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Pear Sk. & Anr vs The State Of West Bengal on 1 August, 2019

IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:

The Hon’ble Justice Md. Mumtaz Khan

The Hon’ble Justice Jay Sengupta

CRA 174 of 2009

Pear Sk. Anr.

Vs.

The State of West Bengal

For the appellants : Md. Asraf Ali
Ms. Sabnam Laskar

For the State : Mr. Ranabir Roy Chowdhury,
Mr. Mainak Gupta

Heard finally on : 20.06.2019
Judgment on : 01.08.2019.

Md. Mumtaz Khan, J. :

This appeal has been preferred by the appellants assailing the

judgment, order of conviction and sentence dated February 9, 2009 and

February 10, 2009 respectively passed by the learned Additional District

and Sessions Judge, Fast Track II Court, Rampurhat in Sessions Trial

No. 22 of 2009 arising out of Sessions Case No. 15 of 2003 whereby

appellants were convicted for the commission of the offence punishable
2

under Sections 302/ Section34 of the Indian Penal Code (hereinafter in short

referred to as the SectionIPC)and were sentenced to suffer imprisonment for life

and also to pay fine of Rs. 5,000/- each in default to suffer imprisonment

for one year more with a direction for set off in terms of provisions of

Section 428 of the Code of Criminal Procedure (hereinafter referred to as

Cr. P.C.). They were acquitted from the charge for the offence punishable

under Section 498 A IPC.

The prosecution case, in brief, is as follows:

On August 1, 1999 at about 21.30 hrs, PW 1, step-father of the

victim, lodged a written complaint at the Rampurhat Police Station to the

effect that his daughter (victim) was given in marriage with the appellant

No. 1 about seven and half years ago and of their wedlock two children

were born. On July 30, 1999 at about 09.00 hrs victim’s

husband(appellant no.1) and mother-in-law(appellant no.2) assaulted the

victim severely and thereafter, appellant No.2, Fulkara Bibi, sprinkled

kerosene oil on the person of his daughter and appellant No. 1, Pear Sk.

with match stick set her on fire. Thereafter villagers came running and

admitted her in the hospital. It was also informed that the appellant No.

1 was admitted at the Rampurhat Sub Divisional Hospital for his

injuries. He then informed the Magistrate who came to the Hospital and

recorded the statement of victim. Thereafter, his daughter during her

treatment at the Hospital succumbed to her injuries on August 1, 1999.
3

On the basis of the above written complaint, Rampurhat Police

Station Case No. 92 dated August 1, 1999 was started against the

appellants under Sections 307/ Section302/Section34 IPC and the case was endorsed

to PW 10 for investigation who investigated the same. Thereafter, case

was investigated by PW13, PW9 and finally by PW12 who then after

completion of investigation submitted charge sheet against the

appellants.

On August 2, 1999, PW10 held inquest over the dead body of

the victim at the Rampurhat Hospital Police Morgue in presence of PW 1,

PW3, PW17 and one Abdul Latib and prepared a report (Ex. 2/A). During

inquest he found skin of the deceased from the face to feet and also the

skin on the backside from below the hair of the head to the heel were

burnt and save and except burn injuries he did not find any such mark

of other injury. During inquest the names of the appellants surfaced to

be the persons who set fire to the victim after pouring kerosene oil.

On the same date, PW 4 conducted postmortem examination over

the dead body of the victim and found superficial burn extending from

head to heal excepting behind both knee joints, blackening, charring of

skin with few blister formation seen at places. On puncturing the blisters

the underlying tissues were seen reddened. Red lines were seen between

healthy and burnt areas, hairs were singed, tracheal soots were present.

Cherry red colour blood was seen on dissecting vessels. No external
4

injury was seen except burn injury. According to the doctor, the cause of

death was due to extreme shock from aforesaid burn injuries which was

ante mortem and might be accidental in nature. After the postmortem

examination P.W.4 prepared a report (Ex. 5).

