Sanjoy Sarkar vs State Of Tripura

[1] Heard Ms. R. Purkayastha, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the State.

[2] This appeal arises from judgment of conviction dated 29.03.2016 delivered in case No.S.T.22(T-I) of 2014 by the Additional Sessions Judge, West Tripura, Khowai, as he then was. Pursuant to the said judgment, by the order dated 29.03.2016 the appellant has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.1000/- with default stipulation.

[3] The appellant was charged under Sections 498A, 304B and under Section 302 of the IPC separately and on a regular trial, he was convicted and sentenced as stated earlier. The genesis of the prosecution case can be located in the written complaint (Exbt.8) filed by one Nripendra Nama, PW 20 on 02.09.2014 to the Officer-in-Charge, Khowai Police Station, Khowai. It has been revealed by the informant that his elder daughter namely Chinu Nama was given marriage to the appellant namely, Sanjoy Sarkar. After 4 months of solemnization of marriage his daughter faced marital violence by the appellant and other intimates namely, Taruni Sarkar, father and Sita Rani Sakar, mother. According to the said complaint, his elder sister whenever came to their house, narrated the saga of her harassment on demand of money. It has been further revealed that in the subsistence of the said marriage, the appellant married one girl namely, Pinki Das illegally and the appellant started to live with her in the same hut.

[4] Having gathered the news of the said marriage, the informant and her relatives appeared in the house of the appellant and raised serious objection. However, they did not lay complaint to any authority.

[5] On 01.09.2014 at about 6.00 pm in the evening the informant came to know that his daughter "has set fire" upon her body, in the house of her husband and she was brought to GBP Hospital from Khowai Hospital. They rushed to the hospital without sparing time. It has been asserted in the complaint that they spoke to Chinu, the daughter of the informant and she had stated that on 01.09.2014 in the afternoon about 4.30 to 5.30 pm when she was working in infront of a tube well, her husband and his second wife together with assistance from her parents-in-law poured kerosene on her body and set fire. In order to save her, she jumped into water. At the time of filing the complaint, his daughter was being treated for severe burn injuries that she had received from the incidence. Based on the said complaint Khowai P.S. Case No.90/2014 under Section 498A/326/307/ 494/120B of the IPC was registered. As it surfaced from the testimony of PW9 on 05.09.2014, the victim succumbed in the GBP Hospital and during that time, Section 302 of the IPC had been added for purpose of investigation.

[6] On completion of the investigation, the police report was filed sending the accused persons namely, Sanjay Sarkar, Pinki Das, Taruni Sarkar and Sita Rani Sarkar to face the trial. Accordingly, the said charges narrated above were framed. The accused persons denied the charge, pleaded innocence and claimed to be tried.

[7] In order to substantiate the charge, the prosecution adduced as many as 36 witnesses (PW1 to PW36) and admitted 20 documents including one dying declaration recorded by PW30 (Takshiray Debbarma, Deputy Collector & Magistrate, Office of the DCM, Sadar, Agartala). After recording the evidence led by the prosecution, the accused persons were examined separately under Section 313 of the Cr.P.C. when the accused persons reiterated the plea of innocence claiming that the evidence against them are all fabricated. For defence, no evidence was laid. The trial judge after appreciating the evidence in detail has observed as under:

"I have meticulously gone through the post mortem report as well as the inquest report prepared over the dead body of deceased Chinu Nama. Nowhere I find that her any fingers were burnt by the injuries. So in such a situation, I find that the dying declaration as recorded by DCM is very much relevant in this case and it is nicely corroborated by the evidence of some of the prosecution witnesses. The report of post mortem examination report clearly indicates that death of Chinu was homicidal in nature and the cause of death was caused septicaemia due to burn injury."

[8] Having observed thus, the appellant has been convicted for committing murder of Chinu Nama punishable under Section 302 of the IPC and the other accused persons were acquitted from the charge holding that no evidence is found on records to convict them.

[9] Being aggrieved by the said judgment of conviction, this appeal has been filed by the appellant. Ms. R. Purkaystha, learned counsel appearing for the appellant has succinctly submitted that fundamentally on reliance of the dying declaration (Exbt.10) the finding of conviction has been returned. However, according to the trial judge there are some proved circumstances which can be co-related with the dying declaration for purpose of linkage and corroboration.

[10] According to Ms. Purkayastha, learned counsel the witnesses from the neighborhood did not state anything that they did locate there the appellant was engaged in an act of cruelty before the occurrence. As such, the appellant‟s involvement in setting on fire is grossly improbable, when the other accused persons have been let off the charge for being wanted in evidence.

