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Jiblal Hazra & Ors vs The State Of West Bengal on 27 September, 2018

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

BEFORE:

The Hon’ble Mr. Justice Joymalya Bagchi
And
The Hon’ble Mr. Justice Ravi Krishan Kapur

C.R.A. NO. 615 of 2016
Jiblal Hazra Ors. …… Appellant
-vs-
The State of West Bengal………Respondent

For the Appellants : Mr. Mujibar Ali Naskar
Mr. Sanjay Kumar Ghosh

For the State : Mr. Neguive Ahmed
Ms. Zareen N. Khan
Hearing concluded : 29 August, 2018
Judgment on : 27 September, 2018

Ravi Krishan Kapur, J.:

1. The appellants assail their conviction under Section 302 of the IPC read

with Section 34 of the IPC sentencing them to life imprisonment.

2. An FIR was lodged on 8 June, 2014 by PW-1, Parash Hazra being the

father of the victim girl namely Rinky Devi. In the complaint, it was alleged

by the complainant that he had given his daughter Rinky Devi in marriage

to one Jiblal Hazra of Amdanga Parbelia Colliery under P.S. Neturia. After

their marriage, his daughter and her husband were residing in their

matrimonial house with other relatives. Since the inception of the
marriage, the husband and the relatives always tortured his daughter and

demanded cash and dowry.

3. It was further alleged in the FIR that on 6 June, 2014 at 7.30 PM his

daughter was tortured physically and mentally and was set on fire after

pouring kerosene oil by Jiblal Hazra, Hemlal Hazra, Manish Kumar Hazra,

Gori Devi, Baby Devi and Puja Kumari. It is further alleged that all the

accused persons conspired and burnt the complainant’s daughter. The

victim was admitted to Vivekananda Hospital at Durgapur in a very serious

condition, where she succumbed to her injuries and died.

4. On receipt of the aforesaid complaint the police started a case under

Sections 498A and 304B/34 of the IPC. Subsequent to her death, the

police added Section 302 of the IPC to the array of accusations. All the

accused persons pleaded not guilty and claimed to be tried.

5. In the course of the trial, the prosecution examined 16 witnesses and a

number of documents had been proved as exhibits. The defence did not

adduce any evidence. The defence of the accused persons was one of

innocence and false implication. In the examination under Section 313 of

the Cr.P.C., after the recording of examination, the accused persons

reiterated that they were innocent and they had been falsely implicated by

the father of the deceased. The accused persons contended that this was a

case of an accidental burn.

6. By a judgment and order dated 28 July, 2016 and 29 July, 2016 the Trial

Judge convicted and sentenced the appellants under Section 302 of the

IPC read with Section 34 thereof.

7. It was contended on behalf of the appellants that in convicting the

appellants the Trial Court committed errors both in law and on facts.

Counsel on behalf of the appellants contended that there was no eye

witness to the entire incident. He further contended that this was a case of

an accidental burn. He further contended that there was no evidence to

show that there was any use of kerosene oil. He contended that the next

door neighbour had not been examined. He further contended that the

prosecution had failed to prove the case beyond reasonable doubt and the

necessary eye witnesses had not been examined.

8. Counsel on behalf of the prosecution contended that the prosecution had

beyond all reasonable doubt proved that the appellants had committed

offences under Section 302 read with Section 34 of the IPC.

9. Before addressing the rival contentions of the parties I think it is essential

to appreciate the evidence of the witnesses recorded during the trial.

PW-1 (Paras Hazra) is the father of the deceased Rinky Devi and the

de-facto complainant in this case. He deposed that his daughter was

married to Jiblal Hazra in 2009. It was a negotiated marriage. After their

marriage, his daughter has gone to her matrimonial house at village

Amdanga under P.S Neturia. She was living with her husband, her father-

in-law, mother-in-law and her brother-in-law. She was treated well for the
first year but thereafter subjected to torture and cruelty at her matrimonial

home by her husband and her in-laws. They demanded cash of rupees one

lakh failing which they would beat up the deceased victim regularly.