On March 11, 2004, charges under Sections 498A/ Section302 read with

Section 34 of the IPC were framed against the appellants and on their

pleading not guilty to the charges, trial commenced.

Prosecution in order to prove the case, examined 13 witnesses and

also produced and proved the written complaint, formal FIR, inquest

report, postmortem report, rough sketch map with index, seizure list,

admission ticket, bed-head ticket, dying declarations etc. and thereafter

on completion of trial and after examination of the appellants under

Sectionsection 313 Cr.P.C. learned trial judge passed the impugned judgment.

Mr. Asraf Ali, learned Advocate appearing for the appellants, submitted

that the impugned judgment, order of conviction and sentence are not

sustainable in law due to delay in lodging the FIR, non examination of

the charge-sheet witnesses Soma Let and Razia Bibi who got the victim

admitted in the hospital, the Staff Nurse and Dr. K.K. Mondal reported to

be witnesses for the dying declaration, fire brigade personnel or villagers,

absence of any definite opinion of the Autopsy Surgeon with regard to the

cause of death, doubt with regard to the recording of dying declarations

recorded either by the doctor or by the Executive Magistrate as the same
5

do not figure in the inquest report though prepared in presence of PW1

amongst other. According to Mr. Asraf Ali, prosecution has failed to

prove the charge of murder against the appellants beyond any shadow of

doubt.

Mr. Ranabir Roy Chowdhury, learned Advocate appearing for the State

submitted that the delay in sending the FIR will not make the entire case

of the prosecution doubtful and furthermore, no such point was raised to

the Investigating Officer during trial. He admitted that the dying

declaration (Ex. 9) was recorded in the bed-head ticket and the doctor

who gave certificate as to mental fitness of the victim was not examined

but due to the same dying declaration can not become unacceptable as

the doctor who attended the victim recorded the first dying declaration in

the bed head ticket was duly examined as P.W.11 and he himself found

the victim mentally fit to make dying declaration. He also submitted that

the dying declaration recorded by Magistrate was proved by the

Magistrate (PW8) himself and the same was corroborated by PW5, mother

of the victim and there is no evidence on record that either the doctor or

the Magistrate had any such animosity to implicate the appellants. He

further submitted that though the step father of the victim and the FIR

maker as also the biological father of the victim turned hostile but that

will not render the prosecution case doubtful. He also submitted that the

appellants during their examinations under Section 313 Cr. P.C. save
6

and except taking the plea of innocence did not explain how the victim

sustained burn injuries on her person. According to Mr. Roy Chowdhury,

prosecution has been able to prove the charge of murder against the

appellants beyond all reasonable doubts and the learned Trial Judge was

quite justified in passing the impugned judgment.

Mr. Roy Chowdhury relied the decision of Ravi Chander and others

Vs. State of Punjab reported in 1998 (9) SCC 303 and of Laxman Vs. State

of Maharashtra reported in 2002 SCC (Cri) 1491 in support of his

submissions.

We have considered the submissions of the learned Advocates

appearing for the respective parties and have gone through the evidence

and the documents on record to consider the propriety of the impugned

judgment.

It is not in dispute rather admitted position that the death of the

victim was unnatural and she died at Rampurhat Sub-Divisional

Hospital due to burn injuries. PW4 the Autopsy Surgeon during

postmortem examination also found superficial burn extending from

head to feet excepting behind both knee joint, blackening, scarring of

skin with few blister formation seen at places and on puncturing the

blisters the underlying tissues seen redden and accordingly opined that

the cause of death was due to extreme shock from the aforesaid burn

injuries which were ante mortem and might be accidental in nature.
7

PW1 is the step father of the victim and FIR maker. He has simply

deposed that on 30.07. 1999, victim was hospitalized and she died on

August 1, 1999 at about 3.00 p.m. due to burn injuries. He heard victim

made statement to the Magistrate but cannot say what she has stated to

the Magistrate. He identified the written complaint (Ex.1) lodged by him.

He also identified his signature (Ex. 2) on the inquest report. He also

identified his signature (Ex. 3) on the statement of the victim. He was

declared hostile by the prosecution as he did not support the prosecution

case.

