IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble JUSTICE SANJIB BANERJEE
The Hon’ble JUSTICE SUVRA GHOSH
CRA 383 of 2006
– VERSUS –
The State of West Bengal
For the Appellant: Mr Partha Sarathi Bhattacharyya, Adv.,
Mr Prabir Majumdar, Adv.
For the State: Mr Swapan Banerjee, Adv.,
Mr Suman De, Adv.
Heard on: 08.02.2019 and 13.02.2019.
Date: February 15, 2019.
SUVRA GHOSH, J. :-
The present appeal is directed against the judgment and order passed by
the Learned Additional Sessions Judge, Second Court, Nadia in Sessions Trial
number XIX (VIII) 05/Session Case 86(7) 05 on 12-04-2006. By the said
judgment, the Learned Trial Judge has convicted the appellant for offences
appellant has been sentenced to suffer simple imprisonment for three years and
pay a fine of rupees two thousand, in default to suffer simple imprisonment for
another six months for the offence punishable u/s 498A of the Penal Code and to
suffer imprisonment for life and pay a fine of rupees five thousand, in default to
suffer rigorous imprisonment for a period of six months for the offence
punishable u/s 302 of the Penal Code.
2. The de facto complainant Bijoya Pal lodged a complaint before the
Dhubulia Police Station on 08-12-2004 to the effect that her mother Shobha Pal
was married to her father Makhan Pal for about twenty years and Makhan Pal,
his elder brother and sister inflicted severe physical and mental torture upon
Shobha Pal which was witnessed by the complainant right from her childhood.
Unable to bear such torture, Shobha Pal was constrained to leave her
matrimonial home with the complainant and was brought back thereto by her
husband Makhan Pal. She further contended that on 08-12-2004 at about 11:00
hours, during an altercation between her parents, her father poured kerosene oil
on her mother and set her ablaze. On hearing her hue and cry, the local people
rushed to her house and shifted her mother to Dhubulia hospital and thereafter
to Shaktinagar hospital.
3. After the complaint was registered as Dhubulia Police Station case no.
187/04 dated 08-12-2004 u/s 498A/326/308/34 of the Indian Penal Code, the
investigation was set in motion and after completion of the investigation, a charge
sheet was submitted against all the three accused persons u/s
498A/326/308/302/34 of the Penal Code. It is pertinent to mention here that
the victim succumbed to her injuries, in the meantime, for which the offence u/s
4. Charges were framed against the three accused persons u/s 498A/302 of
the Penal Code and substance of the accusations was read over and explained to
them to which they pleaded not guilty and claimed to be tried.
5. Accordingly, the prosecution examined fifteen witnesses in support of its
case as PW1 to PW15 and documents were marked as Exhibits 1 to 10 on its
6. Upon consideration of the entire material on record as well as arguments
canvassed by learned advocates for the appellant and the State, the learned trial
judge, by the impugned judgment, convicted the appellant as aforesaid. The
Learned Court, however, acquitted accused Ranjit Pal and Jyotsna Pal, having
found them not guilty of the offences alleged.
7. Aggrieved by and dissatisfied with the said judgment and order of sentence,
the appellant has come up before this court in appeal praying for his acquittal. It
is also submitted that he is languishing in jail in terms of the sentence slapped
on him for a period of more than fourteen years.
8. The question for consideration is as to whether in the facts and
circumstances of the case, evidence on record as well as the law on the subject,
the impugned judgment and order are sustainable.
9. Learned Advocate for the appellant has assailed the impugned judgment on
various counts. He has submitted that the impugned judgment is liable to be set
aside for the reason that the learned trial judge has relied upon inadmissible
evidence and has not dealt with the evidence on record in its proper perspective.
Learned advocate had drawn the attention of the court to the dying declaration of
the victim recorded on 09-12-04 by the medical officer at the District Hospital,
Nadia in presence of an executive magistrate, Bharati Dutta (full blood sister of
the victim) and sister on duty Sikha Biswas. According to learned advocate, there
is no endorsement in the said document regarding the physical condition of the
victim or the injuries suffered by her. The bed head ticket also suggests that
morphine injection was administered to the victim before recording her
statement. Bharati Dutta who has been examined as PW9 has referred to the
dying declaration in her evidence. Exhibit 8/1 which contains another statement
of the victim is silent regarding the presence of this witnesses at that time. PW6
Paresh Mitra who is the brother of the victim also referred to a dying declaration
made by the victim in his presence. This witness was not examined by the
investigating officer and according to learned advocate, his evidence cannot be
given much weight.