Ultimately, on 6 June, 2014 the complainant received a telephone call

informing him that his daughter had caught fire. Subsequently, the

deceased victim was admitted to Vivekananda Hospital. The de-facto

complainant arrived at the place of occurrence about 5.30 a.m. Thereafter,

he had gone to the matrimonial house of his daughter at Amdanga. This

witness identified the written complaint which was marked Exhibit-1. This

witness further deposed that when he had visited the Vivekananda

Hospital he had managed to speak with his daughter. On being asked, his

daughter had informed him that the burn injuries were not self-inflicted

but she had been set on fire by her husband and in-laws. They had

forcefully put kerosene oil on her body. She also informed the de-facto

complainant that, she had not been given any food for the last three days

before the incident. She died at the hospital on 11 June, 2014 at about

5.00 a.m. in the morning. Subsequently, the police came to the hospital

and held an inquest over her dead body. This witness was also a signatory

to the inquest report which was marked as Exhibit-2. This witness had

also handed over a photograph of his daughter to the Investigating Officer.

This witness identified all the three accused persons including the

deceased victim’s husband who were present in Court. In cross-

examination, the witness deposed that he had five daughters and one son.
He further deposed that it took 2 to 3 hours to reach Amdanga village from

his house by a four wheeler vehicle. He deposed that his daughter’s

matrimonial village was a populated area. He further deposed that he

received a call soon after the incident. He deposed that after receiving the

telephone call on the date of the incident he had immediately gone to his

daughter’s matrimonial home. He deposed that on arrival at his daughter’s

matrimonial home he did not find her and was informed that she had been

admitted to Vivekananda Hospital, Durgapur. He had a conversation with

her daughter at the hospital. He was not sure who had admitted his

daughter to the hospital. He deposed that his daughter died leaving behind

a minor son who is living with him as per the order of the Learned Court.

He deposed that he was informed about the incident over the telephone.

After the birth of his grandson, the accused persons had left his daughter

at his home for one year. Thereafter, the husband of the deceased victim

had visited his home and taken her back. He deposed that his daughter

was an unemployed person. He deposed that his daughter was not treated

well at her matrimonial home. He deposed that it is not a fact that her

daughter caught fire at the time of cooking in the kitchen of her

matrimonial home.

PW-2 (Abdul Gaffur Ansari) is a neighbour. He deposed that he was

residing at the quarter of his brother Tapu Mia at Amdanga. He deposed

that the matrimonial home of the deceased victim was in front of his

brother’s home. He deposed that the incident took place on 6 June, 2014
in the evening at about 7.30 P.M. He deposed that he was sitting in front of

his quarter when suddenly he found a woman was coming out from the

opposite quarter with flames on her person. She was shouting and

screaming ‘bachao bachao’. At that point of time, the main door of his

quarter was open, the deceased victim entered into the quarter and jumped

into the bath tank behind the quarter. Thereafter, many women of the

locality arrived. Subsequently, the lady who was on fire was identified as

the wife of Jiblal Hazra. The locals asked the said Jiblal Hazra and his

family members to take his wife to the hospital but they did not come out

from the quarter. It was only after severe rebuke from the local people that

the accused persons came out of their home and arranged for a tempo to

take the deceased victim to the hospital. This witness was subsequently

examined by the police who had also taken his signature on the seizure

list. This witness identified the accused persons in open Court. In cross-

examination, he deposed that he was not a worker at the nearby colliery.

He further deposed that he had been living in the quarter with his family

members. He also deposed that the father-in-law of the deceased victim

was a colliery worker. He deposed that there were 15/20 persons of the

locality who had arrived when the incident had occurred. He deposed that

he had not visited the hospital. He also did not immediately visit the police

station. He further deposed that police interrogated him within one and a

half month after the incident. He was not aware of the state of mind of the

deceased victim when she had been taken to the hospital. He did not know
who had accompanied the deceased victim in the tempo to the hospital. He

reiterated that after the incident had occurred the local people had rebuked

the accused persons for refusing to take the deceased victim to the

hospital.

