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2019 Supreme(Cal) 105
IN THE HIGH COURT OF CALCUTTA
JOYMALYA BAGCHI, MANOJIT MANDAL, JJ.
Tarak Paul - Appellant
Versus
State of West Bengal - Respondent
Criminal Appeal No. 351 of 2013
Decided On : 18-02-2019
Bibaswan Bhattacharya, Adv., Sreyashi Biswas, Adv.
The main legal point established in the judgment is the requirement for reliable evidence of torture for dowry demand soon before the victim's death to prove the offence under Section 304B of the Indian Penal Code.
Headnote:
Dowry - Criminal Law - Indian Penal Code - Sections 498A, 304B, 306 - The court upheld the conviction of the appellant under Section 498A of the Indian Penal Code and converted the conviction under Section 304B to one punishable under Section 306. The court found that while the prosecution proved the offence under Section 498A, it failed to prove the offence under Section 304B as there was no reliable evidence of torture for dowry demand soon before the victim's death. The court also noted that the earlier dying declaration spoke of suicidal burns, and the subsequent dying declaration was recorded under suspicious circumstances without permission or presence of medical personnel.
Fact of the Case:
The victim was married to the appellant and allegedly subjected to torture and assault by him. She suffered burn injuries and subsequently died. The appellant was convicted for offences under Sections 498A and 306 of the Indian Penal Code.
Finding of the Court:
The court upheld the conviction under Section 498A and converted the conviction under Section 304B to one punishable under Section 306. The court also found that the prosecution failed to prove the offence under Section 304B due to lack of reliable evidence of torture for dowry demand soon before the victim's death.
Issues: The main issues were the reliability of the dying declarations, the presence of torture for dowry demand, and the conversion of the conviction under Section 304B to one punishable under Section 306.
Ratio Decidendi: The court's decision was based on the lack of reliable evidence of torture for dowry demand soon before the victim's death, the suspicious circumstances surrounding the subsequent dying declaration, and the content of the earlier dying declaration.
Final Decision: The court upheld the conviction under Section 498A and converted the conviction under Section 304B to one punishable under Section 306. The appellant was sentenced to suffer rigorous imprisonment for ten years for the offence punishable under Section 306 IPC.
JOYMALYA BAGCHI, J.
1. The appeal is directed against judgment and order dated 15th March, 2013 and 16th March, 2013 passed by learned Additional Sessions Judge, F.T.C. II, Ranaghat, Nadia in Sessions Trial Case No.IX/3/12 arising out of Sessions Case No. 41(2)/12 convicting the appellant for commission of offence punishable under Sections 498A/304B of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for three months more for the offence punishable under Section 498A of the Indian Penal Code and to suffer rigorous imprisonment for ten years for the offence punishable under Section 304B of the Indian Penal Code. Both the sentences to run concurrently.
2. The prosecution case as alleged against the appellant is to the effect that on 5.6.2008 the victim Pinki Pal was married to the appellant. It was an arranged marriage. Appellant used to come home in an intoxicated condition and assault Pinki. Requests were made to the appellant not to torture his wife but to no avail. Lastly on 2.10.2011 at about 7 p.m. Shankar Das, father of the victim (P.W.1) came to know that the victim had been admitted at Saktinagar Hospital with severe burns. The doctor referred the victim to Kolkata hospital for treatment but due to poverty he could not shift his daughter. He came to know that the appellant had poured kerosene oil on the victim and set her on fire. As he was busy with the treatment of his daughter finally on 19.10.2011 he lodged first information report resulting in registration of Taherpur P.S. Case No.317 dated 19.10.2011 under Sections 498A 326/307 of the Indian Penal Code. Subsequently, the dying declaration of the victim was recorded by Investigating Officer (P.W.14) and upon her death Section 302 IPC was added to the first information report.
3. In conclusion of investigation, charge sheet was filed against the appellant and the case was committed to the Court of Sessions and thereafter transferred to the Court of Additional Sessions Judge, Fast Track Court II, Ranaghat, Nadia for trial and disposal. Charges were framed under Sections 498A/304B/302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.
4. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication.
5. In conclusion of trial, the learned Trial Judge by the impugned judgment and order dated 15th March, 2013 and 16th March, 2013 convicted and sentenced the appellant, as aforesaid.
6. Hence, the present appeal. Since a co-ordinate bench of this court issued rule for enhancement of sentence of the appellant, the appeal as well as the rule for enhancement of sentence are taken up for hearing analogously.
7. Nobody appears for the appellant.
8. Mr. Bivashan Bhattacharya, learned Advocate is requested to appear in this matter as amicus curiae and assist this court. He argued that the dying declaration (Ext.3) recorded by the I.O. is of dubious origin. No doctor was present at the time when the statement of the victim was recorded and no certificate has been also appended to the dying declaration to show that the victim was mentally alert and physically fit. Permission from the hospital authorities to record the dying declaration by Investigating Officer has also not been produced in court. On the other hand, P.W.4, Medical Officer who admitted the victim recorded her statement in the medical papers (Ext.1) which discloses that she set herself on fire. Hence, no reliance ought to be placed on Ext. 3 in the facts of the case. With regard to the alleged oral dying declaration as deposed by P.Ws. 2, 3 and other prosecution witnesses, it is submitted that their evidence ought to be taken with a pinch of salt as the oral version of these interested witnesses run counter to the contemporaneous written dying declaration recorded by t