[11] Ms. Purkayastha, learned counsel has contended that the dying declaration cannot be relied by this court as at the time of filing the complaint (PW3) it was not stated that the appellant alone set fire on the person by pouring the kerosene. It may be noted further that involvement of the other accused Pinki Das has been sought to be established. But there was no material at all.

[12] Ms. Purkayastha, learned counsel has submitted that the dying declaration as recorded by PW30 is not reliable inasmuch as physical and mental status of the maker of the dying declaration has not been assessed by the competent person. To buttress this contention, Ms. Purkayastha, learned counsel has relied on the decision of Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 where the apex court has observed as follows:

"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremely, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. 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 eyewitnesses 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 of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. 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 circumstances 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 of 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." [Emphasis added]

To emphasize that the dying witness has to be in a fit state of mind, the said report has been relied. Reliance has also been placed in the same line on the decision of the apex court in Dandu Lakshmi Reddy Vs. State of A.P. reported in (1999) 7SCC 69 where the apex court has observed inter alia that if the dying declaration is tested on the available evidence and it does not stand totally in conformity, it will be unsafe to convict any person on the state of "fragile and inadequate" or on the dying declaration.

[13] Ms. Purkayastha, learned counsel has placed her reliance on Om Prakash Vs. State of Uttar Pradesh reported in (2008) 17 SCC 249. In Om Prakash (supra), the apex court has observed that if there is delay in lodging the complaint it would generate speculation and to give quietus to such speculation, materials or explanation be placed to show that the delay was bona fide, not for any purpose of affecting the investigation. Thereafter, it has been observed that if the complaint is lodged, investigation shall start without any delay lest there will be space for drawing adverse inference. In this case, there is some delay in lodging the FIR, as according to Ms. Purkayastha, learned counsel, PW 20 has testified that in lodging the complaint there were 4 days delay. The records as made available to the trial judge shows that the FIR was filed on the following day i.e. on 02.09.2014 at about 3.45 pm where is the incident occurred on 01.09.2014 at about 04.30-5.30 pm.

[14] The decision of this court in Babul Ghosh Vs. State of Tripura reported in (2015) 1 TLR 212 has been referred, but the said decision is basically structured on Laxman Vs. State of Maharashtra:(2002) 6 SCC 710, no further elaboration is therefore required.

[15] Ms. Purkayastha, learned counsel has referred to the testimony of PW21 to show that the said witness had stated that she [the victim] was living a peaceful life. Reference has been made to the testimony of PW23 as well. But that witness is clearly a hearsay witness. Even PW24 is a hearsay witness who has stated to have heard that the appellant and his second wife had a role to set the victim on fire.

[16] Ms. Purkaystha, learned counsel has having referred to the relative witnesses, in particular, stated that even by the circumstantial evidence the commission of crime as alleged by the appellant could not be proved. Reference has been made to PW31 to show that the said witness was present at the time of recording the dying declaration, but later on it revealed that even though she claimed to have signed over the dying declaration, but she did not sign the dying declaration at all. Therefore, Ms. Purkayastha, learned counsel has submitted that recording of the dying declaration itself is shrouded by doubts. Moreover, regarding the fitness, there is no certificate by the doctor.

[17] Mr. Debnath, learned Addl. P.P. appearing for the State has submitted that the prosecution has proved that the victim was set on fire in the house of the appellant, and at the first instance, the victim has stated to PW20 and PW21 as mentioned in the complaint. Such revelation cannot be hit by Section 60 of the Indian Evidence Act.

[18] To strengthen his submission further Mr. Debnath, learned Addl. P.P. has referred a decision of the apex court Sukanti Moharana Vs. State of Orissa reported in (2009) 9 SCC 163. In that report, it has been held that dying declaration should be relied upon as the same was truthfully recorded and the vivid account of manner in which incident had taken place has revealed by the victim.

[19] Mr. Debnath, learned counsel has submitted that PW30 does not have any grudge or any interest in the outcome of the investigation and he has recorded the dying declaration truthfully as stated by the victim therefore there cannot be any impediment in placing reliance on the dying declaration to return the finding of conviction against the appellant.

[20] Mr. Debnath, learned counsel has further contended that the initial episodes as proved by the prosecution show that those episodes are pointers to the truthfulness of the dying declaration. Therefore, no interference is warranted in the judgment of conviction.

[21] For purpose of appreciating the rival contentions as projected, this court is obligated to take a short survey of the evidence as recorded during the trial.

[22] PW1 (Sabitri Gope), PW2 (Hena Gope), PW3 (Mamata Nandi (Deb), PW4 (Usha Namasudra (sarkar), PW5 (Rekha Namasudra(Sarkar), PW6 (Rupali Sarkar(Dey), PW7 (Madan Mohan Gope), PW8 (Manojit Sarkar), PW9 (Ranjit Kr. Modak) and PW10 (Dulal Das) are the witnesses from the village and the family of the appellant. Some of them are also relative of the appellant. But on analyzing the evidence, it has surfaced that their evidence is only material for the victim‟s sustaining o the burn injury and for that, Pinki was involved in the commission of crime.