PW-3 (Jiten Hazra) is the younger brother of the complainant and an

uncle of the deceased victim. He deposed that Rinky was given in marriage

with Jiblal Hazra about 5 years ago at village Amdanga. At the time of her

marriage, she was given cash of Rs.50,000 and some other articles

including furniture. After her marriage, Rinky resided at her matrimonial

home with her husband and in-laws in the same place. She complained

that soon after her marriage she was subjected to cruelty and torture due

to demands of dowry. He deposed that on 6 June, 2014 in the morning he

received information that she was set on fire at her matrimonial home. He

further deposed that after getting the said information he had visited the

matrimonial home immediately but on arrival at her matrimonial home he

came to learn that she had admitted to Vivekananda Hospital. He had then

gone to Vivekananda Hospital where Rinky ultimately died. He identified all

the accused persons who were present in Court. After the death, the police

held an inquest over the dead body of the deceased victim and also

obtained his signature on the inquest report. In cross-examination, the

witness deposed that on 6 June, 2014 he was in his village situated at

Jharkhand. He further deposed that he personally received no telephone

call regarding the incident. He deposed that he arrived at the place of
occurrence at 5.00 a.m. in the morning after getting the information on the

previous night. He deposed that he was accompanied by 10/11 persons.

He deposed that none of the accused persons was present at the said

Vivekananda Hospital. He deposed that he was not allowed to enter the

hospital but only the complainant was permitted to see his daughter. He

deposed that the accused persons had admitted Rinky to the Vivekananda

Hospital. He deposed after 3/4 days of the death of Rinky the hospital

authorities released her dead body due non-payment of the hospital

charges. The witness could not recollect the exact date of death of the

deceased victim. He further deposed in his cross-examination that it was

not a fact that the deceased victim had caught fire while cooking in the

kitchen. He further stated that it was not a fact that he had deposed as per

the instructions of his elder brother.

PW-4 (Raju Hazra). This witness is a cousin of the de-facto

complainant. He knew the deceased victim and had also attended the

marriage of the deceased victim. He deposed that after marriage initially

the deceased victim was treated normally but soon thereafter there was

trouble with her in-laws in the matrimonial home. After giving birth to a

child she returned to her parental home but after a few months, she was

taken back by her husband to the matrimonial home. He further deposed

that he had come to learn from a neighbour that the deceased victim had

caught fire. He had visited the Vivekananda Hospital at Durgapur. He was

not allowed to enter the hospital. He did not see any of the accused
persons in the hospital. He came to learn from the local people of Amdanga

that the deceased victim had come out from her matrimonial home in

flames and jumped into the water tank of a neighbour. In cross-

examination, this witness deposed that he was not examined by the police.

He further deposed that he had visited the hospital with 10/11 persons. He

stated that it was not a fact that he had deposed falsely or as per the

instructions of the de-facto complainant.

PW-5 (Shiv Shankar Shaw). This witness was a resident of Amdanga

Parbelia Colliery quarter which was situated next to the matrimonial house

of the deceased victim. He identified the accused persons and deposed that

they were residing in the same locality. He knew that the deceased victim

was the wife of Jiblal Hazra. He deposed that on 6 June, 2014 in the

afternoon around 4.40 p.m. he was at his home he heard shouting and

screaming and found a huge gathering of local people outside his home. He

had seen the deceased victim in a charred condition and local ladies were

wrapping her with clothes. Thereafter, a local tempo was arranged and the

deceased victim was taken to Durgapur hospital in the same tempo. In

cross-examination, he deposed that he had not gone to the hospital. He

further deposed that he did not know how the deceased victim had caught

fire.

