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Bapi Majhi @ Anukul Majhi vs The State Of West Bengal on 27 March, 2019

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Joymalya Bagchi

And

The Hon’ble Justice Manojit Mandal

CRA 469 of 2016

Bapi Majhi @ Anukul Majhi

Vs.

The State of West Bengal

For the appellants : Mr. Himanshu De, Sr. Advocate

Mr. Navnil De

Mr. Rajeshwar Chakraborty

Ms. Dipannita Mukherjee

For the State : Mr. Sudip Ghosh

Mr. Bitasok Banerjee

Heard on : 12.03.2019

Judgment on : 27.03.2019

Manojit Mandal J.
The appeal is directed against the judgment and order of conviction

and sentence dated 28.04.2016 and 29.04.2015 passed by the learned

Additional District and Sessions Judge cum Judge, Special Court,

Chinsurah, Hooghly, in Sessions Trial No. 2215/12 (14 of 2003) arising

out of Sessions Case No. 214 of 2003 convicting the appellant under

Section 302 of the Indian Penal Code and sentencing him to suffer

imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten

Thousand) in default rigorous imprisonment for 3 months for the offence

punishable under Section 302 of the Indian Penal Code.

2. The gist of the prosecution case levelled against appellant is to the

effect that victim Arati Majhi was taken by her maternal aunt to her aunt’s

house on 24.10.2000. On the day of Kalipuja i.e. on 26.10.2000 at about

11:00-11:30 a.m. at Kalitala, the appellant had shown the victim to some

persons and said to them that he had love affair with her and he want to

marry her. People present at the P.O. were the villagers ‘Gar’ and Kalitola.

Thereafter victim, Arati Duley, got married with appellant. The further

case of the prosecution is that the said marriage was not accepted by the

parents of the appellant, namely, Bhatu Majhi, Arati Majhi and paternal

uncle Dinu Majhi. At last Rabin Ruidas gave shelter to Bapi Majhi and his

wife (deceased). On the following day, PW 1 Pratima Duley who is the

mother of deceased, came to the village ‘Gar’ and met her daughter. The

parents and paternal uncle of appellant came to her and demanded Rs.

50,000/-(Rupees Fifty Thousand). It was told by them that they would

accept the deceased if the said amount is paid. PW 1, mother of the
deceased, could not meet the said demand and for the same the deceased

was subjected to continuous torture. The PW 1, mother of the deceased

made repeated request and made payment of Rs. 12,000/-(Rupees Twelve

Thousand) by installment, so also gold ornaments weighing two bharis.

Further case of the prosecution is that unfortunately, on 16.012001 at

about 10/ 10:30 at night the hands and legs of the deceased were tied,

kerosene oil was poured on her and she was set on fire by the appellant on

the advice of his parents and paternal uncle. The deceased raised alarm,

which attracted the people of the locality. The maternal aunt and cousin

brother of the deceased, Swapan Duley (PW 5) came to the place of

occurrence and took the deceased to the hospital at Chinsurah by

ambulance. The deceased, as is revealed from the petition of complaint,

was fighting with death.

3. On the basis of the said petition of complaint, Haripal P.S. Case No.

03/2001 dated 18/1/2001 was registered under Section 498A /306 of the

Indian Penal Code (for short IPC).

4. Police investigated the case as usual and after completion of

investigation submitted charge-sheet against the appellant and others

under Sections 498A/302 of IPC.

5. Charge under Sections 498A and 302 of the IPC was framed against

the appellant and others.

6. Prosecution examined 18 witnesses and marked several documents

as exhibits. On the other hand, defence examined only one witness as DW
1 who is the appellant himself. In conclusion of trial, the learned Trial

Judge by judgment and order dated 28.04.2016 and 29.04.2016 convicted

and sentenced the appellant as aforesaid.

