Calcutta High Court (Appellete Side)
Buddha Pradhan vs The State Of West Bengal on 15 November, 2022
ML. Sl. No.123
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 522 of 2011
Buddha Pradhan
-Vs-
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharyya, Adv.
Ms. Swarnali Saha, Adv.
For the State : Mr. Parthapratim Das, Adv.
Mrs. Manasi Roy, Adv.
Heard on : 15.11.2022
Judgment on : 15.11.2022
Joymalya Bagchi, J. :-
Appeal is directed against judgment and order dated 29.07.2011
& 30.07.2011 passed by learned Sessions Judge, Darjeeling in Sessions
Case No. 33 of 2008 convicting the appellant for commission of offence
punishable under Section 302 of the Indian Penal Code and sentencing
him to suffer rigorous imprisonment for life and to pay a fine of
Rs.2,000/-, in default, to suffer further rigorous imprisonment for one
year more.
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Prosecution case as alleged against the appellant is to the effect
that the appellant was married to the victim viz. Biruna Gurung. They
used to stay in the tea estate near Eden Hospital. On 06.08.2008, in the
night, there was a quarrel between the couple. In the course of quarrel,
the appellant poured kerosene oil on his wife and set her on fire. Local
people shifted the victim to hospital. In the hospital, the victim made
statement before Shri Augustine Lepcha, Deputy Magistrate (PW15)
implicating her husband. While the victim was struggling for life, brother
of the victim (PW9) viz. Sangeet Gurung lodged written complaint
resulting in registration of Darjeeling Sadar Police Station Case No.90 of
2008 dated 07.08.2008 under Sections 326/307 of the Indian Penal
Code. Upon her death, Section 302 IPC was added. In conclusion of
investigation, charge-sheet was filed and charge was framed under
Section 302 IPC against the appellant. In course of trial, prosecution
examined 18 witnesses to prove its case. Defence of the appellant was
one of innocence and false implication.
In conclusion of trial, learned trial Judge by the impugned
judgment and order dated 29.07.2011 & 30.07.2011 convicted and
sentenced the appellant, as aforesaid.
Mr. Partha Sarathi Bhattacharyya, learned advocate for the
appellant submits that son of the victim lady (PW4) viz. Ashis Pradhan
did not support the case of homicide. Staff nurse (PW14), who was
present at the time of recording statement, stated victim was unable to
speak properly. Even if the prosecution case is believed, it appears there
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was a sudden quarrel and the appellant had acted without pre-
meditation and in a fit of rage. Hence, conviction under Section 302 IPC
has not been proved.
Mr. Parthapratim Das, learned advocate for the State argues
Ashis Pradhan, son of the victim is a tutored witness. His version in
Court is at variance to his statements to police and Magistrate. Hence,
no credence ought to be given to his deposition. Immediately after the
incident, victim made oral dying declaration to neighbours viz. PWs.3, 5,
6, 7 & 17. In the hospital, her statement was recorded before a
Magistrate. Dying declarations have been proved beyond doubt and
clearly establish the culpability of the appellant.
I have considered the evidence on record in the light of the rival
submissions of the parties.
PW3 (Smt. Parmika Chettri), PW5 (Smt. Geeta Chettri), PW6
(Smt. Binita Chettri), PW7 (Md. Kaish) and PW17 (Smt. Geeta Gurung)
are neighbours of the couple.
All the witnesses stated hearing hue and cry, they came to the
spot and found the victim had suffered burn injuries. The victim told
them that her husband had poured kerosene oil on her and set her on
fire. Subsequently, the victim was shifted to Eden hospital. On
07.08.2008
, in the hospital, she made a statement before Shri Augustine
Lepcha, Deputy Magistrate (PW15) attached to District Magistrate's
office, Darjeeling. The said witness stated that the victim told him
around 11:30 P.M. there was a verbal argument between herself and her
husband. Suddenly, her husband poured kerosene oil on her body and
set her on fire. As a result, she suffered burn injuries. Her dying
declaration was recorded in presence of Dr. Nausaba Siddique (PW11)
and Smt. Bandhana Tamang (Lama) (PW14). Dying declaration of the
victim has been marked as Ext.5.
Dr. Siddique deposed that the patient was mentally alert and
conscious at the time when she gave the statement. She also proved her
signature on the dying declarations (Exts. 5/1 and 5/2). Staff nurse
(PW14) of the hospital was also present during the recording of the dying
declaration and proved her signature thereon (Ext. 5/3).
