Md. Pervez @ Md. Parvez Alam @ ... vs The State Of West Bengal
2022 Latest Caselaw 8459 Cal

                                   1


                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi
                          C.R.A. 11 OF 2020
     Md. Pervez @ Md. Parvez Alam @ Parvez Alam @ Kalki Rajesh
                                VS.
                      The State of West Bengal


For the appellant : Md. Khairul, Advocate
                    Md. Irfan, Advocate

For the State    : Mr. Swapan Banerjee, Ld. APP
                   Ms. Purnima Ghosh, Advocate

Heard on         : November 17, 2022, December 5, 2022 and
                   December 19, 2022

Judgment on      : December 19, 2022

DEBANGSU BASAK, J.:-

1.

The appeal is directed against the judgment of conviction

dated June 27, 2019 and the order of sentence dated June 28,

2019 passed by the learned Additional District and Sessions

Judge, Fast Track Court - I, Sealdah, South 24-Parganas, in

Sessions Trial No.5 (4) of 2015.

2. By the impugned judgment of conviction, the learned

Judge convicted the appellant under Section 302 of the Indian

Penal Code, 1860.

3. By the impugned judgment and order of sentence dated

June 28, 2019, the learned Judge awarded a sentence of life

imprisonment for the offence punishable under Section 302 of

the Indian Penal Code, 1860 and to pay fine of Rs.5,000/-. In

default, the appellant was directed to undergo rigorous

imprisonment for six months more.

4. The case of the prosecution before the trial court was

that, the appellant after his marriage with the victim,

subjected the victim to cruelty by physical and mental torture.

Moreover, the appellant committed murder of the victim by

intentionally and knowingly causing death of the victim on

November 4, 2014 at about 21.50 hours at their residence.

5. The trial court framed charges as against the appellant

under Section 498A of the Indian Penal Code, 1860 and under

Section 302 thereof. The appellant pleaded not guilty and

claimed to be tried.

6. Learned Advocate appearing for the appellant submits

that, the prosecution did not prove the case beyond reasonable

doubt. He submits that, there are three so-called dying

declarations Exhibit 13, Exhibit 12 and Exhibit 20. He

submits that, the so-called dying declarations are

contradictory to each other.

7. Learned Advocate appearing for the appellant submits

that, the brother of the victim escorted the victim to the

hospital. He draws the attention of the Court to the deposition

of the brother of the victim and submits that, he does not say

that, the appellant was involved in the incident. He refers to

the evidence of P.W.3 and P.W.4 and submits that, P.W.4 was

present at the spot at the time of the incident and stated that,

the victim committed suicide. He submits that, the presence

of P.W.4 at the spot at the time of the incident, was

established by the evidence of P.W.s 9 and 11. He submits

that P.W.3 is also an eye-witness. Neither P.W.3 nor P.W.4

implicates the appellant as the murderer. Rather, they stated

that, the victim committed suicide.

8. Referring to the evidence-on-record, learned Advocate

appearing for the appellant submits that, there is a shift in the

place of occurrence. At times, the prosecution witnesses

stated in their testimonies that, the incident occurred at the

bedroom while it was stated by one of the prosecution

witnesses, namely, P.W.3 that the incident occurred at the

kitchen.

9. Referring to the evidence of the P.W.3, learned Advocate

appearing for the appellant submits that, P.W.3 is the

daughter of the victim. The prosecution did not declare P.W.3

as a hostile witness. Therefore, the evidence of P.W.3 to the

incident stating that the place of occurrence was the kitchen is

binding upon the prosecution.

10. Again referring to the evidence of P.W.3, learned Advocate

appearing for the appellant submits that, the P.W.3 stated

that, the victim committed suicide by pouring kerosene oil on

her. Her father, the appellant herein, poured water upon the

victim. Therefore, he submits that, the appellant did not

commit murder of his wife, the victim. Rather, the evidence of

the prosecution establishes that the victim committed suicide.