7. Mr. Himanshu De, Senior Advocate appearing for the appellant

argued that the impugned Judgment of conviction and order on sentence

are not sustainable and the appellant has been falsely implicated in this

case by the Investigating Officer to solve this case. It is contended that the

order of conviction and sentence is completely based on surmise and

conjecture and, thereby, does not warrant any positive cogent legal

reasoning. According to the appellant, the impugned judgment and order

of conviction and sentence is perverse, suffers from infirmities and is not

tenable in law. It is further contended that learned Trial Court while

passing impugned judgment and order of conviction and sentence against

the present appellant has failed to appreciate the whole evidence in its

entirety on the material point. It is further contended that the learned

Court below failed to consider that there was no eyewitness in this case

and the case is fully based on circumstantial evidence and, thus, in order

to convict the accused, the case has to be proved beyond all reasonable

doubts. It is further contended that deceased suffered burn injury and

was not conscious nor was she able to speak either to the Investigating

Officer (PW13) or to Doctor, Shivaji Daschowdhury. It is further contended

that the learned Trial Court has failed to appreciate the statement of the

appellant recorded under Section 313 of the Cr.P.C that “he was playing

cards at ‘Gopinagure more’, his wife was preparing bread in the house. He
was attracted by a hue and cry from his house. He went to his house

along with other ‘para’ people and saw his wife was burning. On enquiry,

he came to know that his wife caught fire when she was preparing bread

and he took her to the hospital immediately being assisted by Rabin

Ruidas, van puller, and other ‘para’ people. She told to doctor that she

caught fire somehow. No one set her on fire.” It is further urged that no

statement was given by the deceased Arati Duley as she was not in a

condition to make such a statement and the I.O. has concocted the false

statement against the appellant. It is further submitted that the public

witnesses, namely, Kalpana Ruidas (PW 6), Sukumar Das (PW 9), Rabin

Ruidas(PW 10) and Samir Ruidas (PW12) did not support the case of the

prosecution. So, the appellant has been wrongly convicted and he should

be acquitted from this case.

8. On the other, Mr. Sudip Ghosh, learned Additional Public

Prosecutor, appearing on behalf of the State submitted that in case, the

dying declaration is truthful, the same may alone form the basis of

conviction without any corroboration. It is submitted that, notwithstanding

the fact that PWs 6, 9, 10 and 12 did not support the prosecution case,

but since the dying declaration is truthful, no corroboration is required.

Learned Additional Public Prosecutor appearing on behalf of the State also

relies on the Exhibit 6 to show that the doctor had made the endorsement

to the effect that “statement recorded in my presence” and submitted that

on this basis alone the appellant has been rightly convicted.
9. We have heard learned Counsels for the parties and considered their

submissions.

10. PW 1 is the defacto complainant, who is the mother of the deceased,

Arati Duley. It is her evidence that her daughter died 3 months after her

marriage. She went to the Chinsurah Hospital and she met with her

daughter. She saw burn injury on all over the body of her daughter except

face and mouth. Her daughter told, her husband, Bapi Majhi, tied her

hands and legs and thereafter poured kerosene oil and, thereafter set her

on fire. Her daughter was transferred from Chinsurah Hospital to Calcutta

Hospital. Her daughter died two days thereafter. She went to Haripal

Police Station and submitted a written complaint (exhibit 1) at Haripal

Police Station. This witness was extensively cross-examined by the

defence. She stoutly denied the defence suggestion that burn of her

daughter is an accident only and the accused did not set her daughter on

fire after tying legs and hands. Therefore, on scrutiny of the evidence of

PW 1, I find that PW 1 had taken prompt action after the occurrence and

she had fully corroborated her earlier statement made in the written

complaint (exhibit 1). I find nothing to shake the credence of her evidence.

There is no reason to believe why she would depose falsely against the

appellant. I do not find any justified reasons why PW 1 would implicate

the appellant falsely. PW 3, Atanga Duley, is the sister of PW 1. She has

deposed that she went to Chinsurah Hospital and on her asking deceased

disclosed that for non-payment of the balance amount, she was tied by her

husband and, thereafter, her husband poured kerosene oil on her person
and ultimately set her on fire. She saw severe burn injuries on the person

of the deceased. The deceased was ultimately transferred to Medical

College at Calcutta and there she died on the next night. The evidence of

PW 4 including her cross-examination reveals that after getting

information she and her son PW 5 went to Haripal Hospital. At there,

deceased told them that she was set on fire by her husband after pouring

kerosene oil on her person after tying her for non-payment of the balance

of amount of dowry. Subsequently, deceased was transferred to Chinsurha

Hospital and therefrom deceased was transferred to Medical College

Hospital where she died on the next day of her admission there. PW 5,

Swapan Duley, has duly corroborated the statement of his mother (PW 4)

by saying that on getting information regarding the incident of deceased

that he and his mother went to Hospital and there they heard from the

deceased, she was set on fire by her husband after pouring kerosene oil on

her person after tying her. The appreciation of these evidence of PW 1, PW

3, PW 4 and PW 5 makes it clear that they met with the deceased when

she was admitted in the hospital and they came to know from the deceased

herself that she was subjected to torture by her husband on the fateful

night and her hands were tied, kerosene oil was poured on her and she

was set on fire.