PW16 (Dr. Sabita Rongong) is the post-mortem doctor. She found
the following injuries :-
'60% deep burn injury including whole face, ears, whole chest,
upper abdomen upto naval, back upto buttocks and both arms
including hands.
Cut injury right leg above ankle. Four stitches given. Reddish marks,
bruise along right leg, fracture left parietal region of scalp.'
She opined death was due to 60% burn injuries. She proved the post-
mortem report (Ext.7).
From the aforesaid evidence it appears the oral as well as the
written dying declarations of the victim recorded in the hospital have
been proved beyond doubt. Dying declaration of the victim (Ext.5) was
recorded by a Deputy Magistrate in presence of a medical officer. The
medical officer stated that the victim was conscious and mentally alert
when she made the statement. In view of such convincing evidence on
record, a stray observation by the staff nurse (PW14) that she was
unable to speak properly is of little relevance.
Mr. Bhattacharyya has strenuously argued that the dying
declaration is not truthful. In support of his contention he refers to the
deposition of the son of the deceased (PW4) viz. Ashis Pradhan. Ashis in
his deposition stated he was sleeping on the sofa at night. There was a
quarrel between his parents. His father went to the kitchen, brought out
kerosene oil and poured it on his mother. He tried to light a match stick
but failed. Then his father hit his mother on the head with a beam. His
mother exclaimed whether he wanted to burn her and both of them went
into the kitchen. His mother set herself on fire in the kitchen.
No doubt the aforesaid version is at variance with the dying
declarations.
Hence, I have made an endeavour to test the intrinsic truth of
the version of the minor child. On a holistic examination of his
statement in court against other materials on record, it appears the
same is a tutored one.
Other prosecution witnesses do not support PW 4.
Brother of the deceased and the de-facto complainant (PW9)
stated hearing that his sister had been severely burnt, he went to the
hospital. On enquiry from the stepson Ashis (PW4), he heard that
appellant had set his sister on fire.
That apart, the version of PW4 in Court regarding suicide by his
stepmother is at variance to his earlier statements to police and
Magistrate. Before the police, PW4 had supported the prosecution case
and told the Investigating Officer (PW18) that his father had poured
kerosene oil and set her mother on fire. He altered his version before the
Magistrate and stated upon entering the kitchen his mother tried to light
the cooking oven when she caught fire.
From the aforesaid evidence on record it is clear PW4 had
changed his stance with regard to the incident at various stages. Before
the police, he claimed that his father had set his mother on fire.
Thereafter, before Magistrate he claimed that his mother suffered burns
while trying to light the cooking oven and finally in court he came with a
case of suicide. It is patently clear PW4 is an untruthful witness and in
all probability has been tutored by his father to give a false version with
regard to the cause of death of his stepmother.
For the aforesaid reasons, I am of the view PW4 is an
untrustworthy witness.
On the other hand, the written dying declaration (Ext.5) recorded
by PW15 finds corroboration from the deposition of neighbours viz.
PWs.3, 5, 6, 7 & 17, who stated in unison that the victim had told them
that her husband had poured kerosene oil and set her on fire.
Post-mortem doctor noted burn injuries in addition to physical
assault upon the deceased corroborating the dying declarations. Hence,
the dying declaration of the victim appears to be voluntary and truthful
and can be relied upon to record a finding of guilt against the appellant.
Finally, it is argued that the incident occurred in course of a
quarrel. Appellant did not intend to murder the deceased.
I am unable to accede to this submission of Mr. Bhattacharyya
too. Initially, appellant assaulted the deceased. He hit her with such
force that she suffered fracture on the skull. He did not stop at that.
Thereafter, he poured kerosene oil and set her on fire. This conduct of
the appellant leaves no doubt in my mind that he intended to murder
his wife and his conviction ought not to be converted from murder to
culpable homicide.
In the light of the aforesaid discussion, I uphold the conviction
and sentence imposed upon the appellant.
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.
Appeal is accordingly dismissed.
Appellant has served more than 14 years of incarceration. He
does not have criminal antecedents. Though he has assaulted his wife
and set her on fire, evidence has also come on record that there was a
quarrel between the couple. In the event, the appellant makes an
application for remission of sentence under Section 433A of the Code of
Criminal Procedure, the appropriate authority shall take into
consideration the aforesaid circumstances in addition to his conduct in
the correctional home while considering such application in accordance
with law.
Lower court records along with a copy of this judgment be sent
down at once to the learned trial Court for necessary action.
Photostat certified copy of this order, if applied for, be given to
the parties on priority basis on compliance of all formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
akd/PA