11. Referring to the post-mortem report of the victim, being

Exhibit 11, learned Advocate appearing for the appellant

submits that, the victim committed suicide.

12. Learned Advocate appearing for the appellant submits

that, the so-called dying declarations are contradictory and,

therefore, no reliance can be placed therein. In support of

such contention, he relies upon 2019 4 SCC 739 (Sampat

Babso Kale & Anr. Vs. The State of Maharashtra), 2021

SCC Online Supreme Court 260 (Naresh Kumar vs.

Kalawati and Others) and 1999 7 SCC 695 ( Paparambaka

Rosamma & Ors. Vs. State of Andhra Pradesh).

13. Consequently, learned Advocate appearing for the

appellant submits that, since the prosecution could not

establish the case beyond all reasonable doubts, the appeal

should be allowed.

14. Learned Advocate appearing for the State submits that,

the prosecution was able to establish the case beyond all

reasonable doubts. It is submitted that, the daughter of the

victim recorded her statement under Section 164 of the Code

of Criminal Procedure being Exhibit 20. Her signature on the

statement recorded under Section 164 of the Code of Criminal

Procedure was exhibited as Exhibit 5 series. In such

statement, P.W.3 stated that, the father poured kerosene on

the victim.

15. Referring to the dying declarations of the victim, which

was recorded under Section 164 of the Code of Criminal

Procedure, being Exhibit 21, learned Advocate for the State

submits that, the victim also stated that, the appellant poured

kerosene on her. Therefore, the dying declarations of the

victim being Exhibit 21, was corroborated by the statement of

the daughter of the victim being Exhibit 20. The medical

evidence produced at the trial corroborates that the victim

died out of burn injuries. Therefore, it is contended on behalf

of the State that, there was overwhelming materials before the

trial court to establish that the appellant murdered the victim.

16. So far as the two dying declarations being Exhibit 3 and

Exhibit 4 are concerned, learned Advocate appearing for the

State contends that, there were recordings made by the doctor.

In view of the categorical statements of the victim as appearing

from Exhibit 21 and corroborated by her daughter, in Exhibit

20, he submits that, the conviction and the order of sentence

should be upheld.

17. Prosecution examined 26 witnesses at the trial.

Prosecution also relied upon various documentary and

material evidences at the trial. The appellant was examined

under Section 313 of the Criminal Procedure Code, on the

conclusion of the evidence of the prosecution. The appellant

claimed to be innocent in such examination and stated that he

would not adduce evidence in defence. The appellant did not

adduce any evidence at the trial.

18. A Sub-Inspector of Police, who made the rough sketch

map and the final sketch map of the place of occurrence,

deposed as P.W. 1. He tendered the rough sketch map as

Exhibit-1 and the final sketch map that he prepared as

'Exhibit-2'.

19. Another police personnel, who took photographs of the

premises containing bedroom and the kitchen and the

entrance of the flat deposed as P.W. 2. Eleven photographs

along with their negatives, which he took of the place of

occurrence, was marked as Exhibit-3 series. His endorsement

was marked as 'Exhibit-4' series.

20. The daughter of the victim deposed as P.W. 3. In her

deposition, she stated that, on the fateful day and time, she

was playing with a friend. She also stated that there was a

quarrel between her father and her mother. Her father is the

appellant while the victim was her mother. She stated that,

when her mother went to the kitchen to break her bangles,

then her mother put kerosene oil on her body and got burnt.

Thereafter, her father poured water on the body of her mother.

Then her mother came to the room when she gave her one

nighty to wear. Thereafter, she wore the nighty and came out

from the room and walked one step but she fell down and sat

down on the staircase.

21. P.W. 3 was not declared hostile by the prosecution. At

least, the materials placed on record, do not suggest that P.W.

