Crl.A. 22/2006 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.K. SHARMA CRIMINAL APPEAL NO. 22 OF 2006 1. Bidyut Paul, Son of Sri Bipad Bhajan Paul 2. Smti Uma Paul, Wife of Sri Bidyut Paul. Both are residents of Srikona, Police Station -Silchar, District-Cachar, Assam. & & & &.APPELLANTS (In Jail) -VERSUS- The State of Assam &..RESPONDENTS P R E S E N T THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B.K. SHARMA For the appellant : Mr. J.M. Choudhury, Mr. A.K. Goswami, Senior Advocates. For the respondent : Mr. Z. Kamar, Public Prosecutor, Assam . Date of hearing : 20.4.2009 Date of Judgment and : 24.4.2009 Order JUDGMENT AND ORDER (CAV) (Ranjan Gogoi, J). This appeal is directed against the judgment and order dated 30. 1.2006 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No .71 of 2003 convicting the accused appellants under Section 302/34 I.P.C. Both t he accused appellants have been sentenced to undergo rigorous imprisonment for l ife and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for a further period of one year each. 2. The case of the prosecution in short is that on 10.8.2000 P.W. 1 , Smti Ahalya Mazumdar, lodged a FIR with the Officer-in-Charge of Silchar Polic e Station alleging that the accused appellants were responsible for the death of her daughter one Arpita Mazumdar, which occurred on the previous day. In the FI R filed, the first informant stated that her daughter who was working in a Couri er Agency was being frequently visited by the accused Bidyut Kumar Paul. Such vi sits were not encouraged by the family members of the deceased. Specifically, it was mentioned in the FIR filed that on 9.8.2000 the accused Bidyut Kumar Paul h ad telephoned the deceased. Thereafter, the deceased informed the first informan t that she would visit the house of accused appellant Bidyut Kumar Paul and, the reafter, proceeded to her office as usual. According to the first informant, at about 11 A.M. her daughter returned home and started vomiting continuously. In t he FIR it was also mentioned that on being asked, the deceased had informed the first informant that in the house of the accused Bidyut Kumar Paul she was force d to drink tea mixed with poison. Thereafter, according to the first informant, she had called two of her neighbours i.e. Ranjit Roy (P.W.2) and Mani Bhattachar jee and together they went to a local pharmacy. Thereafter, her daughter was tak en to the Silchar Medical College. In the Silchar Medical College, on being aske d by the doctors, the deceased once again reported that she was made to drink po ison by the accused appellant Bidyut Kumar Paul and his wife i.e. the accused ap pellant No.2. Thereafter, according to the first informant, the statement of the deceased was recorded by the doctors in the Silchar Medical College whereafter the deceased passed away at about 4.30 P.M. while under treatment in the Medical College at Silchar. 3. On the basis of the aforesaid FIR, Silchar P.S. Case No.1009/200 0 under Section 342/302/34 I.P.C. was registered. Inquest was held on the dead b ody which was also sent for postmortem examination. The police in the course of investigation, visited the place of occurrence, prepared a sketch map and also r ecorded the statements of a large number of persons. At the conclusion of invest igation, charge-sheet under Section 342/302/34 I.P.C. was filed against both the accused-appellants. The offence under Section 302 I.P.C. being triable exclusiv ely by the Court of Sessions, the case was committed to the learned Sessions Jud ge, Silchar for trial. In the course of trial, charge under Section 302/34 IPC w as framed against both the accused appellants, to which they pleaded not guilty and claimed to be tried. In the course of trial, 10(ten) witnesses were examined by the prosecution. Several documents including the postmortem report and the r eport of the Forensic Science Laboratory were exhibited. Defence did not adduce any evidence. However, the statements of both the accused were recorded under Se ction 313 Cr.P.C. At the conclusion of the trial, the learned Sessions Judge fou nd both the accused-appellants guilty of the offence under Section 302/34 I.P.C. and they were accordingly sentenced. Aggrieved, this appeal has been filed. 