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Makhan Pal vs The State Of West Bengal on 15 February, 2019

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

The Hon’ble JUSTICE SANJIB BANERJEE
And
The Hon’ble JUSTICE SUVRA GHOSH

CRA 383 of 2006

Makhan Pal

– 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. :-
1.

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

punishable u/s 498A of the Penal Code and section 302 of the Penal Code. The

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

302 of the Penal Code was also attracted.

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

side.

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

their house.

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

filed.

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

u/s 498A of the Penal Code and is acquitted of the said charge.

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

the hilt.

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

Trial Court has rightly convicted the appellant for the offence punishable u/s 302

of the Penal Code and this part of the impugned judgment does not call for any

interference.

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.)

I agree

(Sanjib Banerjee, J.)

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