AB/AS/PA
Item 178
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Manojit Mandal
C.R.A. 489 of 2013
Biswajit Roy
-Vs-
State of West Bengal
Amicus Curiae : Ms. Puja Goswami, Advocate
For the State : Mr. Sudip Ghosh, Advocate,
Mr. Apurba Kr. Dutta, Advocate
Heard on : March 7, 2019
Judgment on : March 7, 2019
Joymalya Bagchi, J. :-
The appeal is directed against judgment and order dated 14.3.2013 and
15.3.2013
passed by learned Additional Sessions Judge, Fast Track Court II,
Kalyani, Nadia in Sessions Case No. 51(6) of 2011 corresponding to Sessions Trial
No.14(8) of 2011 convicting the appellant for commission of offence punishable
under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous
imprisonment for life and to pay fine of Rs.10,000/-, in default, to suffer
imprisonment for one year more.
The prosecution case, as alleged against the appellant is to the effect that in
the evening of 7th February, 2011 Basana and her minor daughter Dipika died due
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to a conflagration which burned down the room where she used to reside with the
appellant, her husband. Hearing such incident, her father Santosh Mistry (P.W.1)
and other family members rushed to the spot and found that local people were
trying to douse the fire. P.W.1 was informed by the said local people that the
appellant had run away from the spot. Suspecting that his son-in-law, that is, the
appellant herein, had murdered Basana and her daughter, P.W.1 lodged written
complaint resulting in registration of Haringhata P.S. Case No.52 of 2011 dated
7.2.2011 under Sections 498A/302 of the Indian Penal Code.
On 11.2.2011, the appellant was arrested from the house of his elder
brother in the village with burn injuries. While in custody, he was treated in
hospital for a number of days due to infection that had developed from his burn
injuries.
In the course of trial, charges were framed against the appellant under
Sections 498A/302 of the Indian Penal Code. To prove its case, prosecution
examined 17 witnesses and exhibited a number of documents. Defence of the
appellant was to the effect that his wife and daughter had suffered burn injuries
due to accidental fire. Upon hearing the incident he rushed to the spot and
suffered burn injuries while trying to save them. He was treated at the Haringhata
Rural Health Centre on the selfsame day and was subsequently arrested in this
false case instituted against him at the behest of his father-in-law (P.W.1). In
support of his plea, the appellant examined six witnesses all of whom being
Medical Personnel who had treated him for his burn injuries.
In conclusion of trial, the trial judge by the impugned judgment and order
dated 14.3.2013 and 15.3.2013 convicted the appellant for commission of offence
punishable under Section 302 of the Indian Penal Code and sentenced him to
suffer rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to
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suffer imprisonment for one year more. By the selfsame judgment the appellant
was acquitted of the charge under Section 498A of the Indian Penal Code.
Nobody appears for the appellant.
Ms. Puja Goswami is requested to appear as amicus curiae and assist this
court. She argued that the prosecution has not been able to prove how the victims
suffered burn injuries. No investigation was made with regard to the manner in
which the house caught fire. There is no direct evidence that the appellant was
present at the house prior to the incident of fire or had special knowledge with
regard to the circumstances in which the victims suffered burn injuries.
Prosecution has not been able to explain the burn injuries suffered by the
appellant which clearly improbabilises the allegation that he did not try to save his
wife and children who suffered burn injuries or that he had fled away from the
spot. Hence, prosecution has not been able to prove its case beyond doubt and
the appellant is entitled to the benefit of doubt.
On the other hand, learned Advocate appearing for the State submitted
that there is no doubt that the wife and daughter of the appellant had suffered
burn injuries on the fateful evening at the home of the appellant. The appellant
during his examination under Section 313 of the Criminal Procedure Code
prevaricated on the issue whether he was present at the house when the fire broke
out. Inconsistent stance adopted by the appellant exposes the hollowness of the
defence version and points to his guilt. The appellant also failed to explain the
injuries suffered by him in the course of the incident reinforcing the conclusion
that he had suffered such injuries as he was present in the house when the fire
broke out. Witnesses also saw the appellant to run away from the place of
occurrence without helping his wife and daughter. These circumstances establish
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his culpability and rules out any alternate hypothesis consistent with his
innocence. Hence, the prosecution case has been proved beyond doubt.
P.Ws.1 to 5 and 7 are the relations of the victim.
P.W.1, Santosh Mistry, is the father of the victim Basana and the de-facto
complainant. He deposed Basana was married to the appellant 12 years ago. A
daughter, aged about 8 years at the time of incident, was born from their wedlock.
