Kanti Roy @ Kanu @ Kena vs State Of West Bengal & Anr
2022 Latest Caselaw 2121 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak

C.R.A. 765 of 2012

Kanti Roy @ Kanu @ Kena

-Vs-

State of West Bengal & Anr.

For the Appellant : Mr. Debangan Bhattacharjee, Adv.

Mr. Arka Bhattacharyya, Adv.

Mr. Mehboob Rahman, Adv.

Ms. Swarnali Saha, Adv.

Mr. Rajdeep Sinha, Adv.

For the State               :        Ms. Anasuya Sinha, Adv.
                                     Ms. Jonaki Saha, Adv.

Heard on                    :       20th April, 2022

Judgement on                :       20th April, 2022


Joymalya Bagchi, J. :-

The appellant has assailed his conviction and sentence under

Sections 498A/302 of the Indian Penal Code. Prosecution case against the

appellant is as follows :

Appellant was married to Chandana Roy (the victim) on 2nd Magh,

1411 as per Hindu rites and customs. At the time of marriage dowry to

the tune of Rs. 12,000/- in cash, two bhories of gold ornaments and

utensils had been given to the appellant. They demanded more money

from the victim and tortured her. On 11.05.2009 the appellant set the

housewife on fire and thereafter left his residence after closing the door of

the room and putting the latch from outside. Local people came to the spot

and after opening the latch recovered the victim. P.W. 9, a neighbour

informed the family members of Chandana. His brother P.W. 1 and others

came to the spot. Chandana disclosed to her relations that her husband

had poured kerosene oil on her person and set her on fire. Thereafter, they

went away after closing the door from outside. Chandana was shifted to

Burdwan Medical College and Hospital where she ultimately expired in the

night on 15.05.2009. On the next day her brother (P.W. 1) lodged written

complaint at the police station resulting in registration of Khanda Ghosh

Police Station Case No. 31 of 2009 dated 16.05.2009 under Sections

498A/304B/406 of the Indian Penal Code against the appellant and his

mother, Kishori Roy. In the course of investigation, accused persons were

arrested and charge-sheet was filed against them. Charges were framed

under Sections 498A/302 of the Indian Penal Code against the accused

persons. In the course of trial, prosecution examined 17 witnesses and

exhibited a number of documents. Defence of the accused persons was

one of innocence and false implication. In conclusion of trial learned trial

Judge by the impugned judgment and order convicted the appellant under

Sections 498A/302 of the Indian Penal Code and sentenced him to suffer

rigorous imprisonment for life and also to pay fine of Rs.5,000/-, in

default, to suffer further rigorous imprisonment for three months more for

the offence punishable under Section 302 of the Indian Penal Code and he

is also sentenced to suffer rigorous imprisonment for three years and to

pay fine of Rs. 2,000/- in default to suffer further rigorous imprisonment

for one month more for the offence punishable under Section 498A of the

Indian Penal Code. All the sentences to run concurrently. By the self-same

judgment and order, co-accused Kishori Roy was acquitted of the charges

levelled against her.

Mr. Bhattacharjee, learned Counsel appearing for the appellant

argues there is no direct evidence to show the appellant had set the

housewife on fire. No evidence is also forthcoming to prove the door of the

room was locked from outside. It is also argued oral dying declaration of

the victim to her relations ought to be taken with pinch of salt. P.W. 9, an

independent witness, does not speak of any dying declaration. Medical

records relating to the treatment of the victim has not been produced in

Court. Treating doctor had also not been examined. Hence, it cannot be

said with certainty that the victim was conscious and in a fit state of mind

to make statement. Evidence with regard to torture over dowry is general

and omnibus in nature. Hence, prosecution case has not been proved

beyond doubt. Appellant is entitled to an order of acquittal.

Ms. Sinha, learned Counsel appearing for the State submits victim

housewife suffered death due to burn injuries at the matrimonial home.

After the incident appellant and her mother were not found in the

residence. P.W. 9 found the victim was conscious and the latter told her to

contact her family members over mobile phone. Immediately thereafter,

family members of the victim came to the spot and the victim narrated the

incident to them. Postmortem doctor opined that the victim had suffered

burn injuries and had died. Hence, the prosecution case is proved beyond

doubt.