PW 2 is the Home Guard who took the dead body of the victim at

the Rampurhat Sub Divisional Hospital Morgue for post mortem

examination.

PW 3 is the witness to the inquest. According to him he heard that

victim got burn injuries and died. He was also declared hostile by the

prosecution as he did not support the prosecution case and was cross-

examined by the prosecution and was challenged that during

investigation he stated to the investigating officer that he came know

from Soleman Sk. (P.W.1) that on the date of incident the husband and

mother-in-law of Sohar Banu (victim) assaulted her and set her on fire

after sprinkling kerosene oil which he denied but from the evidence of

P.W.9 it appears that he stated all these to him during investigation.
8

PW 4 is the autopsy surgeon who conducted postmortem

examination over the dead body to the victim.

PW 5 is the mother of the victim and presently wife of PW 1.

Previously she was married with P.W.6, brother of PW1. Victim was

borne of wed-lock of P.W.5 and Bhuluk Sk (P.W.6), brother of PW1. She

has deposed that mother in law of the victim (appellant No.2) sprinkled

kerosene oil on the person of the victim and her husband Pear Sk.

(appellant No.1) set her on fire resulting in her death. Victim made

statement before the Magistrate in her presence in the hospital and told

that her mother-in-law sprinkled kerosene oil on her body and her

husband set her on fire and after recording of the statement both she

and the victim put their LTI thereon. During cross examination by the

defence she clearly stated that on getting information of burning of the

victim they went to the hospital and she was all along with the victim in

the hospital till her death. She also went to the police station and

narrated the incident. She admitted that appellant No. 1 also got burn

injury and was treated in that hospital but under police guard.

PW6 is the biological father of the victim. He was declared hostile

by the prosecution as did not support the prosecution case though

during cross examination by the prosecution admitted that he stated to

the police that on being informed about the incident of burning he along

with PW 1 and PW5 went to Rampurhat Sub-Divisional Hospital and
9

found the victim with burn injuries. He also admitted that he stated to

the Police that on the date of incident an altercation took place between

the victim and her husband and at that time mother-in-law of the victim

sprinkled kerosene oil on the victim and her husband set her on fire and

that victim also stated this to the Magistrate, which he came to know

from PW5 and PW1 who were present at the time of making statement by

the victim.

P.W.7 is also a witness to the inquest. According to him, he came

to know from the mother of the victim that appellant No.2 sprinkled

kerosene oil on the victim and appellant no. 1 set her on fire and victim

made statement before Magistrate. During cross examination he deposed

that PW 1 informed him about the incident at about 12.00 noon over

telephone and he found mother of the victim sitting beside the victim in

the Hospital and PW 1 was also present in the hospital on that date. He

had talk with the victim and at that time no doctor or Nurse was present.

PW 8 is the executive Magistrate who recorded the dying

declaration of the victim in the Hospital. According to him, on July 30,

1999 in between 04.00 p.m. to 4.35 p.m. he recorded the dying

declaration of the victim in the Hospital. Patient was identified by the

Staff Nurse Jharna Mondal and Dr. K.K. Mondal of that Hospital certified

that the patient was conscious and fit to give dying declaration. He

identified the signature and endorsement of Dr. K.K. Mondal (Ex. 3/1).
10

He also deposed that he also found that patient was capable enough and

fit to make her statements. On his query victim told that quarrel took

place with her husband leading to a dispute of going of her son to school,

then at that time her mother-in-law poured kerosene oil on her body and

her husband set fire on her body. After recording of the statement,

victim put her thumb impression in his presence and it was identified by

the pen of PW 1 in his presence. At the time of recording of dying

declaration mother of the victim (PW5) was present and she stated that

her son-in-law usually perpetrated torture and assault on her daughter

and that he married another woman. He also recorded her statement and

she put her LTI which was attested by PW1 who was also present at the

time of making of dying declaration. He identified the signature of PW1

(Ex.3/2) on the statement. He identified the dying declaration recorded

by him (Ex. 3/3). During cross examination he clearly stated that on his

arrival at the room of the Hospital where the victim was admitted he

found Dr. K.K. Mondal and Staff Nurse Jharna Mondal in the room and

except them no other staff of the Hospital was present. He did not agree

to the defence suggestion that the victim was not in a sound state of

mind to make any statement and the statement in question was not

made by the victim.