The appellant was a day labourer and did not have regular work. He was addicted
to liquor and gambling. Accordingly, he could not run his household and the
victim used to work in NREGA projects to maintain the family. P.W.1 used to
provide money and food articles to the family of the appellant. Around 7/7.30 P.M.
he heard shouts from the house of the appellant and rushed to the spot along with
others. He found the minor daughter Dipika was lying on the cot while Basana
was lying on the floor with the burn injuries. Both of them were found dead. He
lodged written complaint which was scribed by Subrata Das, Ext.1. Police came to
the spot and prepared inquest over the dead bodies of the victims. He signed on
the inquest reports.
The evidence of P.W.1 is corroborated by his wife P.W.3, Smt. Mamata
Mistry. She, however, stated that she did not see the appellant at the spot.
In cross-examination, she admitted that she did not know how the house
had caught fire. She stated that her daughter had come to her house in the
afternoon around 4.00 P.M. along with the minor child.
P.W.2, Bablu Haldar is the maternal uncle of Basana on the fateful day at
7.00 P.M. He also came to the post. He found the dead bodies of the victims in the
burnt room. He deposed that he saw the appellant and others flee away from the
house. He signed on the inquest reports.
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In cross-examination, he admitted that he did not know how the house
caught fire. He also admitted that the appellant used to love his daughter very
much.
P.W.4, Smt. Namita Halder is the wife of P.W.2. She claimed that she had
come to the spot and doused the fire with water. She enquired why the appellant
did not raise shouts and douse the fire to save his wife and daughter. The
appellant did not reply and went away.
She was cross-examined with regard to omissions made in her deposition
with regard to her earlier statement to police.
P.W.5, Smt. Sampa Ghgosh and P.W.7, Sri Sumanta Mistry are the elder
sister and brother of Basana respectively. P.W.5 stated that she saw the appellant
and other in laws run away from the house when she came to the spot, whereas
P.W.7 stated that he did not see the appellant at the spot.
P.W.9, Sri Netai Biswas and P.W.15, Sri Mahadeb Joydghar are the
neighbours of the appellant. They did not support the prosecution case and were
cross-examined with regard to their previous statements made to the police.
P.W.9 in cross-examination stated that the appellant and his family
members had come to their house for attending Baidyanath Puja and when he was
distributing prasad, they heard shouts “Agun, Agun”. Thereupon, they came to the
house of the appellant. Both P.W.s 9 and 15 stated that Basana used to keep jute,
colour, spirit, fevicol in the house to prepare flowers and other ornamental articles
for selling in the local fair. There was a big pot in the house containing gum which
was seized by police.
P.W.9 stated that when he came to the spot, he found Biswasjit that he had
sustained burn injuries on his leg. The local people took him in a rickshaw and
gave him first aid.
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P.W.11. Sri Himangshu Biswas, another local witness was a signatory to
the seizure list prepared by the police with regard to the burnt jute sticks, burnt
cloth and a pot containing gum. He proved his signature in the seizure list,
Ext.6/1.
P.W.16, Dr. Utpal Kumar Nandi, the post mortem doctor held post mortem
over the bodies of the victim. He proved the post mortem reports, Exts.15 and 16.
He deposed that victims died due to burn injuries.
P.W.14, Anup Kumar Samanta is the Investigating Officer of the instant
case. He came to the place of occurrence, prepared rough sketch map with index,
seized various articles including ashes, burnt pieces of jute sticks, burnt pieces of
bamboo, burnt cloth, burnt cotton and a burnt plastic pot containing white
materials like fevicol under a seizure list. He arranged for taking of photographs of
the dead bodies of the victim and sending them for post mortem examination. He
collected the post mortem reports and submitted charge sheet. He arrested the
appellant on 11.2.2011 from the house of his elder brother at village Dhakalipara.
In cross-examination, he was extensively cross-examined with regard to the
embellishments in the deposition of prosecution witnesses when compared with
their earlier statement to police.
D.W.3, Dr. Tapas Mallick and D.W.6, Dr. Prashanta Kumar Sarkar are the
medical officers who treated the appellant at JNM Medical College and Hospital.
D.W.1, Dr. Sayanti Chatterjee was attached to Haringhata RHC on
7.2.2011. He deposed he examined the appellant at 10.15 P.M. and found burn
injuries over his left foot as well as right foot. He proved his report, Ext.A.
D.W.2, Dr. Ashok Bakshi treated the victim in the correctional home and
proved the medical report, Ext.C.
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D.W.3, Dr. Tapas Mallick, D.W.4, Dr. Subhayan Mondal, D.W.5, Dr. R.B.
Hembram and D.W.6, Dr. P.K. Sarkar treated the victim at JNM Medical College
and Hospital at Kalyani. They proved the bed head ticket, treartment sheets and
discharge certificate.
Prosecution has relied on the following circumstances to prove the guilt of
the appellant:-
a) the appellant was married to Basana and were living as husband and
wife with their daughter Dipika at the matrimonial home;
b) the appellant was a habitual drunkard and gambler and did not have
regular employment. He tortured to his wife over demands of money.
