Calcutta High Court (Appellete Side)
Sanjib Bose @ Poppy vs State Of West Bengal on 20 May, 2022
Item No. 17
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 596 of 2012
Sanjib Bose @ Poppy
-Vs-
State of West Bengal
For the Appellant : Ms. Subhasree Patel, Adv.
Mr. Subir Debnath, Adv.
Mr. Soham Banerjee, Adv.
Ms. Roma Roy, Adv.
Ms. Saini Das, Adv.
For the State : Mr. Partha Pratim Das, Adv.
Ms. Amita Gaur, Adv.
Heard on : 20th May, 2022
Judgment on : 20th May, 2022
Joymalya Bagchi, J. :-
One and half years prior to the incident Sanjib Bose @ Poppy
and Silpi Bose (the victim herein) married each other out of love.
Parents of couple did not approve of the marriage. The couple started
residing in the tenanted room under one Jagadish in Satin Sen Nagar.
Matrimonial life of the couple was fraught with stress due to poverty.
Sanjib demanded money and tortured Silpi. On 13.06.2005 Sanjib
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returned home and a quarrel ensued. In course of quarrel, he hit his
wife and thereafter he poured kerosene oil and set her on fire. In order
to save her life Silpi ran out of the house and fell down in front of one
Ranikuthi Lodge. She was taken in a van rickshaw to her parental
residence. She disclosed that she had been set on fire by Sanjib. Her
parents took her New Barrackpore outpost and therefrom in an
ambulance she was taken to R.G. Kar hospital. P.W.16 Dr. Atanu
Acharya examined her at the emergency department. She was
conscious and stated that her husband had tortured and set her on
fire. Dr. Acharya endorsed her statement in the admission papers. She
was admitted in the hospital. On the next day her mother Sipra
Mallick (P.W.1) lodged complaint at Ghola police station resulting in
Ghola P.S. case No. 125 dated 13.06.2005 against the appellant under
Section 498A/307 IPC. Investigation Officer (P.W.14) recorded her
statement in the hospital in presence of Dr. Sudipta Chatterjee,
(P.W.17). Unfortunately, she expired on 15.06.2005. Offence under
Section 302 was added to the FIR.
In conclusion of investigation charge sheet was filed and
charges were framed under Sections 498A, 307 and 302 of the Indian
Penal Code against the appellant. Appellant pleaded not guilty and
claimed to be tried. In course of trial, prosecution examined 18
witnesses and exhibited a number of documents. Defence of the
appellant was one of innocence and false implication. In conclusion of
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trial, trial judge by judgment and order dated 31.07.2012 and
01.08.2012
convicted the appellant for commission of offence
punishable under Section 302 of the Indian Penal Code and sentenced
him to suffer imprisonment for life and to pay fine of Rs. 5000/-. Hence
the present appeal.
Ms. Patel, learned advocate for the appellant argues there is no
direct evidence that the appellant had set his wife on fire. Landlord of
the premises was not examined. His wife Parul Roy, P.W.6 is silent
with regard to any altercation between the appellant and the deceased
on the day of occurrence. None of the neighbours were examined.
Prosecution has relied on the dying declaration of the victim girl which
is a product of tutoring by her parents and police. Appellant was not
present at the house. When the victim lady was found with burnt
injuries in front of Ranikuthi Lodge, he accompanied her to her
parental home. He was wrongfully detained at the police station and
thereafter falsely implicated in the case. Hence, conviction ought to be
set aside and the appeal be allowed.
Mr. Das, learned advocate for the State argues the prosecution
witnesses including one Badal Das, P.W.5 and Parul Roy, P.W.6 have
spoken of torture on the victim by the appellant. On the fateful day the
appellant had again tortured the victim and assaulted her. Thereafter,
he set her on fire. Somehow she was escaped and ran in front of
nearby lodge. Sanjay Nandi, P.W.8 owner of the lodge found her in
burnt condition. She was removed in van rickshaw to her parents
house. At the earliest opportunity she disclosed appellant had tortured
and set her on fire. Hearing this her parents took her to New
Barrackpore out post and thereafter in an ambulence to R. G. Kar
Hospital. At the time of admission she made statement before Dr.
