Ganesh Mali vs The State Of West Bengal
2022 Latest Caselaw 5222 Cal

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                     IN THE HIGH COURT AT CALCUTTA

                      (Criminal Appellate Jurisdiction)

                               Appellate Side



Present:

The Hon'ble Justice Debangsu Basak

            And

The Hon'ble Justice Bibhas Ranjan De


                             C.R.A 370 of 2010
                                Ganesh Mali
                                     Vs
                         The State of West Bengal
For the appellants      :Mr. Aniruddha Bhattacharyya, Advocate


For the State             :Mr. Sanjay Bardhan, Advocate
                          Mr. Arani Bhattacharyya, Advocate


Heard on                   : July 18, 2022
Judgment on                : August 10, 2022


Bibhas Ranjan De, J.:-

   1. Under challenge in the present appeals is the judgment and

      order of 30th day of April, 2010 passed by Learned Sessions

      Judge, Dakshin Dinajpur at Balurghat in Sessions Trial No.

      81 of 2007 arising out of Hili PS Case No. 54/2007 dated

      07.04.2007 under Section 498-A/302 of the Indian Penal
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  Code (for short IPC) whereby, appellant was convicted under

  Section 498-A/302 of the IPC and was sentenced to rigorous

  imprisonment for two (2) years and fine of Rs. 1000/-

  (Rupees one thousand) only with default stipulation of

  additional rigorous imprisonment for three (3) months for

  the offence punishable under Section 498-A IPC and also

  sentenced to rigorous imprisonment for life and to a pay a

  fine of Rs. 5,000/- (Rupees five thousand) failing which

  directed to suffer further rigorous imprisonment for 6 (six)

  months for the offence punishable under Section 302 IPC.

  Facts

and evidence

2. The case of the prosecution, as unfolded from the First

Information Report dated 07.04.2007 arising out of Hili PS

Case No. 54/2007 under Section 498-A /302 IPC, is that

the informant Alok Mali son of late Rabin Mali gave an

application in the Hili Police Station on 07.04.2007 that his

sister Namita Mali daughter of Rabin Mali was married to

Ganesh Mali, appellant of this case, in the year 2003. Her

husband (appellant) suspected her wife (deceased) and used

to beat her. On 05.04.2007 at about 12.00 in the night

appellant beat her wife and set her ablaze after pouring

kerosene oil. Appellant tried to shift the body of his sister

with the help of a wrapper. Neighbours' saw the incident

and made noise and rushed to the spot and shifted his

sister to Balurghat Sadar Hospital and informed the

complainant on 06.04.2007 at 09.00 p.m. his sister died

living behind her daughter aged about 2 (two) years.

3. On receipt of the aforementioned written complaint Hili PS

Case No. 54/2007 under Section 498-A/302 IPC was

started and S.I Kenneth Foning was endorsed the case for

investigation. During investigation he visited P.O prepared

rough sketch map with index (exhibit- 11). He seized some

burnt pieces of cloths, one thin partially burnt mattress and

one brown colour bottle with smell of kerosene under a

seizure list 4/1. He examined and recorded the statement of

available witnesses under Section 161 of the Criminal

Procedure Code (for short Cr.P.C) and arrested the accused.

On his prayer statements of Manju Mali, Renuka Mali and

Subodh Mali were recorded under Section 164 of the Cr.P.C.

He collected bed- head tickets. Thereafter, on completion of

investigation he submitted charge sheet under Section 498-

A/302 of the IPC.

4. The case was committed to the Court of Sessions, Dakshin

Dinajpur at Balurghat, for trial. Learned Sessions Judge,

himself took up the case for trial and framed charges under

Section 498-A/302 IPC against the accused Ganesh Mali in

Sessions Trial No. 81 of 2007, to which accused Ganesh

Mali pleaded not guilty and claimed to be tried.

