Courts on Its Own Motion vs Sk. Chhoku Mia

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 421

IN THE HIGH COURT AT CALCUTTA
DEBANGSU BASAK, MD. SHABBAR RASHIDI, JJ.
The Courts on Its Own Motion – Appellant
Versus
Sk. Chhoku Mia and Another – Respondents
C.R.R. No. 188 of 2023, C.R.A. No. 221 of 2021, I.A. No. CRAN 1 of 2021
Decided On : 17-04-2023

Advocates:
Advocate Appeared:
For the Appellants : Arunava Ganguly.
For the Respondents: Neguive Ahmed, Trina Mitra.

Headnote:
Indian Penal Code, 1860 - Sections 448/325/307/506/34 – Attempt to murder – Dying declaration - Appeal against conviction - appellants trespassed into the room of the victim at about 10.30 a.m. with intent to assault and murder the victim. The appellants caused voluntary hurt to the victim with a help of the broom. The appellants poured kerosene oil on the body of the victim and set her ablaze- Whether injury was self-inflicted or caused by another person - Held, All dying declarations being uniform in nature and there being no material to disbelieve any of prosecution witnesses regarding dying declarations court are unable to accept contention of appellants with regard to validity of Exhibit - Significantly oral dying declarations made by victim to three prosecution witnesses noted was not questioned on behalf of appellants during hearing - Victim may or may not be with suicidal tendency as transpiring from evidence of record - Suicidal tendencies apart there are overwhelming evidence of appellants indulging in an assault and putting victim on fire - Victim did not commit suicide as sought to be suggested on behalf of appellants. Death of victim was classified as homicidal and opinion was not dislodged - Appeal Dismissed.

JUDGMENT :

DEBANGSU BASAK, J.

1. The appeal is directed against the judgment of conviction and order of sentence dated December 22, 2016 passed by the learned Sessions Judge, Hooghly in Sessions Trial No. 15 of 2016 arising out of Sessions Case No. 91 of 2016.

2. By the impugned judgment of conviction, learned Trial Judge convicted the appellants under Sections 448/323/304 of the Indian Penal Code, 1860. By the impugned order of sentence, the learned Trial Judge awarded rigorous imprisonment for a term of one year with a fine of Rs.1,000/-each and in default imprisonment for a term of one month each for the offence under Section 323 of the Indian Penal Code, 1860, rigorous imprisonment for a term of ten years with a fine of Rs.5000/-each and in default imprisonment for a term of three months for the offence under Section 304 of the Indian Penal Code, 1860 and rigorous imprisonment for a term of one year with a fine of Rs.1000/-each and in default further imprisonment for a term of one month for the offence under Section 448 of the Indian Penal Code, 1860. All the sentences were directed to run concurrently. Imprisonment for non-payment of fine was directed to run separately.

3. Police received a written complaint from prosecution witness (PW-) 1 on February 19, 2016. On the basis of such written complaint, police registered a First Information Report being Pandua Police Station FIR No. 107 of 2016 dated February 19, 2016 under Sections 448/325/307/506/34 of the Indian Penal Code, 1860.

4. Police conducted an investigation with regard to such FIR. Police submitted charge-sheet against the appellants on May 20, 2016 under Sections 448/326/307/506/34/302 of the Indian Penal Code, 1860.

5. Court framed charges against the appellants under Sections 448/326/307/506/34/302 of the Indian Penal Code, 1860. The appellants pleaded not guilty and claimed to be tried.

6. The case of the prosecution at the trial was that, the appellants trespassed into the room of the victim on February 18, 2016 at about 10.30 a.m. with intent to assault and murder the victim. The appellants caused voluntary hurt to the victim with a help of the broom. The appellants poured kerosene oil on the body of the victim and set her ablaze.

7. To bring home the charges as against the appellants, the prosecution examined 11 witnesses and relied upon various documentary and material evidences.

8. Learned advocate appearing for the appellants submits that the remaining portion of the sentences of the appellants were remitted by the order of the Judicial Department, Government of West Bengal, Vide No. 849-JL/JD/L/16M-48/22 dated January 20, 2023 communicated through DCS Order No. 024/1/IG-CSWB/23 dated January 25, 2023.

9. Learned advocate appearing for the appellants submits that consequent upon such remission, the appellants were released from the correctional home. In such circumstances, he submits that the Rule issued as against the appellants be discharged.

10. Learned advocate appearing for the appellants submits that, the victim attempted to commit suicide at least on three previous occasions. The present case is one of suicide. In support of such contention, he draws the attention of the Court to the testimonies of the prosecution witnesses as also of defence witnesses. He submits that, prosecution witnesses also acknowledged that on three previous occasions, the victim attempted to commit suicide.

11. In furtherance of his contention that the victim committed suicide, learned advocate appearing for the appellants submits that, the Post Mortem doctor stated in cross-examination that it was not possible to classify any burn injury as self inflicted or otherwise. Therefore, according to him, in the facts and circumstances of the present case, the benefit of doubt should be given to the appellants.

12. Learned advocate appearing for the appellants submits that, the dying declaration being Exhibit-7 is of no consequence. According to him, the doctor before whom the dying declara