Acharya, P.W.16. On the next day she made elaborate statement
before the Investigating Officer P.W.14 in presence of doctor, P.W.17.
Her dying declarations as recorded by P.Ws.16 and P.W.14 are proved
and marked as Exhibits 11 and 6 respectively. The dying statements
are consistent with one another as well as the oral depositions of the
parents P.W.1 and P.W.2 of the victim. Hence, the prosecution case is
proved beyond doubt and the appeal is liable to be dismissed.
P.Ws. 1 to 4 are the relations of the deceased.
P.W.1 Sipra Mallick, is a mother and informant in the instant
case. She deposed one and half years ago her daughter had married
Sanjib Bose. It was a love marriage. She had not approved the
marriage. After marriage couple started residing in a rented premises
under one Jagadish at Jora Pukur. Sanjib used to torture her
daughter. She was found lying injured in front of Ranikuthi Lodge. The
boys of a catering team brought to her house around 2.30 A.M. Front
portion of her body was completely burnt. She stated she was
assaulted and set on fire by her husband. They took her to New
Barrackpore Phari. An ambulance was arranged and she was taken to
R.G. Kar hospital where she expired three days after the incident.
P.W.1 lodged written complaint at Ghola police station. Police seized
various articles from the residence of the appellant. She was signatory
to the seizure list. Her husband P.W. 2 Sristidhar Mallick has
corroborated her version. He stated at 1.30 P.M. Gopal brought his
daughter in a van rickshaw. Front side of her body was burnt. Gopal
informed she was found in burnt condition in front of a lodge. His
daughter stated that Sanjib had set her on fire. She was taken to
police phari thereafter to hospital. She died after three days. She made
statement before police in front of doctor. She had come to their
residence on the previous day, i.e., Jamail Sasthi and asked money as
they were in stringent condition.
P.W.3, Dulal Madhu is the maternal uncle of the deceased. He
met her at R.G. Kar hospital where she stated that appellant had set
her on fire.
P.W.4 Sima Mallick is the younger sister of the deceased. She
has corroborated her parents in all material particulars.
P.W.5, Badal Das is a neighbour of Sanjib. He stated one night
he had seen Sanjib physically assaulted his wife. He had raised alarm.
P.W.6, Parul Roy, is the wife of the landlord where the couple
resided. She also stated from time to time she had seen the couple
quarrelling. She was a signatory to the seizure list prepared in
connection with seizures made at the rented apartment of the couple.
P.W.7 Lakshmirani Halder, another neighbour stated at night
Gopal informed that Shilpi was burnt. He saw Shilpi was being
brought in a van rickshaw. She told him that appellant had poured
kerosene oil and set her on fire. Thereafter, Shilpi was taken to R. G.
Kar Hospital in municipal Ambulance.
P.W.8 Sanjay Nandy, is the owner of Ranikuthi Lodge. He
stated one Parimal Roy, caretaker of the lodge, informed him about the
incident. He came to the spot and saw Shilpi in burnt condition. He
called van rickshaw and she was taken to her fathers house.
P.W.12 Gopal Das, deposed he had taken Shilpi to the hospital
from Ranikuthi Lodge. P.W.11 Tapas Banerjee deposed he drove the
ambulance and took Silpi to R. G. Kar Hospital.
At R.G. Hospital P.W.16 Dr. Acharya examined Silpi in the
emergency department. He found her conscious and as per her
statement noted the history of assault as follows:
"Her husband tortured and set her on fire on 12.06.2005
night". He proved the report Exhibited 11.
P.W 14 SI Raghunath Ghosh was the first investigating officer.