10. Learned advocate for the appellant has also referred to the evidence of
PW7 Hemanta Mitra who appears to be a brother of the victim. The said witness
claims that the victim stated before him that the appellant and others poured
kerosene on her person and set her ablaze. This witness was also not examined
by the investigating officer.
11. Learned advocate has also referred to the evidence of PW14 Dr. Urmila
Bagchi who recorded the statement of the victim in the medical document
(exhibit 8/1) on 08-12-2004 after the victim was brought to Shaktinagar hospital
from Dhubulia public health centre. This witness stated that her report is silent
regarding the extent of burn injury suffered by the patient, whether the same
appears to be suicidal or homicidal and also whether any member of the patient’s
family was present when her statement was recorded.
12. Learned advocate points out to the inquest report of the victim which
reveals that inquest was held on 12-11-2004 whereas the second page of the
report suggests that she died on 17-12-2004.
13. Learned advocate has tried to impress upon the court that except the
evidence of the complainant (PW1) who is the daughter of the victim, no other
witness has implicated the appellant in the alleged offence. The incident occurred
at the spur of the moment following a hot altercation between the victim and her
husband and there was no premeditation on the part of the appellant to deprive
the victim of her life. Learned advocate has candidly submitted that the evidence
of the complainant has not been shaken in cross examination and the entire case
rests on the version of this sole witness.
14. Learned advocate has prayed for setting aside the impugned judgment and
acquitting the appellant of the charge, more so, as the appellant has already
undergone imprisonment of over fourteen years in compliance with the sentence
thrust upon him.
15. The State has supported the impugned judgment and seeks to stand by it.
Taking the court through the relevant portions of the evidence on record and
placing emphasis on the dying declaration of the victim, the State has submitted
that according to the post-mortem report of the victim, the larynx and trachea
were found to be healthy and, therefore, there was no impediment on the part of
the victim to give her statement before the doctor. Stressing upon the evidence of
the complainant and also the gravity of the offence, the State has prayed for
affirming the judgment and order of the learned Trial Court.
16. At the very outset, it should be stated that the incident occurred on 08-12-
2004 and it was reported to the police station on the same date. Therefore any
kind on concoction, exaggeration or falsehood in the version of the complaint
can, arguably, be ruled out.
17. The complainant has adduced evidence as PW1 wherein she has stated
that on 06-12-2004 there was an altercation between her parents following which
her father poured kerosene on the person of her mother and set her ablaze. Her
mother and she raised an alarm and some neighbours rushed to the rescue of
her mother. They doused the fire by pouring water on her person and took her to
Dhubulia hospital, from where she was transferred to Shaktinagar hospital. She
succumbed to her injuries after spending four days in the hospital. This witness
reported the incident at Dhubulia police station on the same date. She further
averred that she resided at her maternal uncle’s house with her mother from
when she was two years of age and she was brought back along with her mother
by her father about two years prior to the incident. She said she had a brother
who was residing at her maternal uncle’s house where she was also lodged
shortly after the incident. She narrated the entire incident to her uncle
(meshomoshai) Dipak Dutta who drafted the complaint on her dictation. The oil
lamp and match- box which were used to set the victim ablaze were seized from
the house of this witness in her presence and she was a witness to the entire
incident. The incident, according to this witness, occurred in the verandah of
18. The second witness, Dipak Dutta, the scribe of the complaint, claimed to
have reached the place of occurrence after the victim was taken to the hospital.
19. The three witnesses thereafter declined to support the case made out by
the prosecution and were declared hostile by the prosecution.
20. PW-6 Paresh Mitra and PW7 Hemanta Mitra, who are the brothers of the
victim, spoke in tune with the complainant and it was their assertion that the
victim stated before them that it was her husband (the appellant) who poured
kerosene on her and set her ablaze. But these witnesses were not interrogated by
the investigating officer.
21. Dr. Sushil Kumar Das who recorded the statement of the victim on 09-12-
2004 at the female surgical ward at Shaktinagar hospital was examined as PW-8.
