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Ashis Bag vs The State Of West Bengal on 7 August, 2019

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5.
07-08-2019
debajyoti/kole
CRA 410 of 2001

Ashis Bag
Vs.
The State of West Bengal

Mr. Tapas Kumar Ghosh,
Mrs. Somsubhra Ganguly
… For the appellant.

Mrs. Kakali Chatterjee
… For the State.

1.

This appeal which was initially filed by both the
convicted persons in a case in which charge was framed for
offences punishable under Sections 498A and 304B of the Indian
Panel Code or, in the alternative, under Section 302 of the Indian
Penal Code, now stands with only one appellant, the other having
died.

2. The prosecution is that the victim and first accused,
Ashis Bag, were married on 02-09-1991 and on 13-06-1996, she
succumbed to 100% burn injuries. The trial Court examined
various witnesses. However, only PW 1 to PW 8 were cross-
examined. Request of the accused for adjournment for cross-
examination of the other witnesses was turned down each time.
The Executive Magistrate who is stated to have recorded a dying
declaration from the hospital was not even examined on behalf of
the prosecution. That person was examined as defence witness.
Certain other persons whom the prosecution had given up were
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also examined as defence witnesses. Ultimately, the trial Court
found that the offence punishable under Section 302 Indian
Penal Code has been made out. Consequently, both the accused
persons, the husband and the father-in-law of the victim were
sentenced on that count. Hence, this appeal.

3. The father-in-law of the victim is no more and the appeal
has abated insofar as it relates to him.

4. On behalf of the first appellant, who was indisputably
the husband of the victim, learned counsel argued, among other
things, that the trial of the case in hand is nothing short of
travesty of justice inasmuch as the records of the case would
disclose that request for adjournment for cross-examination
made by the accused was time and again refused on and from
the recording of evidence of PW 9. The uncontroverted
testimonies of those witnesses have been used to enter conviction
as if they are legal evidence though that was not put for scrutiny
and subjected to cross-examination. That position
notwithstanding it is further argued that the so-called dying
declaration and evidence of the person who is said to have
recorded the so-called dying declaration were not even part of
prosecution materials before the Court below.

5. Learned counsel for the State argued that in the instant
case, opportunities extended to the accused to cross-examine
witnesses were not utilized and it cannot be treated as a case
where due process has not been carried in terms of the Code of
Criminal Procedure and practice regarding conduct of criminal
trials in the Sessions Courts.

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6. We have gone through the entire materials on record in
the case including the evidence of the witnesses.

7. PW 1 and PW 3 are the brothers, PW 5 is the mother, PW
6 is the brother-in-law and PW 8 is a niece of the victim. The
evidence of those witnesses are specifically being referred to by
us because cross-examination was permitted only as regards PW
1 to PW 8. Whatever be the reasons attributed, the records
disclose that the accused had cooperated with the trial Court and
even if there was no representation through a lawyer of his
choice, he ought to have been provided legal assistance at State
expense. We also see from the records that attempt was made by
the surviving appellant by requesting the Court below for such
legal aid. The examination of witnesses from PW 9 onwards
which includes the autopsy doctor and different other persons,
were carried without any cross-examination. The postmortem
certificate read along with the testimony of the autopsy doctor
shows that the victim had suffered 100% burn injuries and had
severe burn injuries even in her throat, neck and all vital parts
and the entire surface of the body except a small portion of both
the wrists and the waist. However, we have bestowed our
anxious consideration to see whether even if the conviction is not
sustainable under Section 302 IPC, it can be a case where we
could alter the count and modify the conviction and sentence to
be at least for offences punishable under Section 498A IPC. But
the fact of the matter remains that the offence punishable under
Section 302 IPC cannot be converted to one under Section 304B
or under Section 498A since they are not offences which fall
within the chain where the principle of tapering down could be
applied. The necessary ingredients to sustain the allegation for
an offence punishable under Section 498A and under Section
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304B IPC are fundamentally different from those allegations on
the basis of which a charge under Section 302 IPC would lie.
The order of acquittal of the accused persons insofar as Sections
498A and 304B are concerned, remains unchallenged by the
State. The High Court had also not issued any notice, at least in
revisional jurisdiction, to interfere with such finding and order of
acquittal.

8. For the aforesaid reasons, having found that the
conviction and sentence imposed on the accused under Section
302 does not stand on the basis of materials on record, we allow
this appeal and acquit the first appellant as regards whom alone
this appeal survives.

9. The appeal is, thus, allowed. The conviction and
sentence under appeal is set aside. The bail bonds shall stand
discharged.

10. Criminal Section is directed to supply urgent photostat
certified copies of this order to the parties, if applied for, upon
compliance of all necessary formalities.

( Thottathil B. Radhakrishnan, C.J. )

( Arijit Banerjee, J. )

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