Shovan Saha @ Santa vs The State Of West Bengal
2023 Latest Caselaw 2369 Cal

Sl. No. 70




                IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL APPELLATE JURISDICTION
                            APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                    And
The Hon'ble Justice Partha Sarathi Sen


                               C.R.A. 304 of 2018
                     CRAN 1 of 2019 (Old No. CRAN 4107 of 2019)

                               Shovan Saha @ Santa
                                       -Vs-
                              The State of West Bengal


For the Appellant         :      Mr. Sabir Ahmed, Adv.
                                 Mr. Gouranga Kumar Das, Adv.
                                 Mr. Kanaylal Dutta, Adv.
                                 Mr. Abdur Rakib, Adv.
                                 Mr. Biswajit Sarkar, Adv.
                                 Ms. Suman Biswas, Adv.
                                 Mr. Dhiman Banerjee, Adv.
                                 Mr. Soham Chakraborty, Adv.

For the State             :      Ms. Zareen N. Khan, Adv.
[in CRA 304/2018]                Mr. Arup Sarkar, Adv.

For the State             :      Mr. Saibal Bapuli .. ld. A.P.P.
[in CRAN 1/2019]                 Mr. Bibaswan Bhattacharya, Adv.


Heard on                  :      03.04.2023, 05.04.2023 & 10.04.2023


Judgment on               :      10.04.2023


Joymalya Bagchi, J. :-

1.

Appeal is directed against judgment and order dated 25.04.2018

and 26.04.2018 passed by learned Additional Sessions Judge, 4 th Court,

Krishnagar, Nadia in Sessions Trial No. 01(01) of 2015 arising out of

Sessions Case No.24(12) of 2014 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.10,000/-, in default, to suffer simple imprisonment for

three months more.

2. Prosecution case as alleged against the appellant is as follows :-

Sumi Laha @ Puja (the deceased) was a 14-years old girl. She had a love

affair with the appellant, a neighbour. In the evening of 13.09.2014

Sumi was alone at her residence. Her mother viz. Runu Laha (PW1) had

gone to attend puja at a nearby house. Her father viz. Sujit Laha (PW9)

was also outside. While Runu was at the puja, she was informed that

her daughter had suffered burn injuries. She rushed to her residence.

She found her daughter with burn injuries. Local people viz. Amit

Kumar Dutta (PW6), Kartick Sutradhar (PW7) and Liton Pramanick

(PW8) were present. They informed they had entered the room after

unlocking the door. She asked her daughter why she had done this to

herself. In response, her daughter stated appellant had set her on fire.

Victim was taken to Debagram Health Centre. Due to lack of medical

facility, she was referred to Krishnagar Hospital. Immediately after

admission she expired. Written complaint was lodged by Runu at

Debagram ROP resulting in registration of Kaliganj Police Station Case

No.545 of 2014 dated 14.09.2014 under Section 302 of the Indian Penal

Code and Section 18 of the POCSO Act against the appellant.

3. In course of investigation, appellant was arrested. Charge was

framed under Section 302 of the Indian Penal Code. Appellant pleaded

not guilty and claimed to be tried.

4. During trial, prosecution examined 18 witnesses and exhibited a

number of documents to prove its case. Defence of the appellant was

one of innocence and false implication.

5. In conclusion of trial, learned trial Judge by the impugned

judgment and order dated 25.04.2018 and 26.04.2018 convicted and

sentenced the appellant, as aforesaid.

6. Mr. Sabir Ahmed, learned Advocate for the appellant submits

there is no direct evidence implicating the appellant in the murder. None

of the local witnesses viz. PWs. 6, 7 & 8 saw the appellant near the place

of occurrence. Oral dying declaration relied by the prosecution has not

been proved beyond doubt. PWs.7 & 8 were present when the victim is

said to have made oral statement to her mother (PW1). They did not

speak of any dying declaration to PW1. The fact that victim told her

father (PW9) not to spare the appellant while she was being taken to

hospital is absent in the FIR. PW8, who accompanied the victim to

hospital, has also not supported the prosecution case in this regard.

Hence, the prosecution case suffers from various lacunae and has not

been proved beyond doubt. Appellant is entitled to the benefit of doubt.

7. In rebuttal, Ms. Zareen N. Khan, learned Advocate for the State

submits PW1 deposed her daughter made dying declaration to her. This

fact is stated in the FIR and corroborated by PW6. PWs. 6, 7 & 8 also

stated the door of the room was bolted from outside. This improbabilises

a case of suicide. Appellant had a love affair with the victim. He also had

close relationship with other women including PW13. This gave motive

to the appellant to commit the crime. Accordingly, prosecution case is

proved beyond doubt.

8. PW1 (Runu Laha) is the mother of the victim and the de-facto

complainant. She deposed she had gone to the house of a neighbour to

take prasad of 'Graha Raj Thakur'. Her 14-year old daughter Sumi Laha

@ Puja was studying in the house. A person from the locality informed

her that her daughter was burning. She came to the house. When she

enquired of her daughter, the latter told her Santa had set her on fire.