PW-6 (Parsuram Bhagat) was the tempo driver. He was also a resident

of Parbelia Amdanga Colliery quarter. He knew the accused persons as

they were residents of the same locality. On 6 June, 2014, at around 5.00
p.m. he had carried the deceased victim in his tempo and taken her to the

hospital accompanied by some of the accused persons. This witness was

not examined.

PW-7 (Surendra Kumar Mahato), was a neighbour of the accused

persons and a resident of the same locality. He knew the deceased victim

as the wife of the appellant no.1. He was present when the police arrived at

the place of occurrence after the incident. He saw the police seize an empty

kerosene oil jariken, a match box and some burnt wearing apparels. He

identified his signature in the seizure list and also identified the seized

articles. In cross-examination, he deposed that the seized articles did not

have any seal label with his signature.

PW-8 (Mahesh Das) was a neighbour and a resident of Amdanga

Parbelia Colliery quarter. He knew all the accused persons. He deposed

that the accused persons were residents of the same locality. He had heard

that the wife of the complainant no.1 had died due to burn injuries. He was

present when the police arrived at the home of the accused persons. He

identified the seized articles. He identified the signature in the seizure list.

In cross-examination, he deposed that the seized articles did not have any

label with his signature.

PW-9 (Shib Charan Show) is a resident of Parbelia Amdanga Colliery

quarter. He knew and identified all the accused persons. He deposed that

the accused persons were residents in a neighbouring quarter. He deposed

that the incident took place on 6 June, 2014. At the time of the incident,
he was at his place of work. He had heard that the deceased victim had

caught fire and sustained severe burn injuries. He subsequently came to

learn that the deceased victim had died leaving behind a son. In cross-

examination, he deposed that after returning from duty he did not find the

deceased victim.

PW-10 (Bharat Yadav) is a neighbour of a nearby locality where the

accused persons resided. He knew all the accused persons and identified

them in Court. He knew that the deceased victim had died out of burn

injuries sustained on 6 June, 2014 in the evening at about 6.00/6.30 p.m.

He was at his home at the time of the incident. Upon hearing that the

deceased victim had caught fire and had jumped into the water tank of a

neighbour he visited the place of occurrence. Upon arrival, he found some

women from the locality who had taken out the deceased victim from the

water tank, arranged a tempo for her removal of the hospital. As a

neighbour, he deposed that the deceased victim was not treated well in her

matrimonial home. He further deposed that he had heard from other local

women that the deceased victim had been tortured by her husband and

her in-laws. In cross-examination, he deposed that he was at his home at

the time of the incident. He further deposed that when he reached the

place of occurrence he found 15/20 persons had already arrived. He was

interrogated by the police in connection with this case. He deposed that he

was not on visiting terms with the accused persons. He further deposed

that it was not a fact that he had given any false evidence as per the
instructions of the de-facto complainant. He also deposed that he had

never visited the matrimonial home of the deceased victim.

PW-11 (Bijoy Shaw). This witness identified all the accused persons

present in the dock. He deposed that on 6 June, 2014 he was on official

duty. He subsequently came to learn, that the deceased victim had caught

fire and sustained severe burn injuries and was subsequently taken to the

hospital. He deposed that the accused persons were his neighbours but he

did not know much about their family affairs. In cross-examination, he

deposed that it was not a fact that he was examined by the police in

connection with this case. This witness was declared hostile by the

prosecution.