P.W.9, P.W.10, P.W.12 and P.W.13 are the investigating officers

of this case. P.W.13, the officer-in-charge of Rampurhat P.S., after
11

drawing up the FIR entrusted the case to P.W.10 for investigation who

then investigated the case since 1.8.99 to 17.45 hrs. of 2.8.99.

Thereafter, P.W.13 as per order of Circle Inspector of police Rampurhat

took up investigation of the case. P.W.13 then investigated the case and

thereafter, on account of his transfer he made over Case Diary to P.W.9

for investigation. P.W.9 then investigated the case and on his transfer he

made over case to P.W.12. P.W.12 then investigated the case and after

completion of investigation submitted charge-sheet against the

appellants.

PW 11 is the Medical Officer of Rampurhat Sub Divisional Hospital

who provided treatment to the victim and recorded her statement with

regard to sustaining of her burn injuries.

Admittedly, none of the witnesses examined by the prosecution are

the witness to the occurrence and the entire case of the prosecution is

based on the dying declaration of the victim, one recorded by the

attending doctor (P.W.11) in the morning on the day of her admission in

the hospital on July 30, 1999 and the other one by an Executive

Magistrate (P.W.8) also on the same date in between 04.00 p.m. to 4.35

p.m.

With regard to the dying declaration, it is well-settled that

importance of a dying declaration is that such declaration is made in

extremity when the party is at the point of death and when every hope of
12

this world is gone and every motive to falsehood is silenced and such

declaration was made in a fit state of mind and was not as a result of

either tutoring or prompting or a product of imagination. Reference may

be made to the decision of a Constitution Bench in the matter of SectionLaxman

vs. State of Maharashtra, reported in (2002) 6 SCC 710.

It is now well settled proposition of law that that conviction can be

recorded on the basis of a dying declaration alone, if the same is wholly

reliable. It is also well known that in a case where inconsistencies in the

dying declarations, in relation to the active role played by one or the

other accused persons, exist, the court shall lean more towards the first

dying declaration than the second one. Reference may be made to the

decision of SectionRanjit Singh Ors. vs. State of Punjab, reported in (2006) 13

SCC 130.

In the case at hand, we find from the evidence on record that the

victim was admitted in the Rampurhat Sub-Divisional Hospital on July

30, 1999 for burn injuries on her person and she ultimately succumbed

to her injuries on 1st August, 1999. P.W.11, the Medical Officer of

Rampurhat Sub Divisional Hospital, has specifically deposed that the

victim Sahar Banu Bibi was admitted in the female surgical ward of

Rampur SD Hospital on July 30, 1999 for her burn injuries on her

person and she was under his treatment from July 30, 1999 to July 31,

1999. He has also deposed that victim stated before him that as a result
13

of quarrel her mother-in-law poured kerosene oil on her body and her

husband put fire on her body at their residence on that date at about

7.30 a.m. and he noted that statements on the treatment sheet and also

wrote about the treatment given to the patient on the bed head ticket

(Ext.9) as attending physician. He admitted during cross that he has not

noted the pulse rate or the blood pressure of the victim or the percentage

of burn injuries on the bed head ticket but clearly stated that he gave

medical treatment to the victim on the basis of his experience and

observation with open eyes only. He did not agree to the defence

suggestion that the patient was not capable of making any statement

before him nor she made any statement to him.