4. The evidence of the prosecution witnesses examined in the case m ay now be briefly noticed. P.W. 1, Smti Ahalya Mazumder, is the mother of the deceased. Thi s witness has deposed that the accused Bidyut who used to visit their house had an intimacy with her deceased daughter. On the day of occurrence, at about 7/8 A .M., the accused Bidyut and her deceased daughter had a telephonic conversation whereafter the deceased went to the house of the accused Bidyut. P.W. 1 had depo sed that at about 11 A.M. her daughter came back home and started vomiting persi stently. According to this witness, on being asked, the deceased informed her th at the accused-appellants had administered poison to her by force and had also a ssaulted her. According to P.W.1, she called two of her neighbours and took the deceased to Mediland Nursing Home. Thereafter, on medical advice, the deceased w as moved to the Silchar Medical College Hospital. P.W. 1 had further deposed tha t in the Silchar Medical College Hospital, the deceased narrated the incident of being administered poison by the accused appellants to the doctors, who recorde d the statement of the deceased (Ext.1). This witness had identified her signatu re on the said statement as Ext.1(1). In cross-examination, P.W. 1 had stated that in the Mediland Nur sing Home, where the deceased was first taken, the deceased had narrated to the attending doctor the incident of administration of poison to her by the accused- appellants. She had further deposed that at the time of recording of the stateme nt of the deceased by the doctors in the Silchar Medical College Hospital, her t wo neighbours- Nani Bhattacharjee and Ranjit Roy were present. In the cross-exam ination, this witness had denied the suggestion that on the day of occurrence th e deceased had a quarrel with other family members and, thereafter, she took agr icultural pesticides that was kept in the house. P.W. 2, Shri Ranjit Kr. Roy, is a neighbour who was called to th e house of the deceased on the day of occurrence. According to this witness, he was so called by another neighbour Moni Bhattacharjee. P.W. 2 had deposed that r eaching the house of the deceased he found the deceased in a precarious conditio n. This witness, in his deposition, had supported P.W. 1 in respect of taking of the deceased to the Mediland Nursing Home and, thereafter, to the Silchar Medic al College and the developments that had taken in the said places, as deposed by P.W.1. In cross-examination, this witness had, however, stated that he had remained in the house of the deceased after being called there for about 15 minutes and during this period the deceased had not informed anybody about the a dministration of poison to her by the accused-appellants. However, this witness had further stated that during this period the deceased was continuously vomitin g and was also unconscious. Furthermore, in cross-examination, P.W.2 had stated that the deceased was virtually incapable of saying anything when they had reach ed the Silchar Medical College and Hospital. P.W. 3, Shri Ashim Kumar Mazumdar, is the brother of the decease d. P.W. 3 had deposed that his family members had objected to the visit of accus ed Bidyut Kumar Paul to their house in Silchar to meet the deceased. However, ev en thereafter, the accused Bidyut used to meet the deceased in her office and al so used to talk to her on the telephone. P.W. 3 had further deposed that on the day of occurrence, in the morning, Bidyut had rang up their house twice and on b oth the occasions he was not allowed to talk to the deceased. Thereafter, he lef t for his work place. According to P.W.3, at about 10 A.M., the accused Bidyut c ame to his office and informed him that his sister had come to their house and t hat there was a quarrel between her sister and the accused Bidyut in which the w ife of the accused Bidyut was also involved. P.W. 3 had deposed that as he was i nformed by the accused Bidyut that the deceased was kept confined in his house, he reached the house of the accused in a scooter. As soon as he reached the hous e of the deceased, he was abused in filthy language by the accused-appellant No. 2 for not being able to keep his sister under control and also for the relations hip that the deceased had developed with her husband i.e. accused Bidyut. P.W. 3 had further deposed that he was informed by the wife of the accused Bidyut that his sister had left for her house. He, therefore, came back to his office. Late r he could learn that she is lying in a precarious condition in Silchar Medical College Hospital. This witness had further deposed that in the course of investi gation when police had visited their house, he handed over some letters written by the accused Bidyut to her sister, which were seized by the police (Mat. Exts. 1 to 