He went to the place of occurrence and prepared rough sketch map. He
seized one jerican of kerosene oil, one lighter and burnt nighty from
the residence of the appellant under a seizure list. He sought
permission from the Superintendent of R.G. Kar hospital to record the
statement of the victim. Thereafter he examined the victim at R.G. Kar
hospital in the presence of Dr. Sudipta Chatterjee (P.W. 17). The victim
stated as follows:
"Yesterday i.e. on 12/06/05 at about 11.30 in the night my
husband beat me up severely. Thereafter I asked him why
do you beat me up after returning from your paternal home?
When quarrel broke out with my husband over this comment
he told me - I will kill you. After that he poured kerosene on
my body from the jeurycan kept in the room and set fire to
my body with a lighter. Then I told my husband that I
wanted to like and asked him to save me. But he kept the
door closed. I asked him to call the landlady but he did not
pay heed. After that I poured water over my body from the
bucket kept inside the room. Thereafter I forsibly (sic.
forcibly) went out of the room although my husband was in
the room and I collapsed after reaching Ranikuthi. Then
some people who are in catering service saw me of them one
was called Gopal whom I knew. They informed my father.
Thereafter my father came and with their help brought me to
the hospital. I have been married one and a half year ago.
They did not accept the marriage and that is the cause of
the trouble. Extract copy of New Barrackpore O.P. GDE No.
40 dt. 2-9-04."
He proved the dying statement of the victim marked as
"Exbt.-6". He arrested the appellant on the same day at 10.00
p.m. Remaining investigation was conducted by P.W. 15 (SI
Palash Chattopadhyay) who submitted the charge-sheet.
P.W. 17 (Dr. Sudipta Chatterjee) corroborated investigating
officer (P.W. 14) and stated he was present when the dying
declaration of Silpi Bose was recorded. He examined the patient
before her declaration and found she was conscious, alert and
cooperative. He made endorsement to that effect on dying
declaration recorded by police. He proved his endorsement
marked as "Exbt.-6/1".
P.W.18, Dr. Sobhan Kr. Das held post mortem on the body
of the deceased. He found the following injuries:-
"first and second degree burn injuries involving No.1
right lateral side of neck and right side of lower face and
portions under the chin
2. whole of the front of the chest and abdomen including
perineum excepting 4" x 4" area on hypo-gastric region
3. both of her limbs including axillae excepting lateral surface of
both arms and upper half of forearm
4. both the gluteal region(buttock)
5. both the thyes all around
6. upper 1/3rd of right leg with knee"
All the injuries noted above showing evidence of vital
reaction. Bases of burn injuries are congested with evidence of
ante mortem of blister formation at places. No other injuries could
be detected. Approx 65% of total body surface area were involved
in burn injury.
He opined death was due to burn injuries, ante mortem in
nature.
Analysis of the aforesaid evidence on record would show
the prosecution case is primarily rested on the dying declarations
of the victim lady. On 12.06.2005 appellant returned to his
residence at night. There was a quarrel between the couple. In
course of quarrel, he assaulted his wife and thereafter poured
kerosene oil and set her on fire. He prevented her from going out
but somehow she escaped and in burnt condition fell in front of a
nearby lodge viz. Ranikuthi Lodge. Local people including P.W. 7
assembled at the spot. P.W. 7 (Lakshmirani Halder) stated the
victim disclosed that the appellant had set her on fire. Thereafter
the victim was taken in a van rickshaw to her parent's residence.
In front of her parents (P.Ws. 1 and 2) and her sister (P.W. 4) she
again made a statement implicating the appellant. In view of such
disclosure her parents initially took her to New Barrackpore
outpost and thereafter she was taken in a municipal ambulance
driven by P.W. 11 to R. G. Kar hospital. At the hospital Dr.
Acharya (P.W. 16) treated her and recorded her dying declaration
marked as "Exbt.-11". On the next day, her statement was again
recorded by the investigating officer (P.W. 14) in presence of Dr.
Sudipta Chatterjee (P.W. 17) who endorsed on the declaration that
the victim was conscious and in a fit state to make the statement.