P.W 1 (Hiru Roy) is brother of the victim girl and the informant.

P.W. 2 (Shibu Roy) is mother of the deceased. P.W 3 (Smt. Mithu Roy) is

wife of P.W. 1. P.W. 4 (Sri Lakhan Roy) is uncle of the victim.

P.W. 1 stated the victim was married to the appellant. Dowry was

given at the time of marriage. Over further demands of dowry, she was

subjected to torture. She was even driven out of her matrimonial home

frequently. On 11.05.2009 P.W. 1 received information that the victim had

been set on fire at her matrimonial home. Though the victim was seriously

injured, she was in a position to talk. She stated that her husband had

poured kerosene oil on her person and set her on fire. Thereafter her

husband closed the door from outside and left the spot. He along with

others came to the spot and removed the victim to Burdwan Medical

College and Hospital. Victim finally succumbed to her injuries four days

after the incident. On the next day, he lodged F.I.R.

P.W 1 is corroborated by his wife (P.W. 3) who also spoke of the

torture meted out upon the victim lady by the appellant and his mother

during her life time for further demands of dowry. She further stated she

accompanied her husband to the spot and found Chandana lying on the

ground with burn injuries. Her wearing apparels were also burnt and she

was naked. She was able to speak. She told her husband i.e. the appellant

had poured kerosene oil on her body and had set her on fire.

P.W. 4 is the uncle of Chandana. He had accompanied P.W. 1 to

the place of occurrence. He stated that he found Chandana in burnt

condition. Chandana made statement implicating her husband. She finally

expired at the hospital four days after the incident. He was a witness to

the inquest report prepared by the police as well as the learned

Magistrate. He was also a signatory to the seizure of a plastic jar

containing kerosene and a match stick from the place of occurrence.

P.W. 2 is the mother of the deceased. Though she did not

accompany P.W. 1 to the place of occurrence she spoke of the torture on

her daughter over demands of dowry. She also stated she heard from her

son (P.W. 1) that her daughter had implicated her husband in her murder.

P.Ws. 6 and 7 (Sanjoy Dawn and Habal Roy) are independent

witnesses who accompanied P.W. 1 to the spot. They have corroborated

the relations with regard to the oral dying declaration made by the victim.

P.W. 9 (Smt. Alpana Santra) is a neighbour of the appellant. She

deposed the victim had suffered burn injuries at the matrimonial home

and died at Burdwan Medical College and Hospital. On the fateful day

hearing hue and cry she went to the house of the appellant and found the

victim lying on the ground with burn injuries and groaning in pain. Victim

told her to contact her relations through mobile phone. From the mobile

phone of the victim the witness gave information to the relations of

Chandana. Subsequently, police came to the spot and interrogated her.

From the evidence of the aforesaid witnesses it is clear that the

victim housewife had suffered burn injuries at the matrimonial home. She

was lying alone in the room when her neighbour P.W. 9 arrived. She was

conscious and able to speak. She requested her to contact her relations

through her mobile phone. P.W. 9 contacted her relations. Thereafter, her

brother (P.W. 1), sister-in-law (P.W. 3) and uncle (P.W. 4) came to the spot.

Local villagers, (P.Ws. 6 and 7) also accompanied them. Victim narrated

the incident to the aforesaid witnesses stating appellant had set her on fire

and thereafter left the room after locking it from the outside. She was

shifted to the Burdwan Medical College and Hospital where she breathed

her last four days after the incident. Mr. Bhattacharjee has assailed the

oral dying declaration of the victim at various counts. He contends the

doctor who treated the victim at Burdwan Medical College and Hospital

has not been examined. Physical condition of the victim and her capacity

to make statement has not been proved. P.W. 9 did not state that the

victim had made dying declaration. Thus, oral dying declaration made by

the victim is unreliable.

I have considered the aforesaid submissions in the light of the

evidence on record. The circumstances of the case reveal in spite of burn

injuries the victim was conscious and in a position to make statement.