3 was declared hostile. However, in her deposition, P.W. 3 was

shown her statement recorded under Section 164 of the

Criminal Procedure. She admitted her signatures therein. It

was marked as 'Exhibit-5' series. She was not confronted with

the contents of the statement she recorded under Section 164

of the Criminal Procedure Code. No suggestion was put to her

that the statements she recorded under Section 164 of the

Criminal Procedure Code were incorrect or false.

22. P.W. 4 identified the appellant in Court. He stated that

the victim was his sister. He stated that, the victim stayed at

her matrimonial house. A quarrel took place between the

victim and her husband for such reason she committed

suicide. He stated that, he admitted the victim in the Nursing

Home at about 10:45 P.M and on the following Tuesday, the

victim died.

23. P.W. 5 is a neighbour of the appellant. He claimed at the

trial that, he went to the house of victim and arranged to send

the victim to the hospital by a rickshaw and after sometime he

also went to the Chittaranjan Hospital and came to know, on

the same day that the victim was shifted to 'Repose Nursing

Home' and he went to Repose Nursing Home.

24. Another neighbour of the appellant deposed as P.W. 6.

He stated that he never heard about the relationship between

the appellant and the victim. About the incident, he narrated

that he was about to take dinner when he heard shouting

'save me', 'save me' and when he opened the door, he saw the

victim in a naked condition and she pulled her nighty on her

own. The victim was shifted to the hospital. He identified the

appellant in Court.

25. Another neighbour of the appellant deposed as P.W.-7.

He did not add any value to the case of either the appellant or

the prosecution.

26. P.W. 8 stated that she is not aware of the case of the

death of the victim. She, however, stated that, after marriage,

the victim was in peace with her husband.

27. P.W. 9 is a relative of the victim. He stated that, at the

time of the incident, he was in his room when he heard one

cry. He saw the brothers of the victim and the appellant. He

received the victim with burn injuries on her person. He along

with the brothers of the victim went to Chittaranjan Hospital.

Thereafter, the victim was admitted to the hospital. He stated

that initially after the marriage, the relationship between the

victim and the appellant was good but subsequently, their

relationship became strained and disputes cropped up. He

was not aware of the disputes.

28. P.W.-10. knew the victim. She deposed that, she visited

the victim at the hospital. She stated that, since the death of

the victim, her brother, P.W.-3 herein, used to reside with her.

She stated that she was not aware of the relationship between

the victim and the appellant.

29. The sister-in-law of the victim deposed as P.W. 11. She

stated that, she saw the brother of the victim and P.W. 3 with

local boys, bringing down the victim in burnt condition. She

went to the hospital along with the brother of the victim. She

filed an application before the hospital for discharge of the

victim for better treatment in another Hospital. The victim

was shifted from Chittaranjan Hospital to Repose Nursing

Home where she was treated for a week and she died. She

stated that when she shifted the victim to Chittaranjan

Hospital, she was senseless.

30. P.W.-12 claimed that, she knew the victim. She did not

witness the incident. She did not add any value to the case of

either the prosecution or the appellant.

31. A friend of P.W. 3, the daughter of the victim deposed as

P.W. 13. She did not add any value to the case of either the

prosecution or the appellant.

32. An employee attached to the Kolkata Police, deposed as

P.W. 14. He was present when the members of the family of

the victim identified the body of the victim for the purpose of

the post mortem examination.

33. The forensic expert, who visited the place of occurrence,

deposed as P.W. 14. He stated that, on November 7, 2014, he

visited the place of occurrence at about 4.30 p.m. He tendered

a report, which was marked as exhibit 8. He has stated that,

manifestation of fire incident was quite evident at the flat. He

also found a wick fitted stove kept aside in partially opened

condition with liquid bearing the smell of kerosene oil. He

made certain seizures from the spot.

34. The doctor in whose presence the bed head ticket of the

victim admitted at the hospital was seized deposed as P.W. 16.