5. In order to prove its case the prosecution had testified PW-1

the informant, PW-2 Supad @ Subodh Mali neighbour of

PW-1, PW-3 Sakina Bibi another neighbor of the informant,

PW-4 Lata Das, first wife of the appellant, PW-5, Basudeb

Nath, Executive Magistrate who conducted inquest over the

dead body of Namita Mali (deceased), PW-6 Khagen Mali,

neighbor of Namita Mali (deceased), PW-7, Renubala Mali,

another neighbour of Namita Mali (deceased), PW-8 Manju

Mali, another neighbour of Namita Mali (deceased), PW-9

Pradip Bhowmik, home guard no. 1473 who carried the

dead body to morgue after inquest and he deposited two

polas, Two churies, one nose pin of the deceased two

Assistant Sub Inspector Ainul Hq. who seized all those

articles under a seizure list, (exhibit 5/1), PW-10 ASI Ainul

Hq. who investigated the Balurghat Police Station Case UD

No. 117/2007. He also prepared inquest report (exhibit 3/1)

PW-11 Basanti Mali, neighbor of Namita Mali (deceased),

PW-12 Anukul Mali, brother of deceased, PW-13 doctor

Ritesh Chakraborty who conducted Post mortem (exhibit-6)

over the dead body of Namita Mali, PW-14 Tarun

Chakraborty, ward master attached to Balurghat Sadar

Hospital, who proved bed-head tickets of Namita Mali

(exhibit-7), PW-15 doctor Amitava Banerjee who was

Medical Officer surgeon attached to P.L. Jaiswal Hospital,

Howrah, who examined Namita Mali and he prepared report

(exhibit-8) thereon. PW-16 S.I Santanu Maitra, who put

formal FIR (exhibit-9), PW-17 Kenneth Foning who

investigated this case and submitted charge sheet and PW-

18 Melissa Gurung, Civil Judge (Junior Division) who

proved statements recorded under Section 164 of the Cr.P.C

(exhibit-10/1 & 12). During evidence a good number of

documents were admitted in evidence as exhibit 1 to 12 and

material exhibit A to C on behalf of the prosecution. On

behalf of the accused one witness namely Dr. Manatosh

Sutradhar was examined as DW-1. On behalf of the accused

one prescription and medical reports were admitted in

evidence as exhibit A to C.

6. In his examination under Section 313 Cr.P.C. the appellant

Ganesh Mali had denied the charges against him and

alleged that he is being falsely implicated. It is further

alleged that he would love Namita Mali and she set herself

on fire while cooking. It is further alleged that he took her to

hospital for treatment but Khagen and other restrained him

and informed two relatives of Tuntuni. It is further alleged

that he tried to take her wife for treatment he sustained

burn injury on his hand and legs.

Argument Advanced

7. Mr. Aniruddha Bhattacharyya, Learned Counsel for the

appellant submits as under:

 From the evidence of PW-10 it appears that none

of the family members present at the time of

inquest supported the incident of murder. From

the statement of witnesses it appears that death

was caused by fire set by Namita Mali herself

due to quarrel.

 PW-1 stated in his examination in chief that on

way to hospital victim disclosed that appellant

had set on fire but in cross-examination PW-1

stated that sister of the victim had told the fact

to him.

 PW-2 was a signatory to the inquest report but

he did not stated that Namita (victim) told him

that she was set on fire by the appellant, rather

PW-10 and PW-5 stated that at the time of

inquest witnesses present there told about an

incident of suicide.

 Evidence of PW-5 and PW-10 clearly show that

victim committed suicide.

 From the evidence of PW-7 and PW-8 it appears

that appellant tried to rescue his wife and also

tried to make arrangement for treatment and

appellant did not flee away from the spot.

 Evidence of PW-12 has not been supported by

that of PW-1 regarding the attempt by the

appellant to flee away from the place.