PW-12 (Asoke Kumar Barik). He is an Assistant Sub-Inspector of

police attached to the Neturia P.S, District Purulia at the relevant point of

time. He had conducted an inquest over the dead body of the deceased

victim. He had made a requisition for a magisterial inquest over the dead

body of the deceased victim. He identified his signature over the inquest

report which was marked Exhibit-2/2. In cross-examination, he had not

mentioned the date of death on the inquest report. However, it was

mentioned in the Case Diary that the deceased victim had died on 11 June,

2014. He deposed that he had not mentioned any cause of delay in the

inquest report. He further deposed that he could not understand the cause

of death of the deceased victim due to which he sent the dead body to the

morgue of S.D. Hospital for post-mortem examination.
PW-13 (Suman Dasgupta) was the Executive Magistrate now attached

to the Durgapur SDO. He deposed that on the day of the incident as per

the requisition of the police he had conducted an inquest over the dead

body of the deceased victim. He had found the dead body in a severely

burnt condition. He could not find any external injuries over the dead

body. He identified his signature on the inquest report. The entire

magisterial inquest report was marked Exhibit-3/1. In cross-examination,

he deposed that he had mentioned in the inquest report that the date of

death of the deceased victim was 11 June, 2014. However, he deposed that

he had not mentioned the cause of delay in holding the inquest over the

dead body.

PW-14 (Tapas Roy) was the Medical Officer attached to the Durgapur

Sub-Divisional Hospital. He had performed the post-mortem examination

over the dead body of the deceased victim. On examination, he found that

the whole body burnt with injuries, eyes clowed, brain congested. He was

of the opinion that the whole body burn injuries ultimately caused cardio-

respiratory failure and resulted in the death of the deceased victim. He

identified his signature in the post-mortem report.

PW-15 (Uttam Kumar Mandal). He was posted with Neturia Police

Station and was a Sub-Inspector. On the instructions of the Officer-in-

Charge of Neturia P.S. he started police case no.40/14 dated 07.06.2017

under Section 498A/326/307/34 of the Indian Penal Code and under

Section 3/4 of the Dowry Prohibition Act. He had filed the formal FIR. He
identified the signature in the said FIR. He had caused the official

investigation and had seized one five litres empty jarikane having the smell

of kerosene, oil match box containing sticks, one polyester saree and one

burnt red blouse in the presence of the witnesses from the place of

occurrence. He had prepared a seizure list in the presence of the witnesses.

He had seized a joint photograph of the deceased victim and her husband

from the matrimonial home of the deceased victim. He had visited the

Vivekananda Hospital where he came to learn that the deceased victim

died on 11 June, 2014. He had also collected the inquest report and post-

mortem report. In cross-examination, he deposed that he had examined

the accused persons and some of the neighbours. He had prepared a

sketch map of the place of occurrence. He had also examined the elder

brother of the de-facto complainant.

PW-16 (B.D Mukherjee) was a Sub-Inspector of Police and at the

relevant point of time was attached to Neturia P.S. He had conducted an

investigation on 7 June, 2014. He had visited the place of occurrence. He

had examined the available witnesses and recorded their statements. He

had arrested the in-laws of the deceased victim. He identified the accused

persons. He had seized one marriage invitation card. He had submitted the

charge sheet against the four accused persons. He had also collected the

FSL report and submitted a supplementary charge sheet. In cross-

examination, he deposed that he had submitted the charge sheet in the
final form. He denied that he had submitted the charge sheet without

investigating the case properly.

10. A cumulative consideration of the evidence particularly of the local

witnesses residing around the place of occurrence conclusively proves that

the deceased victim had come out from her matrimonial home in the

evening of 6 June, 2014 in flames and jumped into the water tank of the

quarter of Tapu Mia where PW-2 was residing. The evidence of PW-2 in this

regard is corroborated by the evidence of PWs-4, 5, 9 and 10. These

witnesses are indisputably the most natural witnesses to the entire

incident.

11. In the instant case, there are admittedly no eye witnesses because

the incident took place inside the four walls of the matrimonial house of

the deceased victim where admittedly the accused persons were residing

and were present at the time of occurrence. It is the evidence of PW-2

which gives a vivid account of the entire incident. The deceased victim

came out of her matrimonial home in flames (where the accused persons

were present) crying for help to get relief and threw herself into the water

tank of a neighbour (PW-2). She ultimately died due to the burn injuries

she had suffered. The local persons who were present there had then

rebuked the accused persons for not coming out from their home and it

was only then that a tempo was arranged which took the deceased victim

to the hospital. The evidence of PW-12 and PW-14 being the Executive

Magistrate and the Autopsy Surgeon clearly corroborates the fact that the
deceased victim had died out of burn injuries corroborating the ocular

version of the other witnesses.