The doctor, who conducted the post mortem on the body of the

victim, deposed as P.W. 17. He described the injuries found

on the body of the victim. He tendered the post mortem

report, which was marked as exhibit 11. He stated that, in his

opinion, if anybody poured kerosene oil and set herself on fire,

then such person will suffer the type of burn injuries

appearing on the dead body of the victim.

35. The doctor, who treated the victim at the Repose Nursing

Home, deposed as P.W. 18. He stated that, the patient was

examined on November 5, 2014. On such examination, at first

glance, he saw that the patient was in shock. According to

him, on clinical assessment and on instruction it turned out to

him that, the victim suffered burn injury of 85 per cent to 92

per cent. He stated that, the victim was set on fire by her

husband. He also stated that the patient was full of sense

because she answered all her questions when she was asked.

She was asked as to how the incident happened, when the

victim answered clearly and in an audible speech that it was

her husband, who poured kerosene oil on her person and then

her husband set her ablaze.

36. The doctor, who was posted at the Kolkata National

Medical College, where the victim was initially admitted,

deposed as P.W. 19. He stated that the patient gave her

statement to the police personnel who was present there in his

presence. He tendered the statement given by the patient to

the police, which was marked as exhibit 13/1.

37. The doctor, who did not examine the victim at the Kolkata

National Medical College, deposed as P.W. 20. He stated that,

when he came for his round to check all the patients, he found

that the victim was discharged on risk bond on November 4,

2014 on 11.25 p.m.

38. The police personnel, who conducted the inquest report,

deposed as P.W. 21. The police personnel, who was a part of

the raid party, which arrested the appellant deposed as P.W.

22.

39. The Judicial Magistrate, before whom the daughter of the

victim recorded statement, deposed as P.W. 23. She tendered

the 164 Cr.P.C. statement of the daughter of the victim as

exhibit 20.

40. P.W. 24 is the Judicial Magistrate, before whom the victim

recorded her statement under Section 164 Cr.P.C. The

statement of the victim was tendered in evidence and marked

as exhibit 21.

41. The doctor, before whom the 164 Cr.P.C. statement of

victim was recorded, deposed as P.W. 25. He stated that, at

the time of recording of the statement, the victim was in a fit

state of mind for giving her statement. The victim stated all

the facts in the 164 Cr.P.C. statement in her own language

and the same was recorded according to her version. During

recording of her statement, no one interested was present

except himself, learned Magistrate and the victim. At the time

of recording of the statement of the victim, he was present as

the Resident Medical Officer of Repose Nursing Home. He was

cross-examined by the appellant.

42. The Investigating Officer, deposed as P.W.26. He narrated

about the steps taken during the investigations. He also

narrated how the statements of various witnesses were

recorded and the seizures made. He was cross examined at

length on behalf of the appellant.

43. On conclusion of the evidence of the prosecution, the

appellant was examined under Section 313 of the Cr.P.C.,

where, the appellant claimed to be innocent. He stated that he

will not adduce any evidence at the trial.

44. The post mortem report of the victim, exhibit 11 states

that, the victim died out of burn injuries. The post mortem

doctor, being P.W. 17 stated in his deposition that, if anybody

pours kerosene oil and set herself on fire then such type of

burn injuries as noted on the body of the victim may occur.

45. The post mortem doctor, P.W. 17, in the post mortem

report being exhibit 17 stated that, the body of the victim

contained the following injuries :-

"Infected (ulcerated) burn injury over the whole body of

surface area except both soles.

The base of the injury were congested.

Ulcerated burn injuries were covered with pus and slough.

All the injuries showed evidence of vital reaction. No other

injury could have been detected even on thorough dissection

and careful examination by a hand lens (Magnifiang glass)."

46. Therefore, the report of the post mortem doctor Exhibit -

11 and his evidence at the trial, established beyond reasonable

doubts that the victim died out of burn injuries.

47. It is the contention of the appellant that the victim

committed suicide while the prosecution claims that, the

appellant murdered the victim.

