Jeher Ali Mondal vs The State of West Bengal & Ors.

Calling in question the legality and validity of the judgment and order of conviction dated 20.06.2016 and 21.06.2016 passed by the learned Additional Sessions Judge, 5th Court Barasat in connection with S.T. No. 2(4) of 2011, the appellant has preferred this appeal. By the impugned judgment, the learned trial court has convicted the present accused appellant under Section 498A of IPC and under Section 306 of the IPC.

In course of hearing, the learned Counsel appearing on behalf of the appellant has submitted that there is no cogent evidence for which the present accused appellant could be convicted. She has also referred to some of the discrepancies in the evidence of the prosecution witnesses. According to the appellant, if those were taken into consideration in its proper perspectives the conviction would not lie.

Mr. Imran Ali appeared on behalf of the state practically could not assist the court by making any submission rather he did not mention the salient parts of the judgment.

On perusal of the impugned judgment passed by the learned trial court it appears that the learned trial court did not rely on the alleged dying declaration only on the ground that it was recorded by the police officer and that there is no endorsement that the victim was conscious and there was no such certificate from the concerned doctor that she was in a fit condition to make declaration.

At the time of admission of appellant, this court vide order dated 04.10.2016, issued rule calling upon the appellant to show cause as to why the order of acquittal under Section 302 of the IPC be not set aside.

At the time of argument learned Counsel appearing on behalf of the state did not make any submission on this point.

However, there are significant changes of judicial verdicts in connection with ''dying declaration''. Initially the decision reported in Paparambaka Rosamma -Vs.- State of Andhra Pradesh reported in 1999 SCC (Cri.) 1361 and another decision of Koli Chunilal Savji -Vs.- State of Gujarat reported in (2000) SCC (Cri.) 432, were frequently considered and adopted by the criminal courts. Since there were some sorts of contradictory finding, a five man bench was constituted by the Hon''ble Apex Court and the said bench has decided the ratio in Laxman -Vs.- State of Maharashtra reported in (2002) 6 SCC 710.

So, now the present position is law such that the certificate by the doctor regarding the mental stress of the victim is not required, if it is proved otherwise. Since it is recorded by the police officer that cannot be the only reason for discarding the dying declaration. Accordingly, I am of the view that the judgment passed by the learned trial court should be set aside. The instant case be remanded with the direction to the learned trial court to consider the applicability of Section 302 of the IPC also in this connection and to consider the dying declaration afresh. The learned trial court shall hear the matter afresh after giving opportunity to both sides, without being influenced by the observation made above, positively within a month from the date of receipt of a copy of this order. C.R.A. 480 of 2016 stands disposed of in the manner as indicated above.

Let a copy of this order and LCR be sent to the learned Court below at once for information and taking necessary action.

Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.