- (1.) This appeal is directed against the judgment and order of conviction dated 24/6/2011 and 27/6/2011 respectively passed by the learned Additional District and Sessions Judge 2nd Fast Track Court, Chandannagar, Hooghly in Sessions Trial Case No. 8/11 arising out of Sessions Case No. 248/10 whereby and where under the appellants were found guilty under Section 302/34 of the Indian Penal Code and both were sentenced to suffer imprisonment of life and to pay a fine of Rs. 5,000/- each and in default to pay the fine, to suffer a further imprisonment for 6 (Six) more months. The period of detention already undergone during investigation, enquiry or trial was directed to be set off.
(2.) The instant case arises out of a written report made by one Ranjit Chakraborty before the Officer-in-Charge, Bhadreswar P.S. The said report dated 30/3/10 stated inter-alia that his elder sister, Bharati Mukhopadhyay was living in her house in which one Tarak Chakraborty was also living forcibly. A Civil Suit was pending regarding this matter in the Court of the learned Civil Judge (Junior Division) 1st Court, Chandannagar being Suit No. 60 of 2010. Upon getting copy of a notice of that suit, Tarak Chakraborty threatened his elder sister and he along with Pradip, Amiya Porel and 2 /3 other persons rebuked her with filthy language. At 6 A.M a neighbour informed him that his elder sister was ill. He at once went to the house and saw her lying in a burnt condition in front of the house. It was at that time that his elder sister informed him that Tarak Chakraborty, his wife and 2/3 more persons had poured kerosene oil on her body while she was alone and had tried to kill her by setting her on fire. According to the informant, the miscreants knew that if they were able to set her aflame then his elder sister would die and they did this to grab her property. The informant took his sister immediately to the Chandannagar Hospital and then to the Chinsura Hospital where she was struggling with life and death. The informant stated that he was so busy in the treatment of his sister that there was some delay in lodging the report. It appears that the written report was typed by somebody at the instruction of Ranjit Chakraborty. The informant, having seen it to be correctly typed, signed on the same. On the basis of the aforementioned written report, the Chandannagar P.S initiated P.S. Case No. 56/10 dated 30/3/2010 under Sections 307/506/326/34 of the Indian Penal Code. Subsequently with the death of the victim, charge sheet was submitted under Section 302/34 of the Indian Penal Code. Charges were read over and explained to the accused persons where after they were put on trial when they pleaded not guilty. The prosecution, has examined, in all 16 witnesses. They are --- P.W 1 Ranjit Chakraborti Complainant. P.W 2 Sulata Chakraborti Wife of the complainant. P.W 3 Prasanta Chakraborti Vasur of the victim. P.W 4 Pradip Kr. Show The helper of the ambulance. P.W 5 Sukdeb Ghosh Neighbour. P.W 6 Somnath Bhattacharya Neighbour of the victim. P.W 7 Dr. Subhash Ch. Hazra M.O. P.W 8 Sourav Jath Paternal son-in-law of the victim. P.W 9 Swapan Chakraborti The record keeper of the hospital. P.W 10 Soumen Singha Roy A.S.I. of Police P.W 11 Swatilekha Adhikari Nurse P.W 12 Dr. Jayanta Kr. Misra M.O. P.W 13 Debnath Sadhukhan R.O. P.W 14 S.I Prabir Dutta I.O. P.W 15 Dr. Samir Kr. Mondol M.O. P.W 16 Dr. Subhash Ch. Poddar M.O.