She was taken to Debagram Health Centre. The Health Centre did not

admit her. Thereafter, with the assistance of Liton Pramanick (PW8) her

daughter was taken to Shaktinagar hospital in a private car.

Immediately after admission at Shaktinagar hospital, Sumi Laha @ Puja

died. PW1 lodged written complaint. She proved her signature on the

complaint. She made statement before Magistrate.

9. PW9 (Sujit Laha) is the father of the deceased. He deposed on the

fateful day he was gossiping with one Santu Majumder. He heard from a

passer-by that his daughter had been burnt. He rushed to his house. He

found his daughter lying with burn injuries. He took his daughter to

Debagram Rural Hospital but there was no medical officer. Then they

took her to Shaktinagar Hospital with the assistance of Liton Pramanick

(PW8). On the way to the hospital, his daughter requested him and his

wife to punish Santa. Immediately after admission, his daughter died.

10. PWs.6, 7 & 8 are neighbours.

11. PW6 (Amit Kumar Dutta) deposed he has a fast food centre

opposite to the house of Sumi Laha @ Puja. He heard cries from her

house. Rushing to the spot he found the door of the room bolted from

outside. They opened the room and found Sumi Laha @ Puja lying with

burn injuries. Her mother came to the spot. Sumi stated Santa had set

her on fire. He made statement before Magistrate.

12. PW7 (Kartick Sutradhar) deposed he has a furniture shop in the

locality. In the evening Sumi's mother came to the shop and was talking

to him. At that time he heard shouting from their house. He went to the

house along with Amit and Liton. The door was bolted from outside. As

per direction of Amit, door was opened. Sumi was found in the room in

burnt condition.

13. PW8 (Liton Pramanick) corroborated PW7. In addition, he stated

he accompanied Sumi's mother to Shaktinagar Hospital in a Maruti van.

After admission in hospital, Sumi died. PW8 was declared hostile.

During cross-examination, he denied the suggestion that he told the

police that Sumi while being taken to hospital had stated something to

her parents.

14. PW10 (Dr. Ajit Kr. Biswas) is the post-mortem doctor. He opined

victim had died due to shock resulting from extensive ante mortem burn

injuries. He stated cause of death depends on circumstantial evidence.

He proved the post-mortem report.

15. PW13 (Runa Laila) deposed she knew the appellant who was the

son of her mother's friend. 4-5 months ago she had made a phone call to

Santa on his mobile phone. Santa did not receive the call. Thereafter,

she received 3-4 missed calls from the said phone. She called back.

Sumi received the call. PW13 had a talk with her. Therefter, Sumi

disconnected the phone. Sumi told her the cell phone did not belong to

Santa but to her. During investigation, she handed over the mobile

phone to police. She made statement before Magistrate.

16. PW16 (SI Suprabhat Roy Chattopadhyay) is the Investigating

Officer. He deposed on 13.09.2014 in the evening he received

information regarding burning in the house of Sujit Laha. He diarised

the information (GDE No. 459 dated 13.09.2014) and proceeded to the

spot. He received information Sumi Laha @ Puja, daughter of Sujit Laha

had received burn injuries and had been admitted to Debagram BPHC.

He seized burnt wearing apparel of Sumi Laha @ Puja, one bottle

containing kerosene, one lighter and one black mobile phone under a

seizure list. Raj Kumar Saha (PW2) is the witness to the seizure. He also

seized exercise book written by Sumi. From the aforesaid materials he

suspected involvement of the appellant. Thereafter, PW1 lodged written

complaint. He again proceeded to the place of occurrence. He arrested

the appellant. He seized the mobile phone of the appellant. He recorded

statements of witnesses under Section 161 of the Code of Criminal

Procedure. He submitted charge sheet.

17. PW17 (ASI Arindam Sen) was posted as O/G, Special Operation

Group at SP Headquarters, Nadia. He received requisition from PW16

with regard to the call details of the mobile phones. But Call Detail

Records have not been proved.

18. PW14 (Krishna Kanta Agarwal) and PW15 (Sukanta Banerjee)

deposed they carried on business as retailers/distributors of SIM cards

of Aircel company. A SIM card bearing No. 7031235875 was distributed

through them.

19. Analysis of the evidence on record would show there was a love

affair between the appellant and Sumi Laha @ Puja. Exercise book

written by the hand of Sumi Laha @ Puja was seized from the place of

occurrence. She had expressed her love for the appellant in her own

handwriting. Investigating Officer (PW16) deposed the call detail records

showed telephonic conversations between the two. Unfortunately, call

detail records though collected during investigation were not proved. As

a result, prosecution has not been able to establish there was telephonic

conversation between the appellant and the victim on the date of

occurrence.

20. There is also no evidence on record that the appellant was seen

in and around the residence of Sumi Laha @ Puja in the evening of

13.09.2015. Appellant was a local boy. PWs.6, 7 & 8 had shops in the

locality. All of them knew the appellant. None of them deposed that the

appellant was seen in and around the residence.

