JOYTOSH BANERJEE,J. - (1.) THE present appeal is directed against judgment dated 29th of November, 1994 passed by 6th Additional District and Sessions Judge. 24 -Parganas (S) in Sessions Trial No. 5(6) /94, by which the learned Judge convicted the appellant Section 302 of the I.P.C. and sentenced him to suffer RI. for life and to pay fine of Rs. 1.000/ - in default to suffer further RI. for 6 months.
(2.) BRIEFLY stated the case of the prosecution is that on 11 -10 -1993 at about 1 a.m. the appellant/accused poured kerosene oil on the body of his wife Sumitra Das and thereafter put her on fire with the intention to cause the murder of his wife. As a result of this the victim Sumitra Das sustained severe burn injuries on her person and she was taken to the RG. Kar Hospital by her mother -in -law with the help of their neighbours. The victim Sumitra was admitted in the said hospital with 95% burn injuries on her person. In the hospital the victim informed the doctor that her husband had poured kerosene oil on her body and put fire on her person. Subsequently a dying declaration was recorded by one police officer of Chitpur P.S. in presence of the doctor of the hospital wherein the victim clearly disclosed that her husband put fire on her person. On the basis of her statement a case was started in the Chitpur P.S. against the appellant/accused. During the investigation the victim Sumitra succumbed to her injuries and as a result of it the case which was originally started under Section 307. I.P.C. was converted to a case under Section 302. I.P.C. During investigation the I.O. (P.W. 19) visited the P.O. that is to say 47/10. Lock Gate Road where in one room the accused used to reside with his wife and children and his mother used to stay in the outside varandah. The I.O. examined the witnesses and recorded their statements. He also apprehended the accused and obtained P.M. report and other relevant report submitted charge -sheet under Section 302. I.P.C. against the appellant/accused. Subsequently the learned Additional Sessions Judge on consideration of the materials on record raised the charge under Section 302. I.P.C. The trial proceeded when the appellant pleaded not guilty and clamed to be tried. Defence case as it emerged from the cross -examination of different witnesses was a complete denial that the appellant was involved in connection with the unnatural death of his wife. Sumitra. The learned Sessions Judge in his judgment discussed the evidence on record in detail and pointed out that the witnesses examined on behalf of the prosecution clearly stated in their evidence that in the night of 11 -10 -1993 they found the victim Sumitra who was burning and they managed to put off the fire. There was also evidence that some of them took Sumitra to hospital where subsequently she died. At the same time the learned Judge pointed out that there was no direct eVJdence to show that it was the appellant/accused who actually put fire on the body of his wife Sumitra causing her death. Actually the witnesses who are people of the same locality tried to shield the accused from a possible conviction by alleging that the accused was not present at the spot that is to say in his house in the night of incident. Therefore the learned Additional Sessions Judge rightly pointed out that when there was absence of direct evidence the Court could some to a conclusion placing reliance on the' circumstantial evidence and by judging the surrounding circumstances. He noted in his judgment that the admitted position of the case was that the incident took place in the dead of the night in a house where the accused the deceased their two minor children and the mother of the accused used to stay. The evidence of the mother of the accused rp.W.6) clearly indicated that she used to stay in the varandah of the house whereas the accused alongwith his wife (victim) and children used to stay inside the room. He further pointed out to the evidence including the oral testimony of P.W.6 that the accused and his wife used to quarrel frequently with each other. The evidence of P.W. 2 a neighbour indicated .that there was a quarrel between the accused and his wife in the evening of the night of incident. He also pointed out that while that the relevant witnesses including the mother of the accused and some of his neighbours tried to indicate that the accused/appellant was absent in his house at the time of incident, at the same there was no evidence to suggest where the accused/appellant was at the relevant point of time. Even the accused on being examined under Section 313, Cr.P.C. did not try to explain where he was at the relevant point of time. He further pointed out that there was no attempt on the part of the appellant/ accused to visit the hospital after the victim was admitted there and this conduct on the part of the husband was of great suspicious in nature. Coupled with the circumstances, the learned Judge considered the dying declaration recorded by a police officer in presence of a doctor. Further pointed out that at the time of admission of the patient the doctor who admitted the victim found her fully conscious. Even that doctor recorded a statement of the patient, which statement also indicated that the husband of the victim the present accused/appellant was responsible for the incident complained of.