(3.) The defence also produced one witness namely Shyamal Kr. Roy who was examined as D.W 1. The case appears to be hinged upon a statement / dying declaration of Bharati Mukhopadhyay which was recorded by one Dr. Subhas Ch. Hazra (P.W 7) and in the presence of one Swatilekha Adhikari (P.W 11), the nurse at 3 P.M. In the said dying declaration it was stated as follows --- " I, Varati Mukhopadhyay W/o Late Susanta Mukhopadhyay answering your question that yesterday on 30.03.10 in the morning Tarak Chakraborty and his wife poured kerosine oil on my body and lit fire. I cried in pain and tried to put out the fire to the near-by pond. The neighbours informed my brother Ranjit Chakraborty and he admitted me into the hospital. The said Tarak Chakraborty and his wife lived in my house forcefully for a long time. My body has been burnt completely and suffering from tremendous pain. Recorded by me Sd/- Prabir Dutta S.I. OF Police Bhadreswar P.S. 31/03/10" The dying declaration was recorded by one Prabir Dutta, Sub-Inspector of Police who was also the Investigating Officer of the case. The aforesaid statement / dying declaration was marked Exhibit 4/2 (as a whole) in the vernacular and it reads as follows:-- "Ami Bharati Mukhopadhyay swami late Susanta Mukhopadhyay apnar jigyasay bolchhi gotokal 30/3/10 tarikh sakalbelay Tarak Chakraborty ebong tar stri amar gaye Kerosene tel dhele agun lagiye dey. Ami jantranay chitkar korte thaki ebong samner pukure giye agun nebhanor chesta kori. Protibeshira amar bhai Ranjit Chakraborty ke khabar dile shey amake hospitale bhorti kore. Ei Tarak Chakraborty o tar stri bahudin dhorey amar baritey jor kore bosobas korchhilo. Amar sara shoriri agune purey gechhe ebong asajhya jantrana hochche. Recorded by me Prabir Dutta S.I. of Police Bhadreswar P.S. 31.3.10" Upon a perusal of the aforementioned statement / dying declaration it is evident that the same was recorded in the hand writing of the Investigating Officer himself and it was not in the question and answer form. The evidence of Dr. S.C. Hazra (P.W 7) is important to the extent that he says that he did not certify as to whether the patient was in a fit state of mind for making a dying declaration though, on the body of the statement, he has mentioned that the statement was recorded in his presence and that the patient was at present fully conscious and not under any sedation. However, the fact remains that he did not certify as to whether the patient was in a fit state of mind for making the dying declaration. It is really not understood as to how the Doctor said that the patient was conscious and not under any sedation when the bed head ticket of the District Hospital, Hooghly vide Exhibit 5 showed that she was put on oxygen inhalation and was given Decadron Injection, Deriphyllin Injection etc. A person who is put on oxygen inhalation is obviously put a mask on the face and with the aforesaid injections, together with calmpose tablets, which were also given, as would be evident from the said Exhibit, it is not understood as to how this Doctor said that she was conscious and/or not under any sedation. He ought to have stated and certified as to whether she was in a fit statement or not. This, the Doctor never did. Moreover, the examination of P.W 7 the Doctor, showed that he had examined the patient on 30/3/10 and had found burn injury greater than 80%. He had also stated that he had advised oxygen inhalation and the aforesaid injections. He has also stated that he did not record her blood pressure nor her pulse beats. This is a glaring defect in so far as the alleged dying declaration is concerned. The Doctor further stated that he did not attach any certificate saying that the statement was made voluntarily or not. In a judgment of the Hon'ble Supreme Court passed in the case of Suchand Pal vs Phani Pal & Another, 2004 SCC(Cri) 220 it has inter-alia been held that if a declaration made by the deceased is not voluntary then such a statement cannot be called a dying declaration. It would be relevant to once again repeat that this declaration is in the hand of the Sub-Inspector of Police and it is not even in the form of question and answer but it appears to be a recording made by the Sub-Inspector of Police. The statement of P.W 7 further goes to show that the patient was heavily under sedation having been injected with Decadron and Deriphyllin injections and also having been put under oxygen inhalation together with administration of calmpose tablets. Therefore by merely recording that the patient was not under sedation is apparently contradictory to what has been stated by the said P.W in his cross-examination. Another important aspect is that the so-called dying declaration has not been exhibited. What has been exhibited is the signature on the endorsement made by the Doctor and the Nurse which has been marked at Exhibits 4 and 4/1 and the signature on the document has been marked as Exhibit 4/2 as a whole. The dying declaration therefore having not been exhibited becomes a doubtful piece of evidence. Thus, it would not at all be prudent to base conviction on the dying declaration made and recorded by an Investigating Officer. In the judgment passed in the case of Balak Ram vs State of U.P, 1974 SCC(Cri) 837 the Hon'ble Supreme Court in has stated in Paragraph 53 that-- "Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigating Officer.";