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2019 Supreme(Cal) 733
IN THE HIGH COURT OF CALCUTTA
MD. MUMTAZ KHAN, JAY SENGUPTA, JJ.
Ketab Ali & Ors. - Appellants
Versus
The State of West Bengal - Respondent
C.R.A. 649 of 2006 With C.R.A.N. 2080 of 2018
Decided On : 21-05-2019
For the Appellant : Mr. Sekhar Kumar Basu, Mr. Debasish Roy.
For the State : Mr. Navanil De.
The dying declaration made by the victim before a Deputy Magistrate, supported by medical evidence and witness testimonies, was crucial in establishing the guilt of the appellant no. 1 for the offence of murder, while also leading to the acquittal of the appellant nos. 2 and 3 on the murder charge.
Headnote:
Dowry - Murder - Penal Code
Fact of the Case:
The case involved the conviction of three appellants under Sections 302, 498A read with Section 34 of the Penal Code for the murder of the victim, who suffered severe burn injuries and subsequently died. The victim's father alleged that the accused demanded more dowry, tortured the victim mentally and physically, and set her on fire, leading to her death. The prosecution presented evidence including dying declarations, medical reports, and witness testimonies to establish the guilt of the appellants.
Finding of the Court:
The court found that the delay in lodging the First Information Report was justified due to the victim's hospitalization and the parents' efforts to save her. The court also noted that the dying declaration made by the victim before a Deputy Magistrate, supported by medical evidence and witness testimonies, pointed towards the guilt of the appellant no. 1 for the offence of murder. However, the court found that the dying declaration did not clearly implicate the appellant nos. 2 and 3 in the commission of the offence of murder, leading to their acquittal on the murder charge. The court upheld the conviction of all appellants under Section 498A read with Section 34 of the Penal Code.
Issues: The issues included the delay in lodging the First Information Report, the credibility of witness testimonies, the admissibility of dying declarations, and the culpability of each appellant in the murder of the victim.
Ratio Decidendi: The court relied on the dying declaration made by the victim before a Deputy Magistrate, supported by medical evidence and witness testimonies, to establish the guilt of the appellant no. 1 for the offence of murder. The court also considered the lack of clear implication of the appellant nos. 2 and 3 in the murder, leading to their acquittal on the murder charge. The court upheld the conviction of all appellants under Section 498A read with Section 34 of the Penal Code.
Final Decision: The court dismissed the appeal of the appellant no. 1, upheld the conviction and sentence under Section 498A read with Section 34 of the Penal Code, and altered the conviction for the offence of murder to one under Section 302 of the Penal Code simpliciter while retaining the sentence imposed. The court partly allowed the appeal of the appellant no. 2, setting aside the conviction and sentence under Section 302 read with Section 34 of the Penal Code but retaining the conviction and sentence under Section 498A read with Section 34 of the Penal Code. The court allowed the appeal of the appellant no. 3, setting aside the conviction and sentence imposed under Section 302 read with Section 34 of the Penal Code and retaining the conviction under Section 498A read with Section 34 of the Penal Code.
JUDGMENT :
Jay Sengupta, J.
1. This appeal is directed against the judgment and order of conviction dated 06.09.2006 and sentence dated 07.09.2006 passed by the Learned Additional Sessions Judge, Fast Track Court, Dinhata, Cooch Behar in Session Trial 1/Nov/2005: Sessions Case No. 09/2005, thereby convicting the three appellants under Sections 302, 498A read with Section 34 of the Penal Code and sentencing each of them to suffer life imprisonment and to pay a fine of Rs. 10,000/-, in default to suffer simple imprisonment for one year for the offence under Sections 302 read with Section 34 of the Penal Code and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 3000/-, in default to suffer simple imprisonment for three months for the offence under Section 498A read with Section 34 of the Penal Code, both the sentences having to run concurrently.
2. On 10.01.2004 at about 13:15 hours PW 1 lodged a First Information Report with the Dinhata Police Station under Section 498A of the Penal Code. Subsequently, Section 302 of the Penal Code was added as the victim passed away. PW 1 alleged that his daughter Esmatara got married to the appellant no. 1 Ketab Ali about three and half years ago. The appellant no. 2 Kachiran Bewa was the mother-in-law and the appellant no. 3 Rabbina Khatun was the sister-in-law of his daughter. The victim had given birth to a female child who was two years old. Despite receiving dowry, the accused demanded more dowry from PW 1 and used to torture the victim both mentally as well as physically after making false complaints against her. They did not provide her sufficient food. Unable to bear such torture, the victim returned to his house about a year ago. She was sent back to her in-law’s house only after a ‘salish’. A few days ago PW 1 came to know from others that his daughter was admitted in a hospital with burn injuries. Oxygen was being given to her.
3. Investigation commenced. PW 15, a Deputy Magistrate, recorded a dying declaration of the victim lady in the hospital on 10.01.2004 at about 14.30 hours. PW 10, a nurse was a witness to the dying declaration. In her said dying declaration, the victim stated that 12/13 days ago at about 14.00 hours, her mother-in-law, unmarried sister-in-law and husband quarrelled with her and the husband assaulted her severely with a bamboo pole in the room. Then her husband poured kerosene oil on her and set her on fire. Several neighbours assembled and put out the fire on her body. The accused did not try to admit her in a hospital. Then she lost her senses. The victim lady died on 10.01.2004. PW 17, a Deputy Magistrate conducted an inquest over the dead-body of the victim lady on 11.01.2004 at about 10.30 hours. He found that the whole body was burnt and swollen from the chin and the neck to the feet and the toe on both the front as well as the back portions, except the head. The victim suffered about 85% burn injuries and the same was caused by fire. According to the father of the victim lady, his daughter was tortured by her husband and in-laws since marriage. According to the witnesses to the inquest, the victim lady was tortured and thereafter burnt. PW 21, the Investigating Officer also conducted an inquest over the dead-body and found severe burns. The body was totally wrapped up with bandages. According to the inquest witnesses, the victim was burnt by her husband and other in-laws. PW 18, the post-mortem doctor held an autopsy on the dead-body of the victim on 12.01.2004 at about 13.30 hours. According to him, death was caused due to the effects of burn injuries, which were ante-mortem in nature. After completion of investigation, a charge-sheet was submitted against the appellants. On 27.10.2005, charges were framed against the appellants under Section 498A read with Section 34 of the Penal Code and under Section 302 read with Section 34 of the Penal Code.
4. During trial the prosecution examined as many as twenty one witnesses to establish it