 PW-12 stated about the dying declaration given

by the deceased implicating the appellant who

set her ablaze. PW-12 disclosed the same to PW-

1 and PW-2 but they have not supported the

evidence of disclosure. Moreover, investigating

Officer PW-17 stated in his evidence that PW-12

never stated about any statement disclosed by

the deceased to him.

 Investigating Officer did not seize the articles

accordingly to procedure prescribed therefor.

From the evidence of PW-17 as well as evidence

of DW-1 it is clear that appellant also sustained

burn injury who tried to rescue his wife and

such injuries sustained by the appellant has not

been explained in its true perspective by the

prosecution.

 Learned Trial Judge convicted the appellant only

on the cryptic dying declaration alleged to have

been made before the doctor (PW-15) who did not

certify the fit state of mind of the deceased at the

time of giving dying declaration. In support of his

contention he has relied on a case of Atbir v.

Government of NCT of Delhi (2010)9 Supreme

Court Cases 1.

8. On the other hand, Mr. Sanjay Bardhan Ld. Advocate

appearing on behalf of the state relied on the evidence of

witnesses in this case and submitted that prosecution has

succeeded to prove the fact that the appellant set the victim

on fire after pouring kerosene oil.

9. Mr. Bardhan further relied on the evidence of PW-15 who

recorded the statement of victim in clinical notes showing

cause of injury.

10. Mr. Bardhan has further submitted that though a

defense of false implication due to animosity has been taken

by the appellant side but that was not taken care of Mr.

Bardhan has further submitted that improvement in the

subsequent evidence of a particular witness cannot be taken

into account to throw out his entire evidence.

11. Before parting with, Mr. Bardhan supported the

impugned judgment and submits that conviction of the

appellant is strictly in accordance with law and there is no

illegality and infirmity in the same warranting interference

by this court.

12. We have heard Learned Counsel for the parties and

peruse the material available on record.

Decision

498A IPC

13. Before evaluation of evidence of this issue it would be

profitable to recap the Provision of Section 498-A of IPC

which runs as follows:

"498A Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.- For the purposes of this section, 'cruelty' means-

(a) Any willful 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 is on account of failure by her or any person related to her to meet such demand."

14. From the evidence of prosecution witnesses

particularly PW-4 (Lata Das) it appears that previously

appellant was married with said Lata Das and their

marriage is not yet dissolved. From that point of view

defence by putting suggestions to the witnesses tried to

prove that Namita Mali is not 'wife' of appellant. That apart

appellant himself took a plea in course of his examination

under Section 313 Cr.P.C that Namita Mali (deceased) was

not his legally married wife. In these circumstances,

definition of 'wife' in terms of Section 498A IPC is required

to be discussed first.

15. In this trying situation, we find it appropriate to refer

to the case of Reema Aggarwal v. Anupam, (2004) 3 SCC

199 wherein Hon'ble Apex Court observed that the

expression "husband" covers a person who enters into a

marital relationship and under the colour of such

proclaimed or feigned status of husband subjects the

woman concerned to cruelty in the manner provided under

Section 498-A, whatever be the legitimacy of the marriage

itself for the limited purpose of Section 498-A. The absence

of a definition of "husband" to specifically include such

persons who contract marriages ostensibly and cohabits

with such woman, in the purported exercise of their role

and status us as "husband is no ground to exclude them

from the purview of 498-A IPC. Hon'ble Apex Court has

further held that even second wife can file a complaint

under Section 498-A IPC.

16. In Reema Aggarwal (supra) Hon'ble Supreme Court

has further opined as follows:

" ... The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent..."