11. Postmortem was held by Doctor Amitava Das (PW 18). On

examination he found the following injuries on the person of the deceased:

1.

Left side of cheek and chin.

2. Anterior and posterior aspect of neck

3. Left upper limb extending from upper part of left part arm to dorsal
part left forearm all around.

4. Anterior aspect of right forearm up to fingers all around.

5. Both breasts

6. Posterior surface of chest wall.

7. Anterior and posterior surface of abdominal wall

8. Perineum.

9. Both gluteal region.

10. Right and left lower limb extending up to lower third of right and
left leg all around. The ulcerated area were found congested and
covered with pass and slough. All the injures showed signs of vital
reactions. No other injury except those described could be detected
even on artificial dissection and examination.

12. Doctor Amitava Das (PW 18) has opined that death was due to the

effects of Septic absorption from infected ulcers resulting from burn

injuries ante- mortem in nature. The said doctor has proved the post

mortem report (exhibit 8) into evidence. On consideration of the evidence

of PW 18 and the post mortem report (exhibit 8), I hold that deceased died

due to the effects of Septic absorption from infected ulcers from burn

injuries which is ante-mortem in nature.

13. PW 9 is Sukumar Das, who is the co-villager of the accused. He has

stated that wife of Bapi died setting fire on herself. He does not know how

and for what reason she set on fire. PW 10 is Rabin Ruidas. The evidence

of Rabin Ruidas including his cross-examination reveals that on his asking

wife of Bapi told that she set fire on herself when she was preparing bread.
PW 12 is Samir Ruidas who has deposed that he carried the wife of Bapi

by his van after she set herself on fire and received burn injury in her

person. On asking he came to know that while she was preparing bread

she set on fire. The evidence of these witnesses goes to show that they

have nowhere stated in their evidence that they have witnessed the

incident to the effect that Arati Majhi caught injury on her person while

she was preparing bread. PW 9 did not make any whisper as to how she

got herself on fire and PW 12 has not stated the source of knowledge for

coming to know as to how the deceased caught fire. Defendant did not

produce any witness to prove that the victim caught fire carelessly when

she was preparing food. Therefore, on consideration of the evidence of PW

9, 10 and 12, I am of the view that their evidence is not convincing,

acceptable and believable.

14. Since, the main thrust of the argument of the Counsel for the

appellant is that the dying declaration is not trustworthy. I deem it

appropriate to discuss the liability with regard to the dying declaration

(exhibit 6). The Apex Court in the case of Ramilaben Hasmukhbhai

Khristi and Anr. V. State of Gujarat, Suleman Yakubbhai Khristi

Parmar V. State of Gujarat and Dahyabhai Ashabhai Khristi Parmer

Ors. V. State of Gujarat (2002) 7 SCC 56 has been pleased to hold as

under:

“Under the law dying declaration can from the sole basis of
conviction, if it is free from any kind of doubt and it has been
recorded in the manner as provided under the law. It may not be
necessary to look for corroboration of such a dying declaration. As
envisaged, a dying declaration is generally to be recorded by an
Executive Magistrate with the certificate of a medical doctor about
the mental fitness of the declarant to make the statement. It may
be in the form of question and answer and the answers be written
in the words of the person making declaration. But the court
cannot be too technical and in substance if it feels convinced about
the trustworthiness of the statement which may inspire confidence
such a dying declaration can be acted upon without any
corroboration.”

15. The Hon’ble Apex Court in the case of Shakuntala V. State of

Hariyana, AIR 2001 SC 2709 has taken into consideration its various

decisions and culled out the principles governing dying declarations. It

would be useful to reproduce para 9 of the judgment:

“9. Though a dying declaration is entitled to great weight, it is
worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as an
obligation of oath could be. This is the reason the Court also insists
that dying declaration should be of such a nature as to inspire full
confidence of the Court in its correctness. The Court has to be on
guard that the statement of deceased was not as a result of either
tutoring or prompting or a product of imagination. The court must
be further satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the assailant.

