Calcutta High Court (Appellete Side)

Arun Bauri vs Unknown on 6 January, 2023

06.01.2023                                  CRA 206 of 2006
  S/L. 35
Court No.12        In the matter of: Arun Bauri
 Suvayan/
  Sourav
                                                                          ....Appellant.

                   Ms. Chandreyi Alam
                                                                    ...for the appellant.
                   Ms. Zareen N. Khan
                   Mr. Md. Kutubuddin
                                                                        ...for the State.

              1.

The instant appeal arises out of a judgment of conviction dated

18.01.2006 and order of sentence dated 19.01.2006 as passed

by learned Additional Sessions Judge, 1st Court, Asansol in

Sessions Trial No. 3 of 2005 arises out of Sessions Case No. 53

of 2004 whereby and whereunder the said court by the

impugned judgment convicted one Arun Bauri to suffer

imprisonment for life and pay a fine of Rs. 5,000/-, in default

to suffer rigorous imprisonment for a further period of 6

months for committing offence under Section 302 IPC. It is

pertinent to mention herein that the said court by the self-

same judgment, however, found the said accused not guilty

under Section 498A IPC. The convict, Arun Bauri thus felt

aggrieved and preferred the instant appeal.

2. For effective disposal of the instant appeal, the facts leading to

the initiation of the aforesaid Sessions Trial is required to be

dealt with in a nutshell.

3. One Paran Bauri (P.W. 2) of village Kakhoya, Asansol (N) P.S.

lodged a written complaint with the Officer-in-Charge Asansol

(N) P.S. stating inter alia that at about 12 years back his elder

sister Keti Bouri @ Bulu Bouri @ Tulu Bouri's marriage was

solemnized with the present appellant as per Hindu rites and

customs and in such marriage his father had given various

nuptials gifts but subsequently on account of further demand

of dowry, the said accused used to inflict torture both physical

and mental upon his said elder sister. It is the further version

of the de facto complainant that on the said date, i.e.,

10.10.2001 at about 6.00 p.m. he came to learn from the

people of Nischinta village that his said elder sister Keti Bouri

@ Bulu Bouri @ Tulu Bouri was ablazed by her husband Arun

Bauri by poring kerosene oil on her person. It has also been

disclosed that thereafter his said sister was taken to Asansol

hospital for her treatment. On the basis of such written

complaint, Asansol (N) P.S. Case No. 132 of 2001 dated

11.10.2001 under Sections 498A/307 IPC was started,

investigation was taken up and on completion of the same

charge-sheet was submitted under Sections 498A/302 IPC

since the said victim succumbed to her injury in course of the

investigation.

4. Before the learned trial court the defence case is of complete

denial as well as false implication.

5. After commitment of the said case, the case record was

transferred to the learned trial court for trial and disposal.

LCR reveals that on 24th September, 2009 learned trial court

on perusal of the entire materials as placed before him framed

charged under Sections 302/498A IPC against the said

accused and since the said accused pleaded his innocence and

claimed to be tried, the said trial proceeded. Trial Court record

reveals further that for bringing home the charges as framed

by the learned trial court, the prosecution has examined 14

witnesses in all and several documents have been exhibited on

their behalf. Learned trial court on perusal of the entire

evidence both oral and documentary as adduced by the

prosecution witnesses passed the impugned judgment of

conviction and hence this appeal.

6. On perusal of the trial court record, it reveals to us that P.W. 1

at that material time was the Acting Superintendent of Asansol

Sub-divisional Hospital and in his examination-in-chief he has

testified that on 10.10.2001 at about 7.00 p.m. the victim was

brought to the said hospital with 80 per cent burn injuries on

her body and he personally examined the victim at Emergency

Department and then admitted her to the hospital. In course

of his examination-in-chief he duly proved the bed head ticket

of the patient. He further testified that on 11.10.2001 the

Executive Magistrate, Asansol recorded the dying declaration

of the victim at 2.00 p.m. and at the time of recording of such

dying declaration the patient was absolutely conscious and he

(P.W. 1) had personally witnessed the recording of such dying

declaration and thereafter put his signature on such dying

declaration as a witness. It is his further deposition that on

13.10.2001 the patient died at the hospital. Eventually, P.W. 1

is also the postmortem doctor who in course of his

examination-in-chief stated that he conducted postmortem

over the dead body of the victim and he has duly proved the

postmortem report wherein he expressed his opinion that the

said deceased died on account of shock as a consequence of

burn injuries as suffered by her and those injuries are ante-

mortem in nature.