According to this doctor, victim Shobha Pal was identified by her sister Bharati
Dutta, who alongwith sister-in-charge Sikha Biswas, were present at the time. He
said that another doctor who certified that the victim was mentally fit to give her
statement was also present and put his signature on the dying declaration.
22. The doctor claimed that he recorded the statement in the words of the
victim and the victim put her left thumb impression on the document.
23. One of the witnesses to the dying declaration, Bharati Dutta, who is a
sister of the victim, was examined as PW-9 and she corroborated the version of
the previous witnesses. Though she was not present at the place of occurrence at
the relevant time, she rushed to the hospital after being informed of the incident.
It was in the hospital that the victim narrated the incident to her. She said that
the victim remained at the hospital for about four days and the police and the
magistrate visited the victim during such period. She stated that when the victim
was driven out of her matrimonial home by the appellant after inflicting torture
upon her, this witness reported the matter to Dhubulia police station following
which a case u/s 498A of the Penal Code was registered. Pursuant to a written
compromise entered into between the victim and her husband, the victim return
to her matrimonial home. This witness was examined by the investigating officer
in connection with the present case.
24. Thakurpada Mondal, Sub-Inspector of Police, who held the inquest in
respect of the dead body of the victim on 12-12-2004 was examined as PW- 10
and the autopsy surgeon Dr. Rathindranath Halder was examined as PW-11.
Narayan Chandra Rakshit, Sub-Inspector of Police, received the complaint from
Bijoya Pal and was examined as PW-12.
25. PW-13 Dr. Samir Choudhary examined the victim at Shaktinagar hospital
on 08-12-2004 and suggested the recording of her dying declaration. Dr. Urmila
Bagchi who also examined the victim and found her to be conscious and co-
operative at the time of examination on 08-12-2004 was examined as PW-14.
26. The last witness for the prosecution (PW 15) is the investigating officer who
conducted the entire investigation of the case and submitted charge sheet
against the appellant and two others upon completion of investigation.
27. The appellant was examined by the Learned Trial Court u/s 313 of the
Code of the Criminal Procedure for the purpose of enabling him to explain the
circumstances implicating him in the alleged incident. In his reply to the
questions put to him, he has denied the fact and has claimed innocence.
28. It is a settled principle of law that the burden of bringing home the charges
against an accused in a criminal case lies solely upon the prosecution and the
prosecution is expected to bring evidence which should be so compact, cogent,
believable and trustworthy as to render it incompatible with the innocence of the
accused. Any position short of this would entitle the accused to earn his
acquittal. Even if the accused keeps mum throughout the trial, the high degree of
responsibility cast upon the prosecution is not relieved in the least. The instant
appeal should be evaluated and considered in such a context.
29. In the instant case, the evidence of the complainant as PW-1 clearly and
unambiguously states that on the relevant date, following an altercation with her
mother (victim Shobha Pal), her father (the appellant) poured kerosene on her
person and set her ablaze. She has withstood the test of cross-examination and
firmly held on to her horrifying experience which was no less than witnessing her
mother being set ablaze by her father. The complainant being a young girl of
about sixteen years and speaking about her parents, it is highly improbable that
she would falsely implicate her father in the alleged incident.
30. The place of occurrence has been stated as the verandah of the house of
the appellant by the witnesses as well as by the victim in her dying declaration
and remains undisputed.
31. It is a fact that besides the brothers and sisters of the victim no
independent witness, including any of the neighbours who came to the rescue of
the victim soon after the incident, has spoken in support of the prosecution case.
But at the same time, it is trite law that the statements of witnesses who are
related to the victim cannot be brushed aside or discarded merely on the ground
of their being related to the victim. Also, the quality and not number of witnesses
is to be taken into consideration by the Court and a conviction based on the sole
testimony of a witness is not unknown to law, provided such testimony is tested
on the touchstone of truth and credibility. In both the cases, such evidence ought
to be supported by other corroborative evidence on record and should be
carefully dealt with while arriving at a decision. The Court should also not lose
sight of the fact that it is the general trend of the members of the public including
neighbours in the present day not to intervene or interfere in the lives of others
unless they are requested or compelled to do so. It is not unlikely that the
neighbours preferred to remain out of the rigours of investigation or, for that
matter, the hazards of a criminal case and therefore refrained from participating
in the investigation.
