Ratan Roy & Ors vs State Of West Bengal
2022 Latest Caselaw 826 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. 314 of 2006 Ratan Roy & Ors

-Vs-

                               State of West Bengal


For the Appellants      :       Md. Shahjahan Hossain, Adv.
                                Ms. Sanjida Sultana, Adv.

For the State           :       Mr. Neguive Ahmed, Ld. A.P.P.
                                Ms. Amita Gaur, Adv.

Heard on                :       25.02.2022

Judgment on             :       25.02.2022


Joymalya Bagchi, J. :-

We are informed during the pendency of the appeal the appellant

No. 1, namely Ratan Roy has expired. Hence, the appeal abates so far as

appellant No.1 is concerned.

Appeal is directed against judgment and order dated 28 th March,

2006 and 29th March, 2006 passed by the learned Additional Sessions

Judge, 5th Court, Barasat, North 24 Parganas in sessions Trial No. 2(5)

2002 in Sessions case No. 7(4) 2001 convicting the appellants for

commission of offence punishable under Section 302/34 of the Indian

Penal Code and sentencing them to suffer imprisonment for life and to

pay a fine of Rs.5,000/-, each in default, to suffer simple imprisonment

for five months each more.

Prosecution case, as alleged against the appellants is to the effect

that on 19.07.1997 between 1.30 p.m. to 1.45 p.m. the appellants being

Ratan Roy elder brother-in-law of the victim, Tarun Roy, her younger

brother-in-law and Padma Roy, wife of Ratan Roy jointly attacked the

deceased Manju on the stair case of the house where all of them were

residing in joint mess and after pouring kerosene oil on her body set her

on fire. Victim cried for help. Hearing her cry, a neighbour (P.W. 10)

rushed to the spot. Hearing cries, another sister-in-law of the victim,

Aloka, who was sleeping in her room also came out and noticed the victim

lying with burn injury in the stair case. She informed the incident to

Ashok Manna, brother of the deceased (P.W. 1). Ashok came to the place

of occurrence and found her sister lying with burn injuries. On enquiry,

her sister stated the appellants tied her and poured kerosene oil and set

her on fire. He went to Khardah police station and informed the police.

Thereupon, police officer (P.W. 17) came to the spot. The victim stated

before the police officer that the appellants poured kerosene oil on her

body and set her on fire. P.W.17 reduced the aforesaid statement into

writing (Exhibit 8). Victim was shifted to the B.N. Bose Hospital by her

brother. At the time of admission, she again reiterated her statement

before the medical officer (P.W. 8) who reduced the same into writing

(Exhibit 3). While she was struggling for life in the hospital, her husband

(P.W. 14) came to the hospital and she narrated the incident to him. In

the meantime, P.W. 1 went to the police station and lodged First

Information Report resulting in registration of Kardah P.S. case No.299

dated 19.07.1997 under Section 336/307/34 of the Indian Penal Code.

Subsequently, around 10.45 p.m. the victim succumbed to her injuries.

Section 302 of the Indian Penal Code was added to the F.I.R.

In conclusion of investigation, charge-sheet was filed and charge

was framed under Section 302/34 of the Indian Penal Code against the

appellants. Appellants pleaded not guilty and claimed to be tried. In

course of trial, prosecution examined 17 witnesses and exhibited number

of documents.

Defence of the appellants was one of innocence and false

implication. In conclusion of trial, the trial judge by the impugned

judgment and order 28th March, 2006 and 29th March, 2006 convicted

and sentenced the appellants, as aforesaid.

Learned Advocate appearing for the appellants submits that the

appellants have been falsely implicated due to prior rivalry between the

brothers over share in joint property. Victim suffered 100% burn injuries

and could not have been in a position to make statement. Dying

declarations relied by the prosecution are, therefore, concocted and ought

not to be believed. Prior to lodging First Information Report, P.W.1 had

gone to the police station and had informed the police. P.W. 17 further

claimed he recorded the statement of the victim Exhibit 8 prior to lodging

of F.I.R. Hence, written complaint of P.W. 1 cannot be treated as first

recorded report. Dying declaration by P.W. 17 (Exhibit 8) is a

manufactured document. None of the witnesses have supported P.W. 17

with regard to the written dying declaration. This fact is also absent in

the F.I.R. P.W. 8 medical officer in her cross-examination admitted she

did not fallow procedure while recording dying declaration. No certificate

was given by P.W. 8 that the victim was conscious and was fit to make

the declaration. On the other hand, notings in the medical papers show

victim was precarious and she had suffered 100 per cent burn injuries.

That apart, oral dying declarations made to P.W. 1 or P.W. 14 are not

corroborated by any other witnesses. Thus, none of the dying declarations

are unblemished and the possibility of false implication of the appellants

due to prior enmity cannot be ruled out. Hence, the appeal is liable to be

allowed.