7). P.W.4, Shri Uttam Kumar Deb, is the employee of the courier agen cy where the deceased was working. According to this witness, on the day of occu rrence, at about 11 A.M., the deceased came to the office and after asking the e mployees to continue with their work, she had left for home. P.W. 5, Shri Sudhabindu Das, is the employee of a Pharmacy who h ad visited the house of the deceased and had administered an injection to the de ceased. This witness had deposed that the deceased had informed him that she was mercilessly beaten by the accused Bidyut and she was administered something by the accused Bidyut and his wife. In cross-examination, this witness had stated that when he visit ed the house of the deceased he found the mother of the deceased sitting along w ith another woman by the side of the deceased and further that the deceased was not vomiting at that time. However, immediately after the injection was administ ered to the deceased by P.W. 5, she had started vomiting. P.W. 6 Dr. Sujit Kumar Biswas, at the relevant time was working as an Assistant Professor of Medicine at the Silchar Medical College Hospital. A ccording to this witness, on 9.8.2000 at about 1.15 P.M., the deceased was broug ht to the Silchar Medical College Hospital. P.W. 6 had deposed that after examin ing the deceased, he was told by her that she was administered something by the accused-persons. This witness had further deposed that as the condition of the d eceased was precarious, she could not divulge anything further. According to P.W . 6, on his advice, one Dr. R. Barua, who was also attending the patient, record ed the statement made by her on which the victim somehow put her signature. This witness had proved the handwriting and signature of Dr. R. Barua in the said st atement (Ext.1) and his signature thereon as Ext.1(4). P.W. 6 had further stated that after postmortem was completed, the viscera was sent to the Forensic Scien ce Laboratory for chemical analysis. This witness had proved the report of the F orensic Science Laboratory as Exhibit-6 in the case. In cross-examination, P.W. 6 had stated that in Ext. 1, it has n ot been recorded that the patient was mentally capable of making the dying decla ration. P.W. 7 Dr. Kallul Bhattacharjee, at the relevant point of time, was working as the Registrar of Medicine at Silchar Medical College and Hospital . He has corroborated the evidence of P.W. 6. P.W. 8, Shri Saradindu Bhusan Dey, S.I. of Police, was at the re levant point of time attached to the Ghungoor Police Outpost. According to this witness, he had held the inquest on the dead body of the deceased and had sent t he dead body for postmortem examination. This witness had further deposed that h e received information from Dr. Kallul Bhattacharjee (P.W.7) that one Arpita Mau mdar had died in the Medical College and Hospital by consuming unknown poison. A ccording to this witness, the said information was entered in the General Diary of the police station whereafter he reached the Silchar Medical College Hospital at about 6.25 P.M. on 9.8.2000. P.W.8 had further deposed that though he was in the hospital till about 7 P.M. he was not informed of any dying declaration mad e by the deceased. P.W. 9 Shri Chinmoy Dey, S.I. of Police was at the relevant poin t of time attached to the Silchar Police Station. He is the Investigating Office r of the case. According to this witness, in the course of investigation, he had seized a number of love letters written by the accused Bidyut to the deceased a s well as the dying declaration (Ext.1) allegedly made by the deceased. P.W. 9 h ad deposed that he had searched for the accused Bidyut at his residence as well as in his office but he was not to be found. This witness had further deposed th at he sent several W.T. Messages to several places for apprehending the accused persons which did not produce any result. This witness had further deposed that he sent the viscera to the Foresnsic Science Laboratory for chemical analysis an d that the report of such analysis was received by him (Ext.6). In cross-examination, P.W. 9 had stated that in the statement of the tenants of the accused persons that were recorded by him, no mention has be en made of the visit of the deceased or for that matter any noise in the house o f the accused persons on the day of occurrence. P.W. 10 Dr. Gunajit Das had carried out the postmortem examinati on of the deceased. The findings of the postmortem examination, as deposed by P. W. 7, may be usefully extracted hereinbelow :- Injuries : 1) Bruises - 4 in number, blueish in colour over ventral aspect of right arm, pl aced vertically 1 cm apart from each other of size 2 x 1 cm, 1 x 1 cm, 2 x 2 cm and 1.5 x 1 cm above downwards. 