17. From the evidence of all the PWs as well as

examination of accused under Section 313 of Cr.P.C it is not

disputed that both the appellant and victim were married

and residing together as husband and wife. From the

written complaint (exhibit-1) lodged by the brother of victim

it appears that after marriage they used to live happily but

thereafter appellant started to suspect his wife (victim)and

used to beat her. Complainant (PW-1) in his evidence also

corroborated the fact of torture and further deposed that

whenever his sister would come to their house she disclosed

the facts of assault. They tried to make the appellant

understand and sent his sister back to her in-laws house. It

has been further deposed that appellants elder brother took

them to Dangapara 3/4 kilometers away from the house of

the complainant but torture continued. PW-2 another

brother of deceased also deposed as to the marriage of his

sister with the appellant. His sister was subject to physical

and mental torture. His sister reported all the factum of

torture to him but somehow she was made understand and

sent back to her in-laws house. On several occasions his

sister was subjected to torture and his sister reported the

same to him.

18. PW-3 residence of Teor village also corroborated the

factum of marriage and tortured. PW-3 has stated in her

evidence that appellant and deceased resided in village Teor

for 2/3 years and thereafter shifted to village Dangapara.

She specifically stated that appellant was driver and he

used to assault Namita (deceased) after returning home. She

further stated that appellant was previously married to one

lady but that wife left him as appellant poured hot starch of

rice on her body. PW-4 (Lata Das) also claimed herself as

first wife of appellant. She stated in her evidence:

"One day in the afternoon Ganesh prayed for rice

(Bhat) to me. While I asked to wait for sometimes

he began to assault me and thereafter poured hot

starch of rice in my person. I out of fear fled away

to my parent's house. I did not return to Ganesh."

19. PW-6 another co-villager of appellant, in his cross-

examination stated about torture and assault inflicted upon

the deceased by the appellant who suspected her. PW-11,

resident of Dangapara, has deposed that after marriage of

Namita and appellant they were residing at Teor Village and

thereafter at Dangapara. Namita Mali is her niece. He has

deposed that appellant used to assault Namita. PW-12 also

corroborated the factum of torture upon the deceased by the

appellant.

20. Mr. Bhattacharya, in course of his argument, has

contended that factum of alleged torture cannot be believed

in absence of any specific date, time or place. He has further

submitted that none of the witnesses ever reported to Police

regarding alleged torture.

21. Looking to the evidence of PW-1, PW-2, PW-3, PW-4,

PW-6, PW-11 and PW-12 we find hardly any material

discrepancies to disbelieve their evidence especially in terms

of their cross-examination wherefrom nothing material was

elicited and PW-2 specially explained that he did not report

this because of fear of torture.

22. Aforesaid oral evidence of relatives and neighbours

together with written complaint we find that prosecution

has been able to prove that Namita Mali (deceased) was

being continuously tortured by her husband i.e. the

appellant.

302 IPC

23. To bring home charge under Section 302 IPC

prosecution relied on evidence of witnesses examined in this

case. From the evidence and exhibited documents it is

undisputed that Namita Mali (since deceased) succumbed to

her burn injuries on 05.04.2007 at about 12.00 night and

she was taken to Balurghat Hospital where she was

admitted at 01.29 hours on 06.04.2007. Namita Mali

expired on 06.04.2007 at 8.30 p.m. It is also not disputed

that at the time of incident appellant Ganesh Mali and

Namita Mali used to reside at Dangapara under PS Hili as

husband and wife.

24. PW-1 Aloke Mali, brother of deceased deposed in his

examination in chief that on that night his cousin brother

Anukul Mali (PW-12) informed him that Ganesh (appellant)

set his sister on fire. Then he along with his brother Subodh

(PW-2) went there and they found a Maruti Car and Ganesh

was about to lift his sister in that car. His sister was in

totally burnt condition. He inquired about the matter and

his sister (deceased) disclosed that she was taking dinner

with Ganesh and one altercation took place and Ganesh set

her on fire. She was admitted in the hospital and his sister

also disclosed before the doctor that her husband set her on

fire. On Friday his sister succumbed to injuries at about

8.00 p.m. On the next day he reported the matter at the

Police Station at about 07.00 a.m. The written complaint

was written by one Shankar Deshmukh as per his

instruction in his presence. Contents of the complaint were

read over to him and that complaint was admitted in

evidence as exhibit-1. He denied the suggestion that his

sister sustained burn injury accidentally at the time of

cooking.