We also find from the evidence on record that mother of the victim

(P.W.5) has also made claim of making dying declaration by the victim to

the Magistrate in her presence in the hospital. PW 8,the then Deputy

Magistrate and Collector of Rampurhat, has deposed that on July 30,

1999 in between 04.00 p.m. to 4.35 p.m. he recorded the dying

declaration of the victim as per the order of the Sub Divisional Officer as

well as requisition from the Police Station. The patient was identified by

the Staff Nurse Jharna Mondal and he recorded the statement in that

Hospital and Dr. K.K. Mondal of that Hospital certified that the patient

was conscious and fit to give dying declaration. He identified the

signature and endorsement of that doctor (Ex. 3/1). He further deposed
14

that he also found that patient was capable enough and fit to make her

statements. On his query victim Sahar Banu deposed that a quarrel was

taken place with her husband over a dispute of going of her son to

school, then at that time her mother-in-law poured kerosene oil on her

body and her husband set fire on her body. After recording the

statement, victim put her thumb impression in his presence and it was

identified by the pen of PW 1 in his presence. He also deposed that at the

time of recording of dying declaration mother of the victim (PW5) was

present and she stated that her son-in-law usually perpetrated torture

and assault on her daughter and he married another woman. He also

recorded her statement and she put her LTI which was attested by PW1

who was also present at the time of making of dying declaration. He

identified the signature of PW1 (Ex.3/2) on the statement. He identified

the dying declaration (Ex. 3/3) stating that it was recorded by him in his

handwriting and signature. During cross- examination he stated that on

his arrival at the room of the Hospital where the victim was admitted he

found Dr. K.K. Mondal and Staff Nurse Jharna Mondal in the room and

except them no other staff of the Hospital was present. He did not agree

to the defence suggestion that the victim was not in a sound state of

mind and physical condition to make any statement and that the said

statement was not made by the victim.

15

The above statement of P.W.8 also finds corroboration from the

mother of the victim (P.W.5). P.W.5 too has deposed that mother-in-law

of the victim (Appellant no.2) sprinkled kerosene oil on the body of her

daughter and her husband (Appellant no. 1) set her on fire and she died

in Rampur Hospital. Her daughter made statement to the Magistrate in

her presence and told that her mother-in-law has sprinkled kerosene oil

on her body and her husband set her fire and after recording of such

statement of the victim both she and victim put their LTI on the same.

During cross she admitted that she got information of the burning of her

daughter at her residence in presence of her husband (P.W.1) and her

children. They then went to the hospital and thereafter went to the P.S.

where she narrated the incident and her husband was also examined by

police and then police told that that the statement of the victim would be

recorded. They then went to the court of SDO and narrated the incident

to him. She also clearly stated that she was all along with the victim till

her death in the hospital. Interestingly she was not challenged by the

defence that she was not present at the hospital at the time of recording

of the statement of the victim nor the victim made any statement to the

Magistrate (P.W.8) in her presence. She was also not challenged by the

defence that the victim was not in a position to talk or to make any

statement. P.W.1, step-father of the victim and the FIR maker who was

subsequently declared hostile by the prosecution has deposed that on
16

30.07. 1999 victim was hospitalized and she died on August 1, 1999 at

about 3.00 p.m. due to burn injuries. He heard victim made statement to

the Magistrate but could not say what she has stated to the Magistrate.

He identified his signature (Ex. 3) on the statement of the victim. He was

declared hostile by the prosecution as he did not support the prosecution

case. Interestingly no suggestion was put to him from the side of the

defence that the victim did not make any statement in his presence nor

he signed on the statement of the victim. Even no suggestion was put to

him that the victim was not in a position to make any statement and/or

that no such statement of the victim was recorded by the Magistrate in

his presence.

Under the circumstances, there appears no reason why the

statement of P.W.8, the Executive Magistrate, shall not be believed.

Furthermore, Executive Magistrate is a disinterested witness and there is

no material on record to suspect that he has animus against the

appellants or was in any way interested in fabricating the dying

declaration. The dying declaration recorded by the Executive Magistrate

(Ext.3/3) tallies with the dying declaration recorded by the doctor on the

Bed-Head Ticket (Ext.9). Even nothing was brought out on record to

suspect that the doctor had animus against the appellants. It is well

settled that a dying declaration can be oral or in writing and if recorded

in writing there is no specified statutory form for such recording. So, the
17

statement/dying declaration of the victim recorded by the attending

doctor even on the bed-head ticket can be acceptable.