Once the court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without any
further corroboration. It cannot be laid down as an absolute rule of
law that the dying declaration cannot form the sole basis of
conviction unless it is corroborated. The rule requiring corroboration
is merely a rule of prudence. This Court has laid down in several
judgments the principles governing dying declaration, which could
be summed up as under as indicated in Smt. Paniben vs. State of
Gujarat (AIR 1992 SC 1817).

i.There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.[ Munnu
Raja Anr. V. The State of Madhya Pradesh (1976) 2 SCR 764)] ii.
If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. [State
of Uttar Pradesh v. Ram Sagar Yadav Ors.(AIR 1985 SC 416) and
Ramavati Devi V. State of Biahr (AIR 1983 SC 1640] iii. The Court
has to scrutinize the dying declaration carefully and must ensure
that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and
identify the assailants and was in a fit state to make the
declaration. [K. Ramachandra Reddy and Anr. V. The Public
Prosecutor (AIR 1976 SC 1994)].

iv. Where dying declaration is suspicious, it should not be acted
upon without corroborative evidence. [Rasheed Beg V. State of
Madhya Pradesh (1974 (4) SCC 264)].

v. Where the deceased was unconscious and could never make
any dying declaration the evidence with regard to it is to be
rejected. [Kaka Singh V. State of M.P. (AIR 1982 SC 1021)] vi. A
dying declaration which suffers from infirmity cannot form the basis
of conviction.[ Ram Manorath and Ors. V. State of U.P. (1981 (2)
SCC 654)].

vii. Merely because a dying declaration does contain the details
as to the occurrence. It is not be rejected. [State of Maharashtra V.
Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)] vii. Equally,
merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth.
[Surajdeo Oza and Ors. V. State of Bihar (AIR 1979 SC 1505)] ix.
Normally the Court in order to satisfy whether deceased was in a fit
mental condition to make the dying declaration look up to the
medical opinion. But where the eye witness said that the deceased
was in a fit and conscious state to make the dying declaration, the
medical opinion cannot prevail.[ Nanahau Ram and Anr. V. State of
Madhya Pradesh (AIR 1988 SC 912)].

x. Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be acted
upon. [State of U.P. V. Madan Mohan and Ors. (AIR 1989 SC 1519)]
xi. Where there are more than one statement in the nature of dying
declaration, one first in point of time must be preferred. Of course, if
the plurality of dying declaration could be held to be trustworthy
and reliable, it has to be accepted. [Mohanlal Gangaram Gehani V.
State of Maharashtra (AIR 1982 Sc 839)].”

13. In the case of Paparambaka Rosamma v. State of A.P.,
reported at (1991)7 SCC 695, the Apex Court has taken a view that
since the certificate of the Doctor was not to the effect that the
patient was in a fit state of mind to make the statement the dying
declaration cannot be accepted by the Court to form the sole basis
for conviction. Another three Judge Bench in the case of Koli
Chunilal Savji v. State of Gujarat, reported at (1999) 9 SCC 562,
has held that if the materials on record indicate that the deceased
was fully conscious and was capable of making a statement, the
dying declaration of the deceased could not be ignored merely
because the Doctor had not make the endorsement that the
deceased was in a fit state of mind to make the statement. Since
the decisions in the afroresaid two mattes were somewhat contrary,
the matter was referred to the Constitution Bench in the case of
Laxman v. State of Maharashtra, reported at (2002) 6 Supreme
Court Cases 710. Paras 3 and 5 read as under:

“3. The juristic theory regarding acceptability of a dying
declaration of a dying declaration is that such declaration is made
in extremity, 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 one the death bed is 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 deceases was not as a result of either
tutoring or promoting 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 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 mind of the declarant the dying declaration is not
accepted. A dying declaration can be oral or in writing and in 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 is absolutely
necessary, although to assure authenticity it is usual to call a
magistrate, if available for recoding 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.