7. Cross-examination of P.W. 1 reveals that at the time of

admission the patient was unconscious and she suffered burn

injuries all over her body but on 11.10.2001 that is on the day

of recording of her dying declaration, he noticed the said

patient was conscious and was able to speak. It is his further

version that the Executing Magistrate took 15 minutes time to

record the dying declaration. On the other day, in course of

his cross-examination he further stated that on the day of

admission of the victim the patient was unconscious and was

thus, not in a position to give her dying declaration, however,

on 11.10.2001 at about 2.00 p.m. the victim became fit for

giving dying declaration.

8. P.W. 2 being the informant in course of his examination-in-

chief practically echoed his version as made by him in his

written complaint which according to him was written as per

his instruction. In his cross-examination, he stated that he

did not witness the incident of setting fire upon her elder

sister's person by the accused.

9. P.W. 3 is the scribe of the written complaint and at the same

time he is a co-villager of the present appellant. In course of

his examination-in-chief he testified that the relationship

between the victim and the present appellant was strained and

on several occasions the accused used to beat his wife on

account of demand of money from her. He specifically stated

that on 10.10.2001 at about 5.00 p.m. the present appellant

Arun Bauri set his wife ablazed at his house and thus the

victim sustained severe burn injury over her person and,

thereafter, she was taken to Asansol Sub-divisional Hospital by

the local people. In his cross-examination, he stated that he

was not examined by the I.O. He, however, denied all other

suggestions as given to him. In considered view of us evidence

of P.W.s 4, 6, 9, 10, 12 and 13 are not much relevant for the

purpose of disposal of the instant appeal and accordingly, we

do no propose to discuss with their evidence here.

10. P.W. 5 according to the prosecution is a vital witness to them

who in his examination-in-chief stated that on the relevant day

and hour he was posted as an Executive Magistrate of Asansol

and in that capacity he recorded dying declaration of the victim

in presence of P.W. 1 and the I.O. In his examination-in-chief,

he stated that at the time of recording of such dying

declaration he noticed that the victim was conscious and was

able to speak. It is his further version that he recorded the

dying declaration of the victim at the said hospital, i.e., Sub-

divisional Hospital, Asansol under his own hand and,

thereafter, he put his signature on such dying declaration. He

further testified that the other witnesses also put their

respective signatures on dying declaration in his presence. It

is his further version that at the time of recording of dying

declaration, the attending physician certified in the bed head

ticket of the victim that the victim had sufficient capacity to

make dying declaration. He further stated that he was very

much satisfied with regard to the mental alertness of the

victim at the time of dying declaration. In course of his cross-

examination except giving some suggestions nothing could be

elicited from the mouth of the said Executive Magistrate which

may be detrimental to the prosecution. It is pertinent to

mention herein that the evidence of P.W. 5 get its due

corroboration from the evidence of P.W. 1 as well as of P.W. 8

whose evidence will be discussed later on so far as the

capability of the victim and mental alertness of the victim to

give dying declaration on the relevant day and hours that is at

the time of recording of dying declaration.

11. P.W. 8 is another medical officer (surgeon) of Sub-divisional

Hospital, Asansol. It is his version in his examination-in-chief

that on 10.10.2001 at about 9.00 p.m. the victim expressed

her willingness to give her a dying declaration and accordingly

he intimated such fact to the Superintendent of the said

hospital. The cross-examination of P.W. 8 is not much

relevant.

12. P.W. 11 is the recording officer who is in his examination-in-

chief had duly proved his endorsement on the written

complaint and the formal FIR. His cross-examination is not

much significant.

13. P.W. 14 is the I.O. in this case. In his examination-in-chief he

testified that on 11.10.2001 he was posted at Asansol (N) P.S.

and as directed by his Officer-in-Charge, he took up the

investigation. It is his further version that in course of

investigation, he went to the said hospital and met the victim.

