we are very poor I told my sister that we are not in a position to give her the bastu she has asked for. My sister felt grieved for that. I cannot say the date, month and year in which my sister wanted bastu to me."
3. PW 2, a cousin of the victim, deposed in that regard during his cross-examination as follows:-
"I heard from my sister that she was put to torture as the bastu demanded by her husband was not given."
As regards the dying declaration the evidence of Dr. Mishra, EMO of Ghatal Sub-Divisional Hospital, is as follows:-
"On 16.8.89 I was posted at Ghatal S.D. Hospital as M.O. On that date I was on duty as E.M.O. at 11.25 a.m. On that date and at that time one Dukhirani Dab, wife of Ashok Dab of vil