5.The court also in the aforesaid case relied upon the decision of
this court in Harjeet Kaur v. State of Punjab case wherein the
magistrate in his evidence had stated that he had ascertained from
the doctor whether she was in a fit condition to make a statement
and obtained an endorsement to that effect and merely because an
endorsement was made not only the declaration but application
would not render the dying declaration suspicious in any manner.
For the reasons already indicated earlier, we have no hesitation in
coming to the conclusion that the observations of this court in
Paparambaka Rosamma and Ors. V. State of A.P. (at SCC P.701,
para 8) to the effect that”…in the absence of a medical certification
that the injured was in a fit state of mind at the time of making the
declaration, it would be very much risky to accept the subjective
satisfaction of a magistrate who opined that the injured was in a fit
state of mind at the time of making a declaration”

has been too broadly stated and is not the correct enunciation of
law. It is indeed a hyper-technical view that the certification of the
doctor was to the effect that the patient is conscious and there was
no certification that the patient was in a fit state of mind specially
when the magistrate categorically stated in his evidence indicating
the questions he had put to the patient and from the answers
declaration. Therefore, the judgment of this court in Paparambaka
Rosamma and Ors. V.State of A.P. must be held to be not correctly
decided and we affirm the law laid down by this court in Koli
Chunilal Savji and Anr. V. State of Gujarat case.”

16. I have examined the dying declaration (exhibit 6), which was

recorded by PW 13, Sub-Inspector of Police. According to him, he was

endorsed the Haripal Police Station Case No. 03 dated 18.01.01 for

investigation. During investigation, he visited the P.O., prepared rough

sketch map of the P.O. with index, seized a stove with oil, plastic jerrican

with oil, match stick, a printed burnt bedsheet and bed head-ticket from

Calcutta Medical College and Hospital. He further deposed that he

recorded dying declaration of the patient at Medical College Hospital in

presence of Dr. Sivaji Daschowdhury. The doctor stated to him that the

patient had her capacity to make her statement and he took LTI of the

patient on the dying declaration. He examined the witnesses and collected

injuries report of the patient from Haripal Primary Health Centre. PW 13

had proved the rough sketch map with index (exhibit 5) seizure list

(exhibits 3, 3(a) and 3(b)) and dying declaration (exhibit 6) into evidence.

17. In the cross-examination PW 13 testified that patient was brought

to Haripal Hospital on 16.01.01 and she was brought to Calcutta Medical

College and Hospital on 18.01.01. He recorded dying declaration of the

patient on 20.01.01. This witness was cross-examined at length. He
denied the suggestion that he submitted charge-sheet without any basis

and he brought a false story against the accused through the investigation.

18. On careful examination of the evidence of PW 13, I find that his

evidence to be reliable and trustworthy. He has clearly and categorically

deposed that he recorded the dying declaration of the patient at Medical

College and Hospital in presence of Dr. Sivaji Das Chowdhury, and said

doctor stated to him that the patient had her capacity to make her

statement and he took LTI of the patient on the dying declaration. PW 13

has also denied that he did not visit the hospital and he did not make the

dying declaration of the patient or that the LTI appearing in the dying

declaration is not the LTI of the victim. From the exhibit 6, dying

declaration, it is found that Doctor Sivaji Das Chowdhury has made an

endorsement to the effect that “statement recorded in my presence”. On

consideration of the evidence of PW 13 and exhibit 6, I hold that it cannot

be said that deceased was tutored or did not make the statement.

19. It has been repeatedly held by the Supreme Court that it is not

mandatory that a dying declaration should be recorded in a question-

answer form, or that it requires corroboration if it is trustworthy and

inspired confidence. In view of the law laid down by the Supreme Court,

which has been extracted above, the submissions made by the learned

Counsel for the appellant are without any course and the same are

rejected.

20. In Kamalavva vs. State of Karnataka reported in (2009) 13 SCC

614, it has been held that the Doctor who was present at the time of
recording the dying declaration had attached certificate to the effect it was

recorded in his presence. The Hon’ble Apex Court rejected the technical

objection regarding non-availability of a certificate and endorsement from

the doctor regarding the mental fitness of the deceased. It was further

held that the view taken by the Hon’ble Court in numerous decisions is

that this is a mere rule of prudence and not the ultimate test as to whether

or not the dying declaration was truthful or voluntary. In so far as the

case before us is concerned, I may only note that there is no format

prescribed for recording dying declaration and in the case in hand the

doctor has given an endorsement to that effect that statement was

recorded in his presence.

21. The Exhibit 6, dying declaration, discloses that deceased made a

statement to PW 13 and the statement by the deceased is corroborated by

the endorsement as made by Doctor Sivaji Daschowdhury in exhibit 6.

The said statement also discloses that deceased stated to PW 13 that her

husband poured kerosene oil on her person and put her on fire.