He also examined her and recorded her statement. He visited

the place of occurrence, examined the witnesses and recorded

their statements under Section 161 Cr.P.C. In course of

investigation, he also collected the dying declaration of the

deceased as recorded by an Executive Magistrate (P.W. 5). It is

his further version that at the time of recording of dying

declaration, he as well as the Superintendent i.e., P.W. 1 were

present. He further testified that in course of investigation, he

seized one plastic jaricane of kerosene oil from the place of

occurrence under cover of a seizure list. He also seized bed

head ticket of the victim. He examined one Mangala Bouri who

in his statement under Section 161 Cr. P.C. stated that he had

rescued the victim by putting off fire on her body and on

completion of investigation, he submitted charge-sheet. In

course of his cross-examination, the said I.O. stated that on

11.10.2001 he met the victim and at that time he also found

her capable of speaking and at that time no relative of the

victim was present at the hospital. He denied the suggestions

as given to him in course of his cross-examination by the

defence.

14. At the time of argument, Ms. Alam, learned amicus curiae

draws attention of this Court to the Ext. 2 i.e., the alleged

dying declaration of the deceased. It is contended by her that

in the dying declaration there was some scoring off name

which raises serious doubt with regard to the veracity and

genuineness of the said dying declaration. It is contended by

him that since the learned trial Court while passing the

impugned judgment practically gave sole reliance upon such

dying declaration and since from such dying declaration a

suspicion arose with regard to its genuineness, the instant

appeal may be allowed by setting aside the impugned

judgment.

15. In course of his argument, Md. Kutubuddin, learned Counsel

for the State, however, opposes the contention as raised by Ms.

Alam, learned amicus curiae. It is argued on behalf of the State

that leaned trial court committed no error of fact or of law in

placing reliance upon the dying declaration of the deceased

i.e., Ext. 2. It is contended that on conjoint perusal of the

evidence of the prosecution witnesses, there is no reason to

disbelieve such dying declaration as well as the version of the

prosecution witnesses. It is thus argued that it is a fit case for

dismissal of the instant appeal.

16. We have meticulously gone through the entire materials as

available in the trial court record including the evidence of the

prosecution witnesses as well as the exhibits. We have also

gone through the impugned judgment. We have also

considered the rival submissions of the parties to the instant

appeal. In considered view of us for effective disposal of the

instant appeal, a look to the Ext. 2 i.e., the alleged dying

declaration is very much necessary. On perusal of the Ext. 2, it

appears to us with the wording of such dying declaration is

unambiguous, clear and short. So far as the capability and

alertness of mind of the victim at the time of recording of such

alleged dying declaration is concerned, we find from the

evidence of P.W. 5 (which gets due support from P.W.s. 1, 8

and 14) who in unequivocal manner categorically stated that

the victim on the relevant day and hour of recording of dying

declaration was absolutely alert and capable of giving such

dying declaration. It also reveals from the cross-examination of

the I.O that at the time of recording of dying declaration, no

relative of the victim was present at the hospital. All the

aforesaid witnesses in their evidence categorically stated as to

how such dying declaration was recorded and as to how they

put their respective signatures on such dying declaration. It is

pertinent to mention herein that the factum of scoring off the

name of one Smt. Shukla Chandra 'sister' has not been

confronted to any of the aforesaid witnesses who supported the

genuineness of the dying declaration. It is pertinent to mention

herein that such dying declaration was recorded in the Sub-

divisional Hospital, Asansol and, therefore, presence of a Sister

(Nurse) is not very much unnatural.

17. In view of such, we hold that the learned trial court is

absolutely justified in placing of his reliance upon such dying

declaration.

18. Now the question comes for consideration before us as to

whether a dying declaration can be the sole basis of the

conviction or not. In the plethora of decisions as passed by the

Hon'ble Supreme Court as well as the different High Courts of

our Country had expressly viewed that a dying declaration can

be the sole basis of conviction provided the same inspires

confidence of the Court. The same view was taken by the

Hon'ble Supreme Court in a reported decision Atbir vs. Govt.

NCT of Delhi reported in (2010) 39 SCC 1 where the Hon'ble

Apex Court expressed the following:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) It after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction,

even if there is no corroboration.

19. In view of the above proposition of law and in view of the

discussion (Supra) we thus find that before the learned trial

court the prosecution is very much successful in proving the

charge under Section 302 IPC against the present appellant

and thus, learned trial Court is very much justified in passing

the impugned judgment of conviction under Section 302 IPC

against the present appellant.

20. As a result, the instant appeal fails. The impugned judgment of

conviction dated 18.01.2006 and order of sentence dated

19.01.2006 as passed by learned Additional Sessions Judge,

1st Court, Asansol in Sessions Trial No. 3 of 2005 arising out of

Sessions Case No. 53 of 2004 is hereby affirmed.