Mr. Ahmed, appearing for the State argues prosecution has proved

its case beyond doubt. There are four dying declarations in the case. The

victim initially made an oral dying declaration to her brother P.W. 1.

Thereafter, police came to the spot and the victim made the second dying

declaration before the police in the presence of a number of witnesses. In

the hospital at the time of admission her statement implicating the

appellants was recorded in the injury report by the doctor, P.W. 8.

Thereafter, she again made similar statement to her husband P.W. 11

around 5.30 p.m. when he visited her in the hospital. All these dying

declarations are consistent to one another and establish the role of the

appellants in pouring kerosene oil and setting the housewife on fire.

There is no hard and fast procedure in recording a dying declaration.

Certificate by medical officer is not a sina qua non for its admissibility

provided the evidence on record clearly establishes the victim was

conscious and in a fit state to make the declaration. Extent of burn

injuries is not the only determining factor to test the capacity of the

victim to make such statement. Dying declarations receive corroboration

from the attending facts and circumstances including the post mortem

doctor who found that the victim had died due to burn injuries which

were ante mortem in nature. Hence, the appeal is liable to be dismissed.

Prosecution case primarily hinges on the dying declarations made

by the victim.

P.W. 1, Ashok Manna is the brother of the deceased and the

informant in the case. He deposed his sister Manju was married to

Khokan Roy. They used to reside in joint mess with the other in laws

including the appellants. He was informed of the incident by Aloka Roy,

elder sister in law of the deceased. Hearing the news, he went to her

matrimonial home at noon. He found the victim lying in the staircase.

She stated that the appellants poured kerosene oil on her and set her

ablaze. Hearing this, he went to Khardah PS and reported the incident

verbally. Police came to the place of occurrence. He shifted his sister to

BN Bose Hospital where she narrated the incident to the doctor. On that

day, Manju died. He lodged F.I.R. which was scribed by P.W. 4. He was

extensively cross examined but his deposition with regard to oral dying

declaration made to him by his sister remained unshaken.

The second dying declaration was made by the victim to the police

officer, P.W. 17 who came to the spot after being informed by P.W. 1. P.W.

17, Alok Kanti Lodh deposed on 19.07.97 at 14.25 hours he received RTM

at Khardah police station to the effect that Manju Roy, wife of Khokan

Roy was found with burn injuries lying in the staircase between the

ground floor and first floor of the house. Duty officer recorded such

information as GD entry no. 1416, Exhibit 7. Thereafter, he proceeded to

the place of occurrence and in the presence of local witnesses, victim

made a dying declaration. Victim stated her second brother-in-law, Ratan

Roy, his wife Padma Roy and another brother-in-law, Tarun Roy poured

kerosene oil on her and set her on fire. He reduced her statement into

writing, Exhibit 8. Thereafter, victim was taken to the BN Bose Hospital.

P.W. 8 Dr. (Mrs.) Sovana Saha was on duty at the emergency

department at the hospital. She admitted the patient and recorded in the

injury report that the patient had stated to her that her brother in law

Ratan Roy, his wife Padma Roy and another brother-in-law, Tarun Roy

poured kerosene oil and set her on fire at her residence. She proved the

injure report Exhibit 3. This is the third dying declaration of the victim.

The final dying declaration was made by the victim to her husband (P.W.

11) who visited her in the evening in the hospital.

Learned counsel for the appellants criticizing the dying declaration

submits that the victim had suffered 100% burn injuries and there is no

certificate by a doctor that she was in a fit state to make statement.

Hence, the dying declarations ought not to be believed. In addition

thereto, he submits that the oral dying declaration made to P.W. 1 and

P.W. 11 is not corroborated by others and P.W. 1 is completely silent with

regard to the dying declaration made by the victim to the police officer

P.W. 17. This fact is also absent in the FIR.

In Khushal Rao vs. State of Bombay1, the Apex Court was called

upon to decide whether a dying declaration can be the sole basis of

conviction. Upon analyzing the law, the Court summarized as follows:-

"...(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the

AIR 1958 SC 22

reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

In Padmaben Shamalbhai Patel vs. State of Gujarat2 a three-Judge

Bench of the Apex Court held that a dying declaration, if voluntary and

truthful, can be the sole basis for conviction. However, to do so, the court

must satisfy itself whether the victim was in a position to identify her

assailants and had made a truthful and voluntary disclosure of the same.

It was not a product of prompting or tutoring. The court must also satisfy

itself whether the victim was conscious and in a fit state to make

statement. However, in order to arrive at such satisfaction it is not

mandatory that a certificate by a medical officer is to be produced.