His wife worked under NREGA projects to sustain the family. Parents of
Basana, i.e. P.W.1 and P.W.3 used to provide money and other
essentials to run the household;
c) the appellant was with his wife and daughter at the time when the
house caught fire resulting in their death. The appellant did not attempt
to save them by dousing the fire but ran away from the spot.
d) The appellant failed to explain the circumstances in which he suffered
burn injuries on both his legs.
In a case based on circumstantial evidence, it is the duty of the prosecution
to prove the circumstances beyond doubt and such circumstances must form a
complete chain which would unerringly point to the guilt of the appellant.
I have sought to examine the evidence on record in the light of the
aforesaid legal proposition to determine whether the prosecution has been able to
prove its case beyond doubt.
No doubt, there is overwhelming evidence on record to show that the room
occupied by the couple had been completely burnt down on the fateful evening i.e.
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at 7/7.30 P.M. on 7.2.2011. As a result of the conflagration, Basana, wife of the
appellant and his daughter Dipika suffered burn injuries and died. While the
prosecution would like me to believe that it was the appellant who had set the
house on fire to kill the victims, defence of the appellant is one of accidental fire
resulting in their death.
Learned Counsel appearing for the appellant argued that the appellant was
present at the place of occurrence when the house caught fire. In fact, P.W. 9, a
hostile witness, deposed that the appellant along with his family members were
attending a puja in his house when the fire broke out.
Learned Counsel appearing for the prosecution has strongly disputed such
submission and argued that the appellant has taken inconsistent stance with
regard to his presence at the house during his examination under Section 313 of
the Code of Criminal Procedure. Such inconsistent stance of the appellant
militates against his innocence and bolsters the prosecution case.
In order to appreciate the aforesaid contention of the learned Counsel
appearing for the State, I consider it apposite to set out portions of the
examination of the appellant under Section 313 of the Code of Criminal Procedure
which had been referred to by the learned Counsel in support of his argument :
“Q. Evidence on record reveal that on 7.2.2011 at about 7P.M./7-30P.M. you
killed Basana and your daughter Dipika by fire. What shall you say about
such evidence on record ?
Ans. I was at home.
Q. Santosh Mistry (P.W-1) told before this court that on 7.2.2011 at about
7P.M./7.30P.M. when he was at his house, he heard shouts from your
house and then rushed to your house. What shall you say about such
evidence on record ?
Ans. He conspired. We were at the Mandir.
Q. Santosh Mistry (P.W-1) told before this court that entering your house he
saw that Dipika was lying on the cot whereas Basana was lying under the
9cot on the floor of that room both were dead by that time. Whaat shall
you say about such evidence on record ?
Ans. What shall I say – at that time, I was not at home.”
No doubt the responses of the appellant to the aforesaid questions give rise
to an impression of apparent inconsistency. However, when his responses are
seen in the backdrop of the evidence on record the trend of suggestions put to the
prosecution witnesses during cross-examination, it would appear that the said
responses are neither inconsistent nor evasive. It appears from the suggestions
put to the prosecution witnesses during cross-examination that the appellant was
not at the place of occurrence when the house caught fire but upon hearing of the
incident he had rushed to the spot. No doubt, suggestions given by the appellant
to the prosecution witnesses were denied and cannot be treated as evidence.
However, P.W. 9, in his cross-examination, supported the defence plea and stated
that the appellant and his family members were at the puja in his house when the
house caught fire. If the responses of the appellant is judged from the backdrop of
such evidence adduced during trial it is possible that the appellant was initially at
the Mandir and thereafter rushed home. Hence, the responses of the appellant are
clearly reconcilable and cannot be said to fall within the species of inconsistent or
contradictory defence which would give rise to an inference of guilt against him. It
is trite law that a prosecution case must stand at his own legs and not on the
hollowness of the defence version. In the present case, prosecution has failed to
lead evidence with regard to the presence of the appellant at the place of
occurrence when the house caught fire. On the contrary, P.W. 9 deposed that the
appellant was at the puja organized at his residence when the incident occurred.
It has been contended that P.W. 9 is a hostile witness and ought not to be relied
upon. I am unable to accept such contention. Evidence of a hostile witness
cannot be thrown out in toto. Evidence of such witness has to be tested in the
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backdrop of the facts and circumstances of the case and portions which appear to
credible and not inconsistent with his earlier statement to police may be relied
upon. P.W. 9 has been extensively cross-examined with regard to his earlier
statement to police and I do not find anything in his earlier statement which either
contradicts or runs counter to his deposition in Court with regard to the fact that
the appellant was at his place when the house caught fire. Even if his earlier
statement to police (as deposed by P.W. 14) is believed, such version is neither
found improbable nor rendered untrustworthy. P.W.9 also clarified that he has no
enmity with the family members of the victim who are as much co-villagers as the
appellant. Hence, I consider it safe to rely on the deposition of P.W.9 with regard to
the presence of the appellant at the puja at his residence when the fire broke out.