(3.) IN the present appeal, the only question for our consideration is how far the conviction recorded by the learned Additional Sessions Judge can be sustained on the basis of such dying declaration? While the learned Additional Public Prosecutor appearing for the respondent/State fully supported the judgment and the conviction awarded to the appellant/accused: Mr. Roy appearing for the appellant/ accused submitted that no conviction in the instant case could be awarded on the basis of the alleged dying declaration recorded by a police officer without any apparent reason. In this connection, he has relied on the case of Dalip Singh &. Ors. v. State of Punjab1. In para 8 of such reported decision the Apex Court made the following observation. "There were two dying declarations of Ram Singh -one oral and the other written - which was recorded by the Assistant SubInspector of Police, P.W. 28 on December. 12, 1975. The oral dying declaration was made to P.W. 11. Tara Singh, Neither of the dying declaration was relied upon by the High Court because he had named Baldev Singh also. We may also add that although a dying declaration recorded by a police officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub -Section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor." In observing so, the Apex Court relied on a previous decision of that Court in Munna Raja v. State of M.P.. (1976) 3 SCC 104: 1976 SCC (Cr.) 376: (1976) 2 SCR 764. Wherein it was observed that the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. But at the same time, the Hon'ble Court clearly observed that they did not mean to suggest that such dying declaration was always untrustworthy, but what they wanted to emphasize was that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and one recorded by the police officer might be relied upon if there was no time or facility available to the prosecution for adopting any better method. We have very carefully gone through the reported decision (supra) to find that in that case the written dying -declaration was .recorded by one head constable, at the direction of Assistant SubInspector of Police at the spot. The Apex Court found that there was a difficulty in relying upon such dying declaration made by the deceased Teja Singh because besides making a statement as to the cause of his death the said person, namely. Teja Singh also described in such statement how his elder brother Jetha Singh had also been murdered by the appellants. Although nobody actually saw the appellants murdering the said Jetha Singh and the place where the said person was murdered was about a furlong away from the house of Teja Singh, who made the dying declaration. In that background the Apex Court observed that the dying declaration seemed to be otherwise truthful, but for the fact that it could not be within the knowledge or vision of Teja Singh that Jetha Singh was murdered by the appellants. Therefore, his statement indicating how his elder brother Jetha Singh was murdered in his dying declaration made the statement a bit doubtful. In that background, the Apex Court made such observation as noted above. But in this case, the facts and circumstances were completely different. Here the victim Sumitra Das was taken to R.G. Kar Hospital. Calcutta in the very night of the incident. From the evidence of P.W.7, Dr. Naba Kr. Dey, a medical officer posted as emergency medical officer of R.G. Kar Medical College Hospital. We find that the doctor had the occasion to examine the victim Sumitra Das who was brought to the hospital by her mother -in -law Subasini Das (P.W. 6) and on examination the witness found that the patient was conscious. Her whole body was burnt. He inquired from the patient as to the cause of the injury and the patient gave the history of burn by stating that her husband had poured kerosene oil on her body and thereafter setting her on fire, following a quarrel at about 1 a.m. on that day in their residence. Ext. 1 is the report of admission in the R. G. Kar Medical College Hospital. Calcutta which indicated that victim Sumitra Das of 7 Lock Gate Road, Calcutta -2, P.S. Chitpur was brought by Subasini Das (mother -in -law) and the patient was admitted at 4.50 a.m. on 11 -10 -1993 and the patient made a clear statement to the doctor that her husband poured kerosene oil over her body and applied fire following a quarrel. The doctor further noted that the patient was conscious. It transpires from the cross -examination of the witness that it was suggested to the doctor that he incorporated the time and date alleged to have been stated by the patient subsequently. This suggestion was denied by the doctor who added that there was a correction regarding the mention of the time of the incident by the patient and this was due to the fact that as the condition of the patient at that time was very poor so she could not disclose the exact time at that moment. Subsequently, when she disclosed before the doctor that the incident took place at about 1 a.m. the witness noted the same in Ext. 1 and put his initial there. The witness also denied a suggestion that the patient was unconscious at the time of admission. In our considered opinion, we do not finding any reason to disbelieve one independent witness, a