48. The motive for the murder so far as the prosecution is

concerned, is unfulfilled demand for dowry. The charge under

Section 498A of the Indian Penal Code, 1860, levelled as

against the appellant was found to be not proved by the

learned Trial Judge. We are not informed as to the pendency of

any appeal on such score.

49. According to the prosecution, the victim recorded a dying

declaration which is sufficient to establish the guilt of the

appellant.

50. In Parambaka Rosamma & Ors. (Supra) the victim there

sustained 90% burn injuries. There the case of the

prosecution rested on the dying declaration. It was held that

in absence of medical certification that the victim was in a fit

state of mind at the time of making the declaration, it would

be risky to accept subjective satisfaction of a Magistrate who

opined that the injured was in a fit state of mind at the time of

making declaration.

51. Sampat Babso Kale & Anr. (Supra) is of the view that a

dying declaration is an extremely important piece of evidence

and where the court is satisfied that the dying declaration is

truthful, voluntary and not a result of any extraneous

influence, the court can convict the accused only on the basis

of a dying declaration.

52. Naresh Kumar vs. Kalawati & Ors. Breported in 2021

3 SCC 111 the Court found that the statement of the deceased

vacillated and that there was no evidence about fitness of

mind of the deceased to make the dying declaration. The

presence of the doctor while making the dying declaration did

not come out in evidence. The veracity and truthfulness of the

dying declaration remained suspect. In such circumstances, it

would not be safe to reject the probable defence of suspect.

The facts and circumstances in the presence case are

different.

53. The daughter of the victim recorded a statement under

Section 164 of the Code of Criminal Procedure which was

tendered in evidence and marked as Exhibit - 20. P.W. 3 in

her statement recorded under Section 164 of the Code of

Criminal Procedure, marked as Exhibit-20, stated that the

appellant poured kerosene over the victim and set her on fire.

P. W. 3 however in her testimony before the trial Court sought

to introduce a case that the victim poured kerosene and set

her on fire while the appellant poured water on the body.

54. The date of the incident is November 4, 2014. P.W. 3

deposed at the trial that on August 3, 2015, when she was in

the custody of another person. The possibility of P.W. 3 being

tutored, in order to exonerate her father cannot be ruled out.

Contemporaneously P.W. 3 implicated the appellant in Exhibit

20. Exhibit-21 being the statement of P.W. 3, corroborates

Exhibit - 20, being the statement of the victim recorded under

Section 164 of the Code of Criminal Procedure.

55. Exhibit - 13 is a statement made by the victim on

November 4, 2014. The victim recorded a statement with the

Police in presence of a doctor. The doctor who was present at

the time of recording of such statement, deposed as P.W. 19.

He stated that, the victim recorded a statement with the police

in his presence. He said that, the victim was fully conscious,

alert and cooperative. The victim was also well oriented to the

time, place and the person.

56. In Exhibit-13 also, the victim stated that, her husband

poured kerosene over her and set her on fire. Exhibit-12 is a

statement which is recorded by a doctor. There, also, the

doctor stated that, the victim stated that her husband put her

on fire by using kerosene.

57. The victim recorded a statement under Section 164 of the

Code of Criminal Procedure being Exhibit - 21. The statement

was recorded in presence of a doctor being P.W. 25. In his

examination-in-chief, P.W. 25 stated that, at the time of

recording the statement, the victim was in a fit state of mind

for giving her statement. He also stated that the victim stated

everything in her own language and the statement was

recorded according to her version. Moreover, no interested

person except the doctor and the learned Magistrate were

present at the time of recording the statement.

58. The Magistrate who recorded the statement of the victim

under Section 164 of the Code of Criminal Procedure deposed

as P.W. 24. She stated that, immediately before recording the

statement of the victim, the attending doctor, being P.W. 25

checked the victim. The victim was conscious and was able to

make her statement.