Initial onus to establish the presence of the appellant in the house at the time
when the house caught fire was on the prosecution. Prosecution has hopelessly
failed to prove such fact by leading evidence. On the other hand, evidence of
P.W.9 gives a contrary impression. When the prosecution has failed to prove that
the appellant was present at the place of occurrence when the house caught fire
and there is contradictory evidence on record coming from mouth of P.W. 9, I am
of the opinion that it was incorrect to come to an adverse inference against the
appellant with regard to his culpability as he was unable to explain the
circumstances in which his wife and daughter suffered burn injuries. Onus to
proof ought not be lightly shifted to the accused by resorting to section 106 of the
Evidence Act. It is the duty of the prosecution to prove its case beyond doubt and
only when circumstances are established which show “special knowledge” of the
accused with regard to the facts of the case, the onus may shift on the accused. In
the facts and circumstances of the case, I do not find that the prosecution has
been able to discharge its initial onus that the appellant was at the place of
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occurrence when the fire broke out, so at to shift th onus on the appellant under
Section 106 of the Evidence Act to explain the circumstances how his wife and
daughter suffered burn injuries. Coming to the post occurrence conduct of the
appellant, I find that the prosecution evidence in that regard are contradictory and
extremely tenuous. In the F.I.R., P.W. 1 claimed that he heard from local villagers
that the appellant was seen running away from the spot. In Court, he
contradicted his earlier version and claimed that he himself saw that the appellant
running away from the spot. While P.Ws. 3,4 and 5 claimed that the appellant was
at the spot and did not help to rescue the victims and had run away, P.Ws. 3 and
7 claimed that they did not see the appellant at the spot at all. That apart,
versions of the aforesaid witnesses particularly P.W. 4 appear to suffer from
embellishments when compared with their earlier statements to police.
I am unwilling to give credence to such contradictory and embellishment
versions with regard to the so-called indifference of the appellant to save the
victims and run away from the spot and come to a conclusion that prosecution
has been able to prove the aforesaid circumstance beyond doubt. Furthermore, it
appears the appellant had suffered burn injuries on both his legs and had to be
treated at the rural hospital on the self-same date. In view of the fact that the
appellant had suffered burn injuries on both his legs, it is highly unlikely that
could have run away from the spot as claimed by the prosecution witnesses.
Prosecution has failed to explain the burn injuries suffered by the appellant on or
about the time when the incident occurred. It has been argued that onus was on
the appellant to explain such injuries. Having failed to do so, adverse inference
ought to be drawn against him. I am unable to accept such proposition
propounded by the prosecution. Duty to explain the injuries on an accused
squarely rests on the shoulder of the prosecution and in the event such injuries
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are not properly explained benefit of doubt may be extended to the accused. When
prosecution has otherwise failed to probabilise the presence of the appellant in the
house at the time of occurrence, injuries of his legs cannot irresistibly give rise to
such inference as alternatively, such injuries may be caused when the appellant,
upon hearing of the incident, rushed to the spot and was singed by the fire while
trying to enter the house.
Evidence has come on record that the appellant was removed by villagers to
the local health centre on that day for treatment. D.W.1 proved the burn injuries
suffered by him. Thereafter, the appellant was arrested from his brother’s
residence in the village on 11.02.2011. These circumstances, in my opinion, do
not show that the appellant had fled away from the spot after the incident or had
evaded the process of law, as alleged.
Motive for commotion of the offence has also not been established. Even the
trial court was of the opinion that the evidence with regard to torture and cruelty
on Basana was of such a nature that it did not establish the offence under Section
498A of the Indian Penal Code. On the contrary, evidence has come on record
that the appellant used to love his daughter very much. P.W. 3 claimed that
Basana and her daughter have come to her residence on the fateful night in the
afternoon. She did not complain about the conduct of the appellant to her mother
at that material point of time. These facts, therefrom, probabilise the possibility of
death by accidental fire than at the hostile hand of the appellant as proposed by
the prosecution.
In the light of the aforesaid discussion, I am constrained to hold that the
prosecution has not been able to prove its case beyond reasonable doubt and the
appellant is entitled the benefit of doubt.
The appeal is accordingly allowed.
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Conviction and sentence of the appellant is accordingly set aside.
The appellant shall be released from custody, if not wanted in any other
case, upon executing a bond to the satisfaction of the trial court after six months
from date in terms of Section 437A of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down
at once to the learned trial court for necessary action.
I record my appreciation for the above assistance rendered by Ms. Goswami,
as amicus curiae in disposing of the appeal.
Photostat certified copy of this order, if applied for, be given to the parties on
priority basis on compliance of all formalities.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)