22. Another reason, why I find the dying declaration to be credible and

trustworthy, is that, when the deceased was brought to the hospital on

16.01.01, she had herself made a statement to the PW 13 in presence of

the doctor that her husband poured kerosene oil on her body and put her

on fire. The evidence of PW 13, thus, lends support to the dying

declaration.

23. In this case, the doctor Sivaji Daschowdhury has not been

examined. No suggestion was thrown to the PW 13 that he did not record

the statement of the deceased in present of doctor Sivaji Daschowdhury

and the endorsement as appears in the dying declaration made by doctor

Sivaji Daschowdhury is not the endorsement of said doctor. In view of

that, I hold that the non- examination of the said doctor is not fatal. In the

premises noted above, I may hold that the dying declaration recorded by

PW 13 is reliable and trustworthy as the same was endorsed by the doctor

Sivaji Daschowdhury.

24. Learned lawyer appearing for the appellant urged that the appellant

has been falsely implicated by the police and the dying declaration

recorded by PW 13 should be rejected.

25. In the case of Girja Prasad vs. State of Madhya Pradesh reported

in AIR 2007 SC 3106 it has been held that “there is no rule of law, which

lays down that no conviction can be recorded on the testimony of the

Police Officials even if such evidence is otherwise reliable and trustworthy.”

26. In a recent decision rendered by the Hon’ble Supreme Court of India

in the case of Govindaraju alias Govinda vs. State By Sriramapuram
Police Station , reported at (2012) 4 SCC 722, it has been reiterated that

there is no rule of law, which lays down that no conviction can be recorded

on the testimony of a Police Official and it is only when the interest of the

police officer in the success of the case is motivated by overzealousness to

an extent of his involving innocent people, that no credibility should be

attached. Relevant portion of the judgment read as under:

“30.It cannot be stated as a rule that a police officer can or
cannot be a sole eyewitness in a criminal case. It will always
depend upon the facts of a given case. If the testimony of such a
witness is reliable, trustworthy, cogent and duly corroborated by
other witnesses or admissible evidences, then the statement of such
witness cannot be discarded only on the ground that he is a police
officer and may have some interest in success of the case. It is only
when his interest in the success of the case is motivated by
overzealousness to an extent of his involving innocent people; in that
event, no credibility can be attached to the statement of such
witness.”

27. There is no evidence on record or any fact to show that in the

present case PW13, Mithun Banerjee acted in a motivated or

overzealousness manner to the extent that he would involve an innocent

person just to solve the case. Thus, argument of the Counsel for the

appellant is unacceptable.

28. Defence has taken the plea that at the time of incident he was

playing cards with ‘Pacha’, ‘Srikanta’ and ‘Samir’ at a place called ‘Morer
Matha’ and he was attracted by a noise from the house of Rabin Ruidas.

He rushed to the house of Rabin Ruidas and found his wife was burning.

He tried to douse the fire and he took his wife to the hospital. Record goes

to show that appellant did not produce the said ‘Pacha’, ‘Srikanta’ and

‘Samir’ before this Court to prove that at the time of the alleged incident he

was playing cards with them. No explanation for non-production of the

said witnesses has been assigned. This withholding speaks volume

against the defence. Therefore, it may be concluded that the appellant’s

explanation that at the time of alleged incident he was playing cards at a

place called ‘Morer Matha’ is unconvincing.

29. Appellant, as DW 1 had deposed that on hearing noise, he rushed

towards the house of Rabin Ruidas and found that his wife was burning

and he tried to douse the fire. In cross-examination, he clearly and

categorically stated that he was not medically treated and he did not

sustain injury at the time of rescuing his wife. I failed to accept such

statement of the appellant as expressed. If the accused has attempted to

save deceased then he would have suffered some burn injuries on his

person. Since, the appellant did not sustain any injury on his person, it is

not believable and acceptable that appellant tried to douse the fire or tried

to rescue his wife.

30. In view of the above discussion I must hold that the appellant has

failed to make out any case for interference with the impugned judgment

and order of conviction and sentence passed by the learned Trial Court.

31. In the light of the above discussion, I find that there is no merit in

the appeal. Therefore, the appeal is dismissed.

32. The Lower Court Record along with copy of this judgment be sent to

the learned Trial Court below at once for information and taking necessary

action.

33. Urgent Photostat certified copy of the order, if applied for, be given to

the parties on priority basis on their usual undertaking.

I agree.

(Joymalya Bagchi, J.) (Manojit Mandal, J.)

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