doctor, to come to a conclusion that the patient was unconscious at the time of admission relying on the evidence of the mother of the accused and some of his neighbours who had enough reason to depose in that manner to save the accused from a possible conviction. The fact remains here that unlike the reported case relied on by the learned Advocate for the appellant (supra), in this case before making the dying declaration which was recorded by a Sub -Inspector of Police in presence of a doctor, the deceased made the first dying declaration at the time of her admission in the hospital before a doctor who found her conscious and fit to give the statement. That apart unlike the case reported the first dying declaration before the doctor at the time of admission did not suffer from any infirmity as noticed by the Supreme Court in the reported case. We get from the evidence of P.W. 19, S.I., S. Mukherjee of Chitpur P.S. that as per direction of the O.C. he accompanied S.I. B.K. Das to the hospital for recording the statement of the victim and went to R.G. Kar Hospital. Going there, they met Dr. Sankar Das Chatterjee and after obtaining his permission, S.I. B.K. Das recorded the statement of the victim in presence of the witness as well as in presence of the doctor. The evidence of P.W. 15, S.I. B.K. Das who recorded the statement the dying declaration of the victim fully disclosed the circumstances under which this was recorded. It was his evidence on 11 -10 -1993 he went to R.G. Kar Hospital by making G.D. Entry No. 792 dated 11 -10 -1993 (Ext. 8) to enquire into the matter. At that time he found that the patient was lying in the casualty block (burn section) ward on bed No. 32. Reaching the hospital he contacted the doctor and informed him that he wanted to record the statement of the patient. But the doctor after examining the patient did not give permission as at that time the patient was not in a position to give any statement. Subsequently, he again went to the hospital alongwith S.I. S. Mukherjee. Reaching the hospital they again went to the patient along, with doctor who at that time gave them permission to record her statement. The witness further disclosed that the doctor was present when dying declaration of the patient Sumitra Das was recorded. P.W. 13, Dr. Sankar Das Chatterjee stated in his evidence that on 11 -10 -1993 he was attached to casualty block (burn ward) of the R.G. Kar Hospital. One Sumitra Das was admitted in that ward in bed No. 32 with 95% burn injuries. One police officer of Chitpur P.S. came to the ward and wanted to record the dying declaration of the said patient Sumitra Das in presence of the witness. The doctor permitted him to record the statement of the patient Sumitra Das only after he (doctor) had examined her and found her to be fully conscious. In his evidence P.W. 13 further disclosed that the victim Sumitra Das gave the statement before the police officer in his presence and the police officer recorded the statement within his hearing. He also identified his signature on the dying declaration recorded by S.I., B.K. Das (P.W.15) and such signature has been marked Ext. 6. He further disclosed that the L.T.I. of the patient was taken on the dying declaration in his presence after the statement had been recorded. Thus from the total evidence adduced from the side of the prosecution regarding the circumstances leading to the recording of the dying declaration of the victim by the police officer (P.W. 15), it transpires that the same was done with the prior permission of the attending doctor and the same was recorded in presence of the doctor. After recording of the statement (marked Ext. 6/1), which is second dying declaration of the victim, doctor not only put his signature on the document which was marked Ext. 6, he also incorporated a certificate indicating that the patient was conscious and the statement was recorded in his presence and within his hearing. From the dying declaration it transpires that the victim clearly stated there that her husband poured kerosene oil on her person and thereafter set her on fire at about 1 a.m. in the night and such incident took place inside their room after a quarrel between the victim and her husband. On going through such statement, which is the dying declaration, we do not find any infirmity in such dying declaration to discard the same merely because it was recorded by a Sub -Inspector of Police and not by the doctor himself. The entire facts and circumstances disclosed in the evidence discussed above clearly indicated that the doctor permitted the police officer to take the dying declaration of the victim on being satisfied that the victim had the capacity to make the statement, indicating how she sustained the injuries seen on her person (here the 95% burn injury). The doctor himself was present at the time of recording the statement by the police officer and he also incorporated a certificate to that effect after such dying declaration was recorded by the police officer. It is to be mentioned here that Section 162(2). Cr.P.C. in expressed terms excludes from its purview statements falling under Section 32(1) of the Evidence Act. So the statement of the deceased to the police is admissible as a dying declaration.;