25. PW-2 (another brother of deceased), Subodh @ Supad

Mali, in almost identical testimonies, deposed that on the

alleged date of incident and time the incident was informed

by maternal brother. Then he along with elder brother (PW-

1) rushed to Dangapara and found that an attempt was

making to lift his sister in a car. He along with PW-1, PW-

12, PW-11 and PW-7 accompanied Namita Mali to

Balurghat Hospital. On the way on queries they came to

know that his sister was assaulted by Ganesh (appellant)

and set her on fire after pouring kerosene oil. She was

admitted at Balurghat Hosptial and she succumbed to her

injuries. He put his signature on the inquest reports made

by the Executive Magistrate as well as by the Police. In his

cross-examination he denied the suggestion regarding his

statement before the Police or Magistrate that his sister set

herself on fire due to family dispute in cross-examination he

specifically stated that initially his sister was taken to

emergency room and after treatment she was taken to bed

where other doctor treated her. None of the relatives was

allowed to enter to that place.

26. PW- 5 (Executive Magistrate), conducted inquest over

the dead body of Namita Mali at Balurghat Hospital on

07.04.2007. Inquest report was admitted in evidence of

exhibit 2/1. In his cross-examination he has stated that

witnesses present there did not complaint that deceased

was set on fire by anybody. This answer in cross-

examination cannot necessarily suggest that witnesses

present at the time of inquest told about any accidental fire

or suicide by setting herself on fire.

27. PW-10, ASI of Police attached to Balurghat PS, has

testified in his evidence that on 06.04.2007 he entrusted

with the investigation of Balurghat PS UD Case No.

117/2007. He made arrangement for inquest by the

Executive Magistrate. He also made inquest over the dead

body and prepared a report (exhibit 3/1) thereon. In cross-

examination he has deposed that Subodh Mali (PW-2) was

present and he came to know that she herself set her on fire

out of family dispute. But Subodh Mali (PW-2), categorically

denied the suggestion in his cross-examination regarding

such statement of 'suicide' either before Police or before

Executive Magistrate.

28. PW-6 (Khagen Mali), a resident of Dangapara , has

deposed in his evidence that at the time of incident at about

11.00 p.m. he suddenly heard a sound and came out of his

house and found wife of Ganesh (appellant) lying with burn

injury. At that time he found Ganesh to carry his wife on his

shoulder and told him that he was carrying his wife to the

Hospital. This witness was declared hostile. In his cross-

examination on behalf of the prosecution he has deposed

that on 05.04.2007 at about 11.00 p.m. his neighbour

Ganesh Mali return home and started quarrel with his wife.

He did not give any importance as quarrel between them

happened almost all the days. Later he found fire from the

house of Namita Mali and her crying. At that time his wife

also cried out by saying Ganesh Mali set his wife on fire. In

the mean time Ganesh was carrying his wife and running

and they raised alarm 'dhoro dhoro'. They made

arrangement for sending Namita to Balurghat Hospital. He

identified the material exhibits (Mat I and Mat II) in respect

of burnt shari, burnt kantha and a bottle of kerosene oil

seized by the Police. In cross-examination by defence he

stated that he apprehended Ganesh and on that day they

surrendered him to Police Station.

29. PW-7 (Renubala Mali), resident of Dangapara, has

deposed in her evidence that on the alleged date of incident

and time she was sleeping. Her son cried out raised alarm of

'fire on Namita'. Two years old daughter of Ganesh was

crying. She found Namita in burnt condition. Subsequently,

Namita was taken to Hospital and on the way to Hospital

Namita told that her husband set her on fire. In cross-

examination she stated as follows:

"May be some portion of Ganesh's body was burnt out because he tried to carry his wife."

In cross-examination he denied all suggestions put to her.