59. Therefore, P.W. 24 and P.W. 25 established conclusively

that, the victim was conscious and in a fit state of mind to

make her statement. The statement was made which was

marked as Exhibit 21 in her language and according to her

version. In Exhibit 21, being the statement of the victim, she

stated that, the appellant poured kerosene over her and set

her on fire.

60. As noted in the authorities cited at the bar, a dying

declaration is an important piece of evidence. An accused can

be convicted on the basis of a dying declaration if the Court

finds the same to be truthful, voluntary and not a result of any

extraneous influence.

61. In the facts of the present case, Exhibit 21 was recorded

by a Magistrate in presence of a doctor who certified the

fitness of the victim to make the statement. He also stated

that no other person apart from the victim, the Magistrate and

himself as the doctor were present at that time. The dying

declarations corroborated each other. They were made by the

victim consciously, voluntarily, truthfully and without any

extraneous influence.

62. The common statements of Exhibits 20, 21,13 and 12 are

that, the victim was set on fire by her husband who is the

appellant herein. P.W.3, who made the statement under

Section 164 of the Code of Criminal Procedure, being Exhibit

20, in her testimony in Court, tried to take a different stand.

63. We need to take into consideration the age of P.W.3, her

relationship with the appellant as the daughter of the

appellant and also the time elapsed between the date of the

incident and the date when she went to the witness box to

depose. P.W.3 was shown her statement recorded under

Section 164 in cross examination. The defence, therefore,

acknowledged the contents of the statements made by her in

the Section 164 statement when the defence put questions to

her on such statement. Such statement was not marked as

an exhibit by the prosecution during the examination in chief

of P.W.3. The version, therefore, of P.W.3 in the witness box

with regard to the incident, as it is contradictory to Exhibit 20,

needs to be disbelieved and is, therefore, disbelieved.

64. There is overwhelming evidence in the nature of dying

declarations of the victim as well as of the doctors implicating

the appellant in setting the victim on fire after pouring

kerosene over her. The Forensic Expert, being P.W.15

corroborated the case of the prosecution that, the victim was

set on fire by using kerosene. The Forensic Expert found a

wick fitted stove kept aside in a partially open condition at the

place of occurrence. He also found kerosene oil thereat. He

seized unused match sticks and the match box containing the

same.

65. The Forensic Expert, P.W.15, who visited the spot, stated

that he found manifestation of fire at the kitchen with heat

scorched plastic articles, partly burnt and heat scorched

synthetic dress materials that hanged from the grill in between

the living room and the kitchen. Therefore, the place of

occurrence was also established conclusively by the

prosecution.

66. In such circumstances, the prosecution was able to

establish beyond all reasonable doubts that, the appellant

poured kerosene over the victim and set her on fire and that

the victim died out of the injuries suffered from such fire.

Therefore, the prosecution was able to prove beyond all

reasonable doubt that the appellant murdered the victim.

67. By the impugned order of conviction, the appellant was

convicted under Section 302 of the Indian Penal Code, 1860.

By the impugned order of sentence, the appellant was directed

to undergo imprisonment for life for the offence punishable

under Section 302 of the Indian Penal code, 1860 and to pay a

fine of Rs.5,000/-. In default of payment, he was directed to

undergo rigorous imprisonment for six months more.

68. In such circumstances, we find no ground to interfere

with the impugned judgment of conviction and the order of the

sentence. We affirm the same.

69. C.R.A. 11 of 2020 is dismissed accordingly.

70. All pending applications, including application for bail, if

any, shall stand disposed of on the above terms.

71. Trial Court records along with a copy of this judgement

be sent down at once to the learned trial Court for necessary

action.

72. Period of detention already undergone during enquiry

and/or trial shall be set off against the substantive sentence in

terms of the provisions under Section 428 of Cr.P.C. [

73. Urgent Photostat certified copy of this order, if applied

for, be supplied to the parties expeditiously after complying

with all necessary legal formalities.

(Debangsu Basak, J.)

74. I agree.

(Md. Shabbar Rashidi, J.)