In Laxman vs. State of Maharashtra3 a Constitution Bench of

the Apex court, inter alia, held as follows:

"...Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method

(1991) 1 SCC 744

(2002) 6 SCC 710

of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstance of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony by the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

If the ocular version of witnesses and other attending

circumstances establish the fact that the victim was conscious and in a

fit state of mind, to make the statement absence of certificate to that

effect by a medical personnel would not affect the credibility of the dying

declaration.

Percentage or degree of burns would, not , by itself, be decisive of

the credibility of a dying declaration. In Purshottam Chopra and

Another vs. State (NCT of Delhi)4, the Apex Court while dealing with the

reliability of dying declaration made by a victim with 100% burn injuries,

held as follows:-

"21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court. 21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

(2020) 11 SCC 489

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement.

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

(emphasis supplied)

In the event the declaration is found to be voluntary, truthful and

does not suffer from any blemish it can form the sole basis of conviction.

There is neither any rule of law nor rule of caution which requires

corroboration to sustain conviction on the basis of such declaration.

In the light of the aforesaid legal propositions, let me test the

credibility of the dying declarations made by the victim. First dying

declaration was made by the victim to her brother, P.W. 1. It is argued

P.W. 9 and P.W. 10 arrived at the spot earlier than P.W. 1 but no

declaration had been made to them. This renders this dying declaration

improbable and a manufactured one.

I have considered the aforesaid submissions in the light of the

evidence on record. Hearing hue and cry, P.W. 9, another sister-in-law of

the victim rushed out of her room and found the latter lying with burn

injuries on the staircase. Similarly, P.W. 10, a neighbour came to the

spot. Immediately, P.W. 9 informed P.W. 1, brother of the victim who

promptly arrived at the spot. Thereafter, victim narrated the incident to

her brother. This conduct of the victim to confide in her brother after he

had arrived at the spot is most natural. Assailants were her in laws and

the incident occurred at the matrimonial home. Only upon her brother

arriving at the spot, the victim gathered courage to narrate the incident to

him at the earliest opportunity. There is hardly any time lag between the

incident and the statement made by the victim to her brother, P.W. 1. It

is also apposite to note that the oral dying declaration made to P.W. 1 is

disclosed by him in the F.I.R. which was lodged shortly after the incident.

Thus, I am of the opinion victim made the oral dying declaration to her

brother, P.W. 1 at the earliest opportunity which is voluntary, truthful

and does not suffer from any infirmity.

Thereafter, P.W. 1 informed the police and the fact was diarized at

the police station. Investigating officer P.W. 17 came to the spot and the

victim made similar oral declaration to him. Oral declaration to P.W. 17 is

corroborated by most of the witnesses including independent witnesses,

namely, P.Ws. 3, 5, 6 and 10. It is contended P.W. 1 is silent in Court

about any statement by the victim to P.W. 17. There is no reference in the

F.I.R. too. Scanning the F.I.R., I find P.W. 1 stated her sister had talk

with the police. However, in Court he omitted to state such fact. This

omission is not of much consequence as all other witnesses present at

the spot has corroborated this fact. Hence, I am of the opinion, fact that

the victim made oral dying declaration to P.W. 17 is proved.

However, I am unwilling to give credence to the document exhibited

as Exhibit 8, namely, written dying declaration scribed by P.W. 17. None

of the witnesses has stated P.W. 17 had reduced the oral dying

declaration in writing. Even the so-called signatories to the said written

declaration, namely, Dilip De Sarkar (P.W. 5) and Badal Mukherjee (P.W.

6) have not corroborated P.W. 17 in this regard. P.W. 17 may have

subsequently manufactured the written dying declaration which does not

inspire confidence.

It is trite law if the evidence of a witness is partly true and partly

false, it is the duty of the court to separate the grain from the chaff and

rely upon it to the extent it inspires confidence. Distilling the evidence of

P.W. 17 in the backdrop of the other evidence on record, I hold though

his deposition with regard to oral dying declaration is convincing but I am

unable to accept his version that he had transmitted the oral declaration

of the victim into writing also.

The third and most vital dying declaration, in my estimation, was

recorded by the medical officer (P.W. 8). Victim was brought to the

hospital around 3.30 p.m. and her statement was reduced into writing by

P.W. 8 in the injury report, Exhibit 3 in discharge of her official duties.

P.W. 8 is an independent witness and that too a medical personnel.

Though she noted victim had suffered 100% burn injuries and her

condition was poor, her deposition shows that the victim was conscious

and capable of making a cogent statement with regard to the cause of

death. She also states no one was present when the victim made the

declaration ruling out any possibility of tutoring. Thus, all the parameters

to test the reliability of a dying declaration, namely, voluntariness and

capacity to make the statement are clearly satisfied in the written dying

declaration recorded by the medical officer in the injury report.