30. PW-8 (Manju Mali) wife of PW-6 also corroborated that

at the relevant point of time Namita told her that her

husband set her on fire after pouring kerosene oil. But in

cross-examination she deposed otherwise and she has

deposed that she did not go to the place of occurrence even

to see Namita. She could not say about any conversation

between Namita and other persons.

31. PW-11, (Basanti Mali), another resident of Dangapara,

also corroborated the other evidence on record that on

hearing hue and cry she found that Namita was totally

burnt and she asked to give air and water. She also told her

on way to Balurghat Hospital that her husband set her on

fire after pouring kerosene oil. In cross-examination she

denied all suggestions put to him.

32. PW-12 (Anukul Mali), a resident of Dangapara , has

also testified that on the alleged date of incident and time he

woke up hearing hue and cry and found Ganesh fleeing

away. He chased him but failed. Thereafter he returned to

place of occurrence and found Namita Mali in burnt

condition. He heard from Namita Mali that Ganesh Mali set

her on fire after pouring kerosene oil. He informed PW-1 and

PW-2. They all took away Namita to Hospital. In cross-

examination he has stated that no conversation directly in

between himself and Namita. Again he denied the

suggestion that Namita told him that Ganesh set her on fire.

He denied other suggestion put to him.

33. Therefore, we see good and sound reasons to believe

the evidence of PW-1, PW-2, PW-6, PW-11 and PW-12

regarding statement of Namita Mali (deceased) implicating

her husband on the way to hospital. From the cross-

examination we do not find any material discrepancy in this

regard excepting suggestions put to the aforesaid witnesses

denying any such statement of deceased.

34. Now coming to other evidence on record we find PW-9

has deposed that on 07.04.2007 he accompanied ASI Ainul

Haque (PW-10) to Balurghat Sadar Hospital. After inquest

he carried the dead body to morgue. He handed over

wearing apparels to the deceased to the PW-10 who seized

under a seizure list (exhibit-5).

35. PW-13 (Post Mortem Doctor), stated about injuries

sustained by Namita Mali (deceased) and he opined as

follows:

"Opinion:- The cause of death in aforesaid case is due to the effect of burn injuries as noted above which is antimortem in nature.

This burnt injuries may cause death. This is the post mortem report repared by me in same carbon processes. This report also bears my seal and signature marked Exhibit-6."

36. PW-14, ward master attached to Balurghat Sadar

Hospital, proved the bed head tickets (exhibit-7) of the

deceased. PW-15, (Dr. Amitava Banerjee), surgeon attached

to Balurghat Sadar Hospital, attended Namita Mali who was

admitted under him. He testified as follows:

" I am M.O surgeon now posted at P.L. Jaiswal Hospital Howrah. On 06.04.2007 I was posted in the Balurghat (S) hospital as Surgeon. On that date at 01.29 hours patient Namita Mali 18 years age., female of Dangapara Trimohini P.S. Hili was admitted under me with history of homicidal burn as stated by patient with kerosene by her husband at night.

On examination the patient was found conscious with pulse rate 100 p.m. There was extensive burnt injuries over whole body excepting portion of lower abdomen and part of scalp approximately 80% prognosis of the deceased was bad and was explained to the parties and patient expired on 06.04.2007 at 8.30 p.m. This is my report bearing my signature marked ext.8."

37. In cross-examination doctor (PW-15) further clarified

as follows:

" When I visited the patient in indoor I prescribed injections forthwith and caimpose which is analgesic and sedative for relieves of pain and induce sleep. After administration of this medicine the patient will get relief according to status the patient. Reaction of the medicines starts after 30 minutes. In general patient it will take no such time."

38. In Atbir (supra) the Honble Apex Court has

propounded the following parameters before accepting a

dying declaration:

"22. The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."