2) Blueish bruises - 2 in number - over radial aspect of right wrist of size 3 x 1.5 cm and 3 x 1 cm. 3) Blueish bruise over middle part of the medial side of left arm 4 x 2 cm. 4) Defused bruise, blueish in colour, and the left ear covering the whole mastoi d area, upper left part of cheek and lateral half of left zygoma. 5) Confusion of whole of temporal scalp seen on reflection. 6) Subdural haemorrhage in the parietal area of left side. Brain found congested spinal cord not examined as there was no injury to the vertebrae. Both lungs found congested and edimatus. Frothy blood tinged oedema exud es from cut margins of both the lungs. Heart shows patechial haemorrhages. Stomach food healthy and it contained approximately 150 ml of blackish c oloured thick fluid mixed with food materials rendering a sweety smell. Liver and spleen found congested. Kidneys found healthy. Organs of generation found healthy. Uterus was found empty and the size of the uterus is that of a rubber ball and intramural fibromyomatuous growth is seen over the fundus of uterus left side. size of the growth was spherical and d iameter was 2 cm. Stomach with its contents, one kidney and approximately 500 grams of lev er tissue and 7 ml in EDTA preserved for chemical analysis. The I.O. was request ed to collect the same from the department and to send them to Forensic Science Laboratory at the earliest. Rest of the organs and parts of the body found healt hy. Opinion : Cause of death was kept pending till receipt of the report of chemical a nalysis from FSL, Guwahati. Approximate time since death was 16 to 24 hours. Ext .5 is the post mortem report and Ext. 5(1) is my signature. . This witness had further deposed that after receipt of the repor t of the Forensic Science Laboratory dated 10.10.2000 (Ext.6), in his opinion, t he cause of death was due to poisoning by organo-phosphorous pesticide. This wit ness had further deposed that there were injuries on the body of the deceased wh ich was caused by impact of blunt force. He had identified the final report subm itted by him as to the cause of death of the deceased which was exhibited as Ext . 9 in the case. 5. Though the prosecution case rest on the dying declaration of the deceased which has been exhibited as Ext. 1 the evidence tendered by the prosec ution witnesses in the case would show that there are two other incriminating ci rcumstances against the accused, namely - indication of an illicit relationship between the deceased and the accused Bidyut which was objected to by the wife of the accused Bidyut and secondly the fact that the accused appellants were not a vailable to the Investigating Officer for a considerable time after the occurren ce. 6. Shri JM Choudhury, learned senior counsel for the accused-appell ants has submitted that in the present case there are two versions of the deceas ed available in the dying declarations that were alleged to have been made by th e deceased at different points of time. In the dying declaration made by the dec eased in the Mediland Nursing Home, the deceased did not implicate the wife of t he accused Bidyut and had also not stated anything about being assaulted. The do ctor in the Nursing Home where the said statement was made had not been examined . However, in the dying declaration that was recorded in the Silchar Medical Col lege Hospital, a different version has come wherein the deceased is alleged to h ave stated that she was assaulted by the accused Bidyut and his wife and both of them had administered poison to her. Shri Choudhury had further argued that the materials on record, in-fact, the dying declaration (Ext.1) itself had very cle arly shown that the deceased was not in a mental condition to make any such decl aration. In such circumstances, according to Shri Choudhury, the Court should he sitate to act on the basis of the dying declaration (Ext.1) made by the deceased . Shri Choudhury had further submitted that in the present case the viscera was sent for chemical analysis to the Forensic Science Laboratory at Guwahati. The r eport of such analysis (Ext.6) has been proved by the Investigating Officer of t he case i.e. P.W.9. The Senior Scientific Officer, Toxicology Division, Forensic Science Laboratory, Assam, who had conducted the analysis and submitted the rep ort in the case was not examined to prove the report. Pointing out the provision s of Section 293 of the Code of Criminal Procedure, Shri Choudhury has contended that the Senior Scientific Officer of Forensic Science Laboratory is not includ ed in the category of officers whose report can be used as evidence in a trial w ithout being formally proved. Shri Choudhury, therefore, has contended that no r eliance can be placed on Ext.6. In such event, according to the learned counsel the cause of death must be held by the Court to have remained unexplained. Shri Choudhury, therefore, has argued that in the present case the charge against the accused appellants cannot be held to have been proved beyond reasonable doubt. 