[23] Another set of witnesses, PWs 20 to 27 are the relatives or the neighbours of the complainant. Those witnesses are all hearsay, they have not seen any transaction, material for purpose of determining the charge.

[24] PW28, Smt. Jharna Biswas is again the sister of the victim and she has stated that the appellant set fire on the victim, but in the cross-examination she has stated that she could not recollect whether she told to the police officer that another wife of Sanjay poured kerosene on the victim and thereafter, Sanjay (the appellant) set fire on the victim.

[25] PW29, Jatindra Mallik, the cousin brother of the victim is hearsay witness, but he is witness to the inquest procedure.

[26] PW30, Takshiray Debbarma, the Deputy Collector and Magistrate, Sadar Agartala had recorded the dying the declaration of the victim. He has categorically admitted that at the time of recording the dying declaration no doctor was present. He had not also contacted the Superintendent of the Hospital. He has not made any statement in respect of fitness of the victim to make the declaration. Even in the certificate attested in the dying declaration (Exbt.10), no observation has been made in respect of the mental and physical state of the victim.

[27] PW31, Smt. Gita Chakraborty, has claimed to have been present during recording of the dying declaration. PW31 has claimed to have signed the said declaration, but her signature was not found on examination.

[28] PW32, Dr. Jayanta Shankar Chakraborty carried out the post-mortem examination over the dead body of the victim and he found the burn injuries with formation of puss. According to him, the death occurred for septicemia that has directly resulted from the burn injuries.

[29] PW33, Palash Dutta, the Sub-Inspector of Police, posted at the relevant time in the Khowai Police Station. He had registered the case and endorsed the same to Sulachana Sukla Das, Sub-Inspector of Police for investigation.

[30] PW34, Sulachana Sukla Das is the Investigating Officer. She has stated how she had carried out the investigation preparing the site map recording the statements of witnesses and collecting the post-mortem examination report. Finally, she had handed over the charge of investigation to the Sub-Divisional Police Officer, Khowai on 14.10.2014.

[31] Later on, the investigation was wrapped up by PW35 (Jyotisman Das Choudhury) and he had filed the charge-sheet against the appellant, as stated earlier, under Sections 498A/302/304B/506/120B of the IPC and against Sri Talimoni Sarkar and Smt. Sita Rani Sarkar under Sections 498(A)/302/304(B)/506/120(B) of the IPC. Similarly, against the other accused (Pinki Das), the charge-sheet was filed under Sections 498(A)/302/304(B)/506/120(B) of the IPC. PW36 has disclosed nothing more.

[32] Having appreciated the entire evidence what has surfaced, no reliable witness is found to substantiate that the appellant set the victim on fire. Even some of the witnesses had appeared in the place of occurrence immediately after the incident but did not find the appellant in the place of occurrence.

[33] That apart, the dying declaration (Exbt.B) as stated above, where the victim had simply stated that the appellant had contracted the second marriage with Pinki Das [the co-accused] and on every day both the appellant and Pinki Das used to torture the victim physically. On 01.09.2014, when the victim was washing the utensil her husband and Pinki Das, the co-accused, poured kerosene on her body and set fire. Her entire body got burnt. On the basis of the statement made by the victim, the complaint was filed by PW20 as she had stated that when she was washing utensils infront of a tube well, her husband and his second „illegal‟ wife "together with the assistance of her parents-in-law poured kerosene on her body." The later part of the said statement is however unavailable.

[34] The part that has been highlighted is that there is no medical certificate or opinion on the mental fitness of the victim. Even at the time of examination, no medical officer was present for that purpose. In presence of a staff nurse (PW31) the dying declaration was recorded by PW30. Even the recording officer (PW30) did not make any statement that he found the victim to be in a position or in the full fitness to make the dying declaration (Exbt.8). PW31 has not stated anything about the fitness of the victim to make the declaration. It will be unsafe to sustain the conviction on the basis of the evidence as recorded, particularly on basis of the dying declaration which has been substantially relied by the trial judge.

[35] Thus, the benefit should go to the appellant accordingly, the appellant is acquitted from the charge framed under Section 302 of the IPC on benefit of doubt, in as much as acquittal from the other charge has not been challenge by the State.

[36] In the result, the judgment of conviction and order of sentence are set aside. The appellant be set at liberty forthwith, if not wanted in any other case.

Hence, the appeal stands allowed.

Send the LCRs forthwith.