39. Section 32 (1) of the Indian Evidence Act enjoins

that, when the statement is made by a person as to the

cause of his death, or as any of the circumstances of the

transaction which resulted in his lost of life, in cases in

which the cause of that person's death comes into

question. Such statements made by the person are

relevant whether the person who made them was alive

or not, at the time when they were made, under the

expectation of death, and whatever may be the nature of

the proceeding in which the cause of his death comes

into question. The statement made by the deceased

person will be treated as admissible in evidence in a

court of law. The reason behind this can be followed by

Latin maxim memo mariturus presumuntur mentri which

means that "the dying man can never lie and truth sits

on the lips dying man. Hence, the dying declaration is

admissible and considered as evidence in court, and

can be used as a weapon to punish the culprit."

40. In this case, we find from the evidence that Namita

Mali (deceased) stated before the witnesses who

accompanied her to Balurghat Sadar Hospital that her

husband (appellant) poured kerosene oil on her person

and set her ablaze. PW-15 (Dr. Amitava Banerjee)

specifically deposed that on 06.04.2007 Namita Mali

was admitted under him at Balurghat Sadar Hospital

and Namita Mali told the doctor about her homicidal

death with kerosene by her husband at night. Such

endorsement in the report of the doctor has been

admitted in evidence as exhibit 8.

41. Mr. Bhattacharyya, in course of his argument

submitted that the doctor (PW-15) did not certify the fit

state of mind of the deceased at the time of giving dying

declaration. In support of his contention he relied on

the case of Atbir (supra).

42. PW-15 specifically stated in his evidence that when

he was treating Namita Mali (since deceased) he found

patient was conscious pulse rate was 100 p.m. and she

was suffering 80% burnt. PW-15 also explained effect of

medicine administer at the time of treatment.

43. PW-13 (Dr. Ritesh Chakraborty) P.M. doctor in his

evidence , has deposed as follows:

" ............ First and second degree burn injury all over body front of chest, abdomen both upper limb and lower limb and upper part of thigh not burnt. Also burnt injury of first and second degree found back of chest. Upper arm and lower limb.

All the injuries showing evidence of vital reaction. The margin and the base of the injuries are congested and showing evidences of formation of listers at places. No other injuries, except those are noted above to have been detected even after careful dissection and examination with the help of magnifying glass her is liters found in the affected side."

44. If we take the evidence of two doctor's i.e PW-13

and PW-15 together we find that at the time of giving

statement before the doctor (PW-15) she was conscious.

The person who records the dying declaration must be

satisfied that the maker is in a fit state of mind and

conscious while making the statement. From the exhibit

8 and evidence of PW-15 we are unable to come to any

conclusion that at the time of giving statement deceased

was not in a fit state of mind or unconscious.

Furthermore, such statement was corroborated by the

witnesses before whom deceased made same statement

while she was being shifted to Hospital by car.

45. According to Atbir (supra) even a statement is in

brief or does not contain all details as to the occurrence,

that cannot be discarded. So, after careful perusal of

the evidence available on record we cannot discard the

dying declaration made by the deceased.

46. Mr. Bhattacharyya, has further tried to impress

this court by referring to the evidence of PW-10 and PW-

5 that victim committed suicide. It is submitted that at

the time of inquest (exhibit 2/1 & 3/1) PW-2 was

present along with other witnesses stated before the

PW-5 and PW-10 that Namita Mali committed suicide

by setting herself on fire.

47. It is true that PW-2 (Subodh Mali) signed the

inquest report along with other three (3) witnesses.

From the inquest reports prepared by PW-5 and PW-10

we do not find any statement made by any of the

particular witness. On the other hand PW-2 Supad @

Subodh Mali specifically denied the suggestion in

course of cross-examination that he stated about

commission of suicide by Namita Mali (deceased) at the

time of inquest. Therefore, on this score, we cannot

disbelieve evidence of PW-2 on oath.

48. Mr. Bhattacharyya, in course of his argument, has

drawn our attention to the evidence of DW-1 in support

of injury sustained by the appellant who tried to rescue

his wife.