It has been argued the medical officer did not follow due procedure

in recording statement. P.W. 8 has clarified the position. She stated

condition of the victim was very serious and therefore, she felt it

imperative to record the statement immediately. There was no time to

summon a Magistrate to record the statement. Conduct of the medical

officer in promptly recording the statement of a dying lady as she felt

there was no time to summon a magistrate clearly discloses her authentic

and genuine effort to record the truthful version of the victim which

would otherwise have been lost forever.

Finally, the victim made an oral dying declaration to her husband

(P.W. 11) who visited her in the hospital during visiting hours. This was

her last statement which is consistent with her earlier dying declarations

and implicate the appellants.

Evidence of all the prosecution witnesses including that of the

medical officer (P.W. 8) shows that the victim was conscious at all points

of time and in spite of her very serious injuries and grave condition was

in a fit state to make cogent statements implicating the appellants.

In view of the law declared in Laxman (supra), authorities relied on

by the appellants, namely, Paparambaka Rosamma & Ors. vs. State of

Andhra Pradesh5 and Ramilaben Hasmukhbhai Khristi & Anr. vs. State of

Gujarat6 are inapposite and I am inclined to follow the ratio in of

Laxman (supra) in that regard.

Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, Andhra

Pradesh7, relied on by the appellants is also factually distinguishable. In

the cited case post mortem doctor had opined the victim was not in a fit

state to make a statement and the dying declarations recorded therein

were inconsistent to one another. None of the aforesaid factors are

evident in the present case. On the contrary, evidence of medical officer

(P.W. 8) shows that the victim in a conscious and fit state made

statements to her which she reduced into writing. The other prosecution

AIR 1999 SC 3455

AIR 2002 SC 2996

(2007) 15 SCC 465

witnesses also consistently state the victim was conscious and fit to make

statement. All the dying declarations are consistent to one another and

receive corroboration from the attending circumstances of the case.

In the present case, dying declarations made by the deceased are

not only voluntary, truthful and consistent but are corroborated by other

evidence on record. The appellants are relations of the victim. Appellant

no. 1 (since deceased) was her elder brother-in-law, the appellant no. 2

was his wife and appellant no. 3 is another brother-in-law of the

deceased. They used to reside with the victim and her husband in joint

mess. Evidence has come on record there was inimical relationship

between the brothers giving rise to motive to commit the crime. In the

afternoon on the fateful day, the victim was set ablaze in the staircase of

the house occupied by her and the appellants. The manner and

circumstances in which the victim was set ablaze leave no doubt in one's

mind that she was able to identify her assailants. Immediately after the

incident another sister-in-law of the victim (P.W. 9) who woke up by the

hue and cry, came out of her room and found the victim lying with burn

injuries in the staircase. P.W. 10, a neighbour also heard cries and came

to the spot. These witnesses have corroborated the circumstances in

which the victim had suffered burn injuries in the staircase of the house.

They found the victim lying on the staircase of the house with 100% burn

injuries. Extent of injuries suffered by the victim and the place of

occurrence clearly establish that the burn injuries suffered by her could

neither be accidental nor suicidal. On the other hand, the aforesaid

circumstances leave no doubt in one's mind that she have been set on fire

in the staircase of the house. It is argued that the appellants were not

seen by P.W. 9/10 in the staircase. One must not lose sight of the fact

that the rooms of the appellants were in the ground floor of the building

and, therefore, immediately after commission of the offence, they had

taken refuge in their rooms and were not found in the staircase. Hence,

failure of P.W. 9 and P.W. 10 to notice the presence of the appellants in

the staircase does not militate against the truthfulness of the dying

declarations. Appellants ordinarily resided in the aforesaid house and no

defence plea of alibi has been raised by the appellants. These

circumstances coming out from the evidence on record substantially

corroborate the consistent dying declarations made by the victim that the

appellants after holding her in the staircase had poured kerosene oil and

set her on fire. Thus, the aforesaid dying declarations receive substantial

corroboration from the other materials on record.

In the light of the aforesaid discussion, I hold that the victim was

conscious and in a fit state to make the dying declarations in question.

All the dying declarations made by her are voluntary, truthful and

consistent to one another. They also receive corroboration from other

evidence and the attending circumstances of the case.

Thus, I consider it safe to rely on the aforesaid dying declarations

to record a finding of guilt against the appellants.

Conviction and sentence of the appellants are upheld.

Appeal so far as it relates to appellant Nos. 2 and 3 is accordingly

dismissed.

Period of detention suffered by the appellant Nos. 2 and 3 during

investigation, enquiry and trial shall be set off from the substantive

sentence imposed upon the appellant Nos. 2 and 3 in terms of Section

428 of the Code of Criminal Procedure.

Copy of the judgment along with Lower Court Records be sent down

to the trial court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal formalities.

I agree.

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




sdas/tkm/cm/PA (Sohel)