All dying declarations are consistent with one another and
clearly implicate the appellant as the person who had poured
kerosene oil and set her on fire.
Ms. Patel, learned Counsel for the appellant has assailed
the dying declarations on the ground neither wife of the landlord
(P.W. 6) nor any neighbour had heard quarreling between the
couple on the fateful night. It is also contended the declarations
were made on the prompting of the parents and police. No injury
apart from burn injuries was noted either by the treating doctors
or did the post mortem doctor (P.W. 18) improbabilising assault
on the victim.
I am unable to accede to any of the aforesaid contentions.
From the tenor of the dying declaration it appears that the
appellant had beaten the victim and thereafter set her on fire. It
is nobody's case that the appellant had beaten her with a heavy or
sharp cutting weapon which would result in external or internal
injuries. It is possible that the victim was physically beaten and
thereafter set her on fire. Due to burn injuries marks of physical
assault, if any, may not have been detected. Hence, I am unable to
accept the submission that the dying declaration of the victim
lady is at variance with the medical evidence on record.
The incident occurred late at night and the neighbours
may have gone to sleep. As per dying declaration appellant had
returned home and started beating his wife. When she resisted he
had poured kerosene oil and set her on fire. Under such
circumstances, it may not have been possible for the victim to cry
out loudly before she escaped from the clutches of the husband
and ran out on the road and fell before a nearby lodge. In this
backdrop, failure of the neighbours to hear the initial quarrel
between the couple before the victim come out of the house and
fell in front of the lodge does not improbabilise the dying
declaration.
First oral dying declaration was made in front of P.W. 7
even prior to the victim reached her parental home. In such view
of the matter it is absurd to suggest that the declaration made by
the victim implicating the husband was at the behest of her
parents or police. It was a most natural expression of the dying
lady to come out with the cruel acts of her husband which
resulted in her ultimate demise.
Finally it is argued the appellant was not at home and had
accompanied the victim in burnt condition from Ranikuthi lodge
to her parental home. Subsequently he was falsely implicated in
the case. Apart from a raising a bald plea of alibi appellant has
not led any evidence in support of such plea. He did not adduce
defence evidence to show where he was at the time when the
incident occurred. On the other hand, his presence at the place of
occurrence is probabilised by his availability at Ranikuthi Lodge
soon after the incident. In view of the statement made by the
victim in presence of the neighbours implicating her husband,
appellant had no chance to escape and meekly accompanied the
victim to her parental home. Such conduct of the appellant was
clearly under compulsion and duress and cannot be treated as an
ameliorative step which would wash away his culpability.
As discussed above, dying declarations of the victim are
clearly consistent and corroborative of one another. They have
been proved to be voluntarily truthful and were made when the
victim was conscious and in a fit state to make the statement.
They do not suffer from inherent improbability or gross
embellishment. Hence, dying declarations are wholly truthful and
can form the basis of conviction of the appellant.
In the light of the aforesaid discussion, I uphold the conviction
and sentence of the appellant.
The appeal is, accordingly, dismissed.
Period of detention suffered by the appellant during
investigation, enquiry and trial shall be set off against the substantive
sentence imposed upon him in terms of Section 428 of the Code of
Criminal Procedure.
Appellant has already undergone seventeen years of actual
imprisonment. From the evidence on record it appears that quarrels
used to erupt between the couple due to abject poverty. Though the
conduct of the appellant in setting the victim on fire his a heinous one,
his criminal act does not show potentiality to recidivism. In the event
the appellant makes an application for remission under section 432
read with section 433A of the Code of Criminal Procedure before the
appropriate Government, the said Government shall consider his
application in the light of the aforesaid circumstances and other
relevant factors including his conduct in the Correctional Home.
Let a copy of this judgment along with the lower court records
be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be
made available to the appellant upon completion of all formalities.
I agree.
(Ananya Bandyopadhyay J.) (Joymalya Bagchi, J.)
cm/sdas/PA