49. From the evidence of PW-1 in his evidence sated

that after reaching there they found one Maruti Car and

Ganesh (appellant) was about to lift his sister in that

car. PW-2 stated in his evidence that on reaching there

he found that an attempt was being made to lift his

sister in a car.

50. PW-6 stated in his evidence that he found Ganesh

(appellant) to carry his wife on his shoulder and Ganesh

told him that he was carrying his wife to the Hospital.

This witness was declared hostile. But in his cross-

examination on behalf of the prosecution he stated that

he gave statement before the police that he found

Ganesh carrying his wife and running then they cried

by saying 'dhoro dhoro' . PW-8 (Manju Mali), has stated

in her evidence that she found Namita (deceased) in

burnt condition and Ganesh was carrying her on his

shoulder.

51. PW-12 (Anukul Mali) has testified that he found

Ganesh Mali (appellant) to flee away and he chased him

but failed.

52. From the evidence of DW-1 (Doctor Monotosh

Sutradhar) who corroborated the burn injury sustained

by the appellant. He being Medical Officer attached

Correctional Home at Balurghat, examined the Ganesh

Mali (appellant) as under trial prisoner in the Balurghat

District Correctional Home and he referred him to

Balurghat Sadar Hospital. According to patient he was

trying to save his wife from burning received that injury.

But Ganesh Mali (appellant) never stated before the

doctor (DW-1) that his wife committed suicide by setting

herself on fire. Therefore, from the evidence of

prosecution witnesses which we have discussed in

earlier paragraphs together with the evidence of DW-1

we cannot come to a findings that injury sustained by

the appellant due to his effort to douse the fire to save

her burning wife who made dying declaration

implicating the appellant. That apart, from the cross-

examination of PW-17 (I.O of this case) it is found that

I.O arrested accused/appellant on 07.04.2007 at 18.20

hours from Teor, he was trying to hide himself in a

forest. This particular evidence regarding arrest of the

accused from different village remained unchallenged

throughout his rest cross-examination. Post occurrence

conduct of the appellant is admissible within the

meaning of Section 8 of the Evidence Act.

53. It is settled proposition of law that due to defective

investigation, the rest of the evidence must be

scrutinized independently of impact of it. In our case,

from the side of the appellant nothing material has been

placed before us to show that any prejudice was caused

to him for the reason of defective investigation.

54. Mere lapse on the part of prosecution should not

lead unmerited acquittal, subject to rider that in such

situation evidence on record should be clinching, so

that lapses of prosecution can be condoned. In this

case, evidence of witnesses is cogent and consistent

further supported by dying declaration of thee deceased.

55. From the entire evidence on record we find the

following incriminating circumstances against the

appellant to prove his guilt within the meaning of

Section 498-A/302 IPC:

a. Appellant was married with deceased.

b. Appellant subjected deceased to physical and

mental torture.

c. Deceased made dying declarations before the

witnesses as well as before the doctor implicating

the appellant who set her on fire.

d. Appellant fled away after the incident and took

shelter another village Teor and tried to hide

himself in a forest wherefrom he was arrested.

56. The aforesaid chain of circumstances against the

appellant is of conclusive nature. There is a complete

chain of circumstances which shows that in all human

probabilities, the offence has been committed by the

appellant. Therefore having re-appreciated the entire

evidence on record, we concur with Learned Trial Court.

It is not a fit case where impugned judgment requires

any interference.

57. For the reasons, this appeal stand dismissed.

58. All pending applications, if any, stand disposed of

accordingly.

59. Let a copy this judgment along with the Trial

Courts record be sent back forthwith.

60. All parties shall act on the server copies of this

judgment duly downloaded from the official website of

this Court.

61. Urgent Photostat certified copy of this order, if

applied for, be supplied expeditiously after complying

with all necessary legal formalities.

[BIBHAS RANJAN DE, J.]

62. I Agree.

[DEBANGSU BASAK, J.]