It is true that the inquest report is silent with regard to

recording of any dying declaration but we do not find any merit in the

submissions of the learned Advocate for the appellants that for such

omission the very existence of dying declarations be doubted. The basic

purpose of holding an inquest is to report regarding the apparent cause

of death, namely, whether it is suicidal, homicidal, accidental or by some

machinery etc. The section does not contemplate that the manner in

which the incident took place or the evidences on which the prosecution

will rely should figure in the inquest report.

Regarding non-examination of charge-sheet witnesses Soma Let

and Razia Bibi who got the victim admitted in the hospital or the Staff

Nurse in whose presence dying declaration was recorded by the

Magistrate and Dr. K.K. Mondal who gave the certificate (Ext.3/1) with

regard to patient’s mental fitness to make dying declaration, we find from

the evidence of P.W.11, the attending doctor, that he on finding the

patient conscious and fit recorded her statements. On being challenged

by the defence that the patient was not capable of making any statement

before him nor she made any statement to him, he did not agree. P.W.8,

the Executive Magistrate also specifically deposed that he too found that

patient was capable enough and fit to make her statements. Nothing was
18

brought out on record to suspect that the doctor (P.W.11) or the

Executive Magistrate (P.W.8) had any animus against the appellants. In

such circumstances, non examination of the above witnesses can not

render the dying declarations unacceptable. Similarly, non-examination

of fire brigade personnel or any villagers will not make the prosecution

case doubtful as the case of the prosecution is based on dying

declaration of the victim and for that matter above witnesses have no role

to play. Furthermore, even we accept that the house of the appellants

also got burnt due to fire and the appellant no.1 too had to be

hospitalized due to burn injuries but there is nothing on record to

suggest that the victim had any role to play for such fire or the house

caught fire by other means. Even the appellants did not take any such

defence during trial or their examination under Section 313 Cr.P.C. save

and except taking the plea of innocence. They did not even adduce any

defence witness.

Therefore, the impugned judgment does not require our

interference on the above grounds.

Regarding the submission that there was delay in lodging the FIR,

we find from the record that incident of burning took place on July

30,1999 at the matrimonial home of the victim within the jurisdiction of

Rampurhat P.S. The FIR maker (P.W.1) is the resident under the

jurisdiction of Moregram P.S. On getting the news of the incident mother
19

of the victim (P.W.5) and her step-father (P.W.1) came rushing to the

hospital where the victim was hospitalized and thereafter went to the P.S.

and also took initiative so that the victim’s dying declaration was

recorded. It has come out from the evidence that they regularly visited

the hospital as the condition of the victim was very serious and

ultimately victim succumbed to her injuries. So, considering the serious

condition of the victim it was expected that they were very much anxious

and might have remained busy for her treatment and when the very hope

of survival of the victim was lost they approached the P.S. Moreover,

according to the settled principle of law mere delay in lodging FIR will not

necessarily be fatal to the case of the prosecution. After, taking into

account the facts and circumstances of this case in the light of the

totality of evidences on record we are of the opinion that the delay as

pointed out was not fatal to the prosecution case.

Therefore, our interference with the impugned judgment is not

required on the above ground.

Therefore, taking into consideration the facts and circumstances

on the basis of which the impugned judgment is passed, we are of the

opinion that the impugned judgment does not require our interference on

the above grounds in view of the settled propositions of law as discussed

herein above.

20

We, therefore, dismiss the appeal and affirm the conviction and

sentence imposed on the appellants.

A copy of this judgment along with the Lower Court Records may

be sent down to the learned Trial Court forthwith.

Urgent photostat certified copy of this judgement, if applied for, be

given to the parties, as expeditiously as possible, upon compliance with

the necessary formalities in this regard.

I agree (Md. Mumtaz Khan, J.)

(Jay Sengupta, J.)

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