7. Controverting the submissions advanced on behalf of the accused- appellants, Shri Z. Kamar, learned Public Prosecutor has contended that the vari ations between the oral dying declaration made by the deceased and one recorded in the Silchar Medical College Hospital are trivial in nature and does not affec t the core of the substance contained therein, which is that the deceased was fo rcefully administered poison by the accused Bidyut and his wife. The learned Pub lic Prosecutor had further pointed that the dying declaration (Ext.1) was record ed by one of the doctors who was attending to the deceased i.e. Dr. R. Barua and the same had been countersigned by P.Ws. 6 and 7 who were also attending to the deceased at that point of time. The mother of the deceased P.W. 1 and one of he r neighbour Mani Bhattacharjee had also affixed their signatures on the aforesai d dying declaration (Ext.1). Therefore, according to the learned Public Prosecut or, the dying declaration must be accorded full evidentiary value in which event the conviction of both the accused appellants on the basis of the said dying de claration alone is sustainable. Pointing to the provisions of Section 293 of the Code of Criminal Procedure and the arguments advanced by Shri Choudhury in that regard, the learned Public Prosecutor has referred to the decision of the Delhi High Court in Amarjit Singh and another -Vs.- State (Delhi Admn.), reported in 1995 CRI.L.J.1623 wherein a similar question was answered in a negative manner b y the Delhi High Court. In this regard, the learned Public Prosecutor had furthe r pointed out that the report of the chemical analysis (Ext.6) was introduced in the case without any objection from the defence and, furthermore, in the presen t case the cause of death has been certified by P.W. 10 (Dr. Gunajit Das), who h ad performed the postmortem examination, by submitting a final report (Ext.9) wh ich is to the effect that the cause of death was due to consumption of organo-ph osphorous pesticide. 8. We have considered the rival submissions of the parties with the greatest of care and caution. The principles of law governing a statement made by a person before his death with regard to the cause of his death would hardly need to be stated in any details. A dying declaration may be recorded in writing ; it may also be proved by oral evidence. Such a declaration, if truthful, may, by itself, be a sufficient basis for the conviction of the accused. However, if there is any inherent infirmity in such a declaration or the surrounding circums tances are not clear or convincing, the Court, may, look for corroboration. In t he present case, the initial declaration that the accused-appellant had forceful ly administered poison to the deceased was made by the deceased in the Mediland Nursing Home in front of the doctor attending to her as well as in the presence of her mother and a neighbour. According to the prosecution, this was also the e arliest version which was narrated by the deceased to her mother in the presence of the neighbours Nani Bhattacharjee and Ranjit Roy (P.W. 2) immediately on ret urning home. Thereafter, the deceased made another statement more or less to the same effect in the Silchar Medical College Hospital which was put down in writi ng by one of the attending doctors. The other doctors attending to the deceased is P.W.6 and 7 had also put their signatures thereon. As in the present case a written dying declaration recorded by an independent person is available, the Co urt need not go into the evidentiary value of the earlier oral dying declaration made by the deceased. 9. The dying declaration recorded in writing (Ext.1) being so recor ded by a doctor in the presence of two other doctors would naturally inspire con fidence of the Court. However, the learned counsel for the appellant has tried t o cast a doubt in