32. Turning to the dying declaration of the victim recorded on 09-12-2004, it
appears that the doctor certified the patient to be mentally alert to give such
declaration. Such declaration was recorded by the doctor in presence of Bharati
Dutta, Sikha Biswas and the Executive Magistrate as appears from the document
itself. Learned advocate for the appellant has pointed out that it appears from the
bed-head ticket that morphine injection was administered to the victim before
recording her statement and the statement is also silent regarding the physical
condition or injuries sustained by the victim. It is to be borne in mind that when
such a statement is voluntarily given by the patient in the presence of witnesses
as required under the law and the patient is declared to be fit and capable of
making such statement, no further proof of genuineness of the same is required
in law, particularly when such statement finds corroboration in the evidence of
the witnesses. The doctors being independent and disinterested witnesses,
ordinarily, their version cannot be said to be tainted with or influenced by
anything but truth. Also, a person with 90% burn injuries, who is aware that in
all probability, her journey of life has almost come to a halt, shall seldom speak
anything but the bare truth.
33. The said statement (dying declaration) coupled with the evidence of the
complainant unmistakably points the finger of accusation towards the appellant
and none else. It is therefore crystal clear that on the relevant date, that is, on
08-12-2004, the appellant poured kerosene oil on the victim in the verandah of
his house and set her ablaze. The victim was taken to Dhubulia hospital and
thereafter transferred to Shaktinagar hospital where she succumbed to her
injuries after four days. The evidence on record is sufficiently strong and
convincing to lead to the conclusion regarding the guilt of the appellant and does
not leave any reasonable ground for conclusion consistent with the innocence of
the appellant. It can therefore be held that the Learned Trial Court has rightly
convicted the appellant for the offence punishable u/s 302 of the Penal Code.
34. However, with regard to the conviction u/s 498A of the Penal Code, the
record lacks convincing evidence. The entire thrust of the allegation has been
directed against the appellant u/s 302 of the Penal Code and in the process, the
charge u/s 498A of the Penal Code has been lost sight of. Though the brothers
and sister of the victim have tried to make out a case of torture inflicted upon the
victim by the appellant resulting in her being compelled to leave her matrimonial
home with her two-year-old daughter, such evidence has not found corroboration
in any of the documents on record. A case u/s 125 of the Code of the Criminal
Procedure has been mentioned by the witnesses, but no such document has been
35. The essential ingredients of cruelty in an offence u/s 498A of the Penal
Code are as follows:-
“(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.”
36. In the instant case, there is not an iota of evidence on record which
suggests that any such act of cruelty was meted out to the victim by the
appellant. A stray incident, if any, of assault, or altercation or any kind of
domestic dispute does not constitute an offence u/s 498A of the Penal Code.
37. In the premises, the appellant is found not guilty of the offence punishable
38. Last but not the least; it is a fact that there are certain minor discrepancies
and contradictions in the evidence of the witnesses regarding the date of the
incident, the date of death of the victim and the date of the inquest report. But it
is needless to state that the evidence on record should be construed as a whole
and minor contradictions and discrepancies therein which do not affect the
merits of the case should be ignored. In the present case, the discrepancies found
in the evidence on record are too minor to be taken into account and cannot be
said to have weakened the prosecution case which, otherwise, has been proved to
39. Upon consideration of the entire facts and circumstances of the case as
well as the material on record, I have no impediment to hold that the Learned
of the Penal Code and this part of the impugned judgment does not call for any
40. Accordingly, CRA 383 of 2006 is allowed in part.
41. The portion of the impugned judgment convicting the appellant for offence
punishable u/s 302 of the Penal Code and sentencing him to suffer
imprisonment for life and pay a fine of rupees five thousand, in default, to suffer
rigorous imprisonment for another six months, is hereby affirmed.
42. The portion of the impugned judgment convicting the appellant for offence
punishable u/s 498A of the Penal Code and sentencing him to suffer simple
imprisonment for three years and to pay fine of rupees two thousand, in default,
to suffer simple imprisonment for another six months, is hereby set aside.
43. A copy of judgment along with the lower court records be sent to the Trial
Court at once.
44. Urgent certified photocopies of this judgment, if applied for, be supplied to
the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J.)
(Sanjib Banerjee, J.)