When evidence on record establishes beyond doubt that the victim was

conscious and in a fit to make statement, failure to produce certificate by

a doctor would not disentitle the Court from relying on such dying

declaration. (See Laxman vs. State of Maharashtra1).

P.W. 9, Smt. Alpana Santra, a neighbour of the appellant had come

to the spot immediately after the incident. She found the victim with burn

injuries. The victim told her to contact her family members through her

mobile phone. This shows the victim in spite of suffering burn injuries was

not only conscious but capable of intelligent communication with others.

Pursuant to such request by the victim, P.W. 9 contacted her relations.

Soon thereafter they came to the spot and the victim made an oral dying

declaration to them.

It is contended such oral dying declaration ought not to be relied

upon as P.W. 9 has not corroborated the same. Scanning the evidence of

P.W. 9 it appears though she had arrived the spot earlier than the

relations, she was not present when the relations had conversation with

the victim. Hence, she was not in a position to corroborate the dying

declaration made by the victim to her relations. On the other hand, the

relations of the victim were accompanied by neighbours (P.W. 6 and P.W.

7) who are disinterested witnesses. They came to the place of occurrence

with her relations. They supported the prosecution case and stated that

the victim made dying declaration implicating the appellant. Victim had

made dying statement immediately after her relations had come to the

spot and before she was shifted to the hospital.

(2002) 6 SCC 710

From the evidence of the investigating officers particularly P.W. 15

it appears non-examination of the doctor who treated the victim was due

to a misdescription of the name of the doctor in the list of witnesses. Dr. S

Pan who had treated the victim had been incorrectly described as Dr. S

Pal. This is a defect in the course of investigation. Such defect arising from

a typographical error by the investigating agency cannot be treated as an

inherent wedge in the prosecution case.

On the other hand, we note with concern the indifference of the

trial Court who ought to have invoked powers under section 311 Cr.P.C.

and summoned the treating doctor to depose in the course of trial. Bed-

head ticket had been collected by the investigating officer P.W. 15. But,

the investigating officer did not take steps to produce the same in court

which in my view is another laxity on the part of the investigating agency.

Oral dying declaration had been made by the victim to her relations as

well as independent witnesses prior to her admission to the hospital.

Hence, non examination of the doctor who had treated the victim at the

hospital or failure to produce hospital records does not impact the

prosecution case with regard to the credibility of the dying declaration.

Dying declaration is corroborated by other evidence on record.

P.W. 15 investigating officer in the course of investigation seized a

jar of kerosene oil as well as a match stick from the place of occurrence.

These circumstances corroborate the dying declaration made by the victim

and prove the same to be a truthful and voluntary one.

In Vijay Pal vs. State (Government of NCT of Delhi)2 the Apex Court

held oral dying declaration if truthful and voluntary can be relied upon to

bring home the guilt.

Dying declaration also finds corroboration from the notings in the

inquest report which was prepared by P.W. 16, the police officer attached

to Burdwan police station and the executive magistrate P.W. 8 which are

marked as Exhibit 2 and Exhibit 3 respectively.

P.W. 14 Debasish Sarkar, post mortem doctor also found first and

second degree burn injuries all over her body except forehead, eyes and

lower half of both legs. He opined that death of the victim was due to

effects of shock and septic absorption from the burn injuries and ante

mortem in nature.

In the light of the aforesaid discussion, I am of the opinion

prosecution case is proved beyond doubt. Conviction and sentence of the

appellant is upheld.

Appeal is, accordingly, dismissed.

This Court is informed appellant is on parole.

Parole of the appellant is forthwith cancelled and he is directed to

surrender before the trial court to serve out remainder of his sentence

failing which the said Court shall take appropriate steps for his

apprehension in accordance with law.

(2015) 4 SCC 749 (para 16-22)

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon him in terms of section 428 of the Code of Criminal Procedure.

Lower court records along with copies of this judgment be sent

down at once to the learned trial court as well as the Superintendent of

Correctional Home for necessary compliance.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Bivas Pattanayak, J.)                              (Joymalya Bagchi, J.)




tkm/sds/PA(Sohel)