12. It appears from the records that no defence case of accidental burn

was made out or even attempted to be made out. There was only a

suggestion given to prosecution witnesses that the deceased victim had

caught fire at the time of cooking in the kitchen at the matrimonial home. I

am of the view that the cumulative effect of the evidence stated hereinabove

proves beyond reasonable doubt that the accused persons had committed

the offence as they were present at the matrimonial home where the victim

housewife had suffered burn injuries and the accused persons have failed

to explain the circumstances in which she suffered such injuries save

raising an improbable plea of accidental fire which is not borne out from

the evidence on record. On the other hand, PW-1 claimed that the victim

made an oral dying declaration to him that the accused persons had set

her on fire. In the decision reported in Trimukh Maroti Kirkan vs. State

of Maharashtra (2006) 10 SCC 681 the Hon’ble Supreme Court has held

that in invoking the provisions of Section 106 of Evidence Act there is a

corresponding burden upon the inmates of the house to give a cogent

explanation as to how the crime was committed and they cannot get away

by keeping quiet on the premise that the prosecution must discharge its

burden of proving the case. “The principle is that when incriminating

circumstances are put to an accused and the said accused either offers no

explanation or offers an explanation which is found to be untrue then the
same becomes an additional link in the chain of circumstances to make it

complete”.

13. Admittedly, the incident took place in the quarters of the accused

persons and they were the only persons having special knowledge as to

how the victim died. The accused persons were under a legal compulsion to

explain how the victim had died.

14. Upon consideration of the entire evidence, the circumstances of the

instant case which appear to be incontrovertible and indisputable and fully

established are as follows: (a) The deceased victim had caught fire at her

matrimonial home in the evening of 6 June, 2014 (b) All the accused

persons being the husband and in-laws of the deceased victim were

present in the matrimonial home at the time of incident (c) None of the

accused persons made any attempt to extinguish the fire on the victim (d)

The deceased victim came out from the home on fire, screaming for help

and jumped into the water tank of the neighbouring quarters (e) None of

the accused persons followed the deceased victim when she left the

matrimonial home but the local persons brought the deceased victim out of

the water tank (f) It was only on being severely rebuked by the neighbours

that the accused persons had taken the deceased victim to Vivekananda

Hospital, Durgapur (g) Admittedly, the deceased victim remained in the

hospital for three days and ultimately succumbed to injuries (h) The victim

made an oral dying declaration to her father, PW-1, that the accused

persons had set her on fire.

15. I am of the opinion that the only defence of the accused persons that

the deceased victim had caught fire while cooking is an imaginary plea and

has not been substantiated by any evidence of any kind whatsoever.

16. The Trial Court has held that the prosecution had established

beyond reasonable doubt the charges under Section 302 read with Section

34 of the IPC. To justify a charge under Section 302, it is now well settled

that “(i) There must be a death of a human being caused (ii) by or in

consequence of an act of the accused (iii) such act was done (a) with an

intention of causing death (b) that the accused knew likely to cause such

death (c) that the injury was sufficient in the ordinary course of nature to

cause such death”.

17. I am satisfied that the Trial Court has correctly and justifiably held

the accused persons guilty of the charges under Section 302 read with

Section 34 of the IPC. I find no reason to interfere with the impugned

judgment and order. Accordingly, the appeal fails and is dismissed.

18. A copy of the judgment along with the Lower Court Records be sent

back to the Court below at once. A certified copy of this order, if applied

for, be given to the parties on a priority basis upon compliance with all

necessary formalities.

I agree.

(Joymalya Bagchi, J.) (Ravi Krishan Kapur, J.)

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