21. Evidence has come on record that the room where the deceased

was found with burn injuries was bolted from outside. But in the

absence of ocular evidence that the appellant was seen in and around

the place of occurrence, it would be incorrect to infer that it was the

appellant who had entered the room and after committing the crime had

bolted the room and left.

22. Only evidence on which the prosecution hinges its case is the

oral dying declaration purportedly made to the parents viz. PWs.1 & 9.

PW1 claimed she had gone to the residence of a neighbour to attend

puja. Being informed by a local shop owner that her daughter was

burning she rushed home. When she arrived local people viz. PWs.6, 7 &

8 had already assmbled at the place of occurrence. She enquired from

her daughter why she did this to herself. She stated appellant had set

her on fire. PW6 has a shop infront of the house of the victim. He

corroborated the oral dying declaration made by Sumi but the other two

witnesses viz. PWs.7 & 8 who as per PW1 were also present at the spot

are silent with regard to the dying declaration.

23. PW7 deposed PW1 was talking with him in his shop when he

heard cries 'save me, save me' from the house. Thereafter, he rushed to

the house and PW6 unbolted the door. Victim was found with burn

injuries. The aforesaid evidence shows this witness was present at the

spot when PW1 claims the dying declaration was made. He is silent with

regard to the making of the so-called dying declaration. It may be

pertinent to note this witness has not been declared hostile.

24. PW8 who was also present at the spot did not support the

prosecution case that Sumi made dying declaration to her mother (PW1).

Ms. Khan contended that the said witness was declared hostile. During

his cross-examination by prosecution no question was put to the

witness that he had stated to police about the oral dying declaration

made at the place of occurrence to PW1. The witness was only

confronted with regard to the incident which took place while the victim

was being carried to the hospital and nothing more.

25. Evidence of PWs.7 & 8 is at variance to the evidence of PWs.1 & 6

with regard to the oral dying declaration to PW1 at the place of

occurrence. When prosecution witnesses speak in different voices with

regard to the most vital piece of evidence that is, the oral dying

declaration and the prosecution is unable to explain such dichotomy,

one would be constrained to hold the said circumstance has not been

proved beyond doubt.

26. Before relying on a dying declaration the prosecution must prove

the declaration beyond doubt.

27. While PWs.1 & 6 deposed the victim made an oral dying

declaration, PWs.7 & 8 are completely silent and have not supported the

prosecution case on this score. Prosecution is a divided house on this

vital issue and it cannot be said that the oral dying declaration has been

proved beyond doubt.

28. Even her father (PW9) is silent with regard to the oral dying

declaration made to her mother (PW1) at the place of occurrence. He

states that his daughter while going to Shaktinagar Hospital had stated

that the appellant be punished.

29. This fact is significantly absent in the FIR recorded by the mother

soon after the incident. Admittedly, mother of the victim was also

present in the car. Absence of this vital information in the FIR gives an

impression that this circumstance was subsequently introduced to

embellish the prosecution case. Hence, I am unwilling to rely on the

aforesaid circumstance also to record a finding of guilt against the

appellant.

30. On the other hand, materials seized at the place of occurrence

include a bottle containing kerosene and a lighter. It is difficult to

assume that the appellant after setting the victim on fire would keep the

lighter at the place of occurrence and leave particularly when it is

alleged that the offender had taken care to bolt the door from outside.

This state of affairs give rise to an ambivalent situation and the

prosecution is unable to clear the cobwebs of doubt with regard to the

nature and circumstances leading to the death of the victim.

31. Even the motive to commit crime is vague and has not been

clearly established. PW13 did not support the prosecution case and

merely stated that she had a conversation with the victim. Considering

the totality of the circumstances even if it is assumed that the victim

had a tiff with the appellant due to his association with other women,

this cannot invariably lead to a case of homicide.

32. It is argued that the door of the room was bolted from outside. As

discussed earlier none of the witnesses had seen the appellant in and

around the place of occurrence. Oral dying declaration implicating the

appellant is based on shaky foundation and is not corroborated by some

of the prosecution witnesses viz. PWs. 7 & 8, one of whom had not been

declared hostile.

33. In the light of the aforesaid evidence on record, it cannot be said

that it was none but the appellant who had set the victim on fire and

caused her death. Hence, the appellant is entitled to the benefit of

doubt.

34. The appeal is accordingly, allowed.

35. In view of disposal of the appeal, the connected application being

CRAN 1 of 2019 (Old CRAN No. 4107 of 2019) is also disposed of.

36. Appellant shall be forthwith released from custody, if not wanted

in any other case, upon execution of a bond to the satisfaction of the

trial Court which shall remain in force for a period of six months in

terms of Section 437A of the Code of Criminal Procedure.

37. Lower court records along with a copy of this judgment be sent

down at once to the learned trial Court for necessary action.

38. Photostat certified copy of this judgment, if applied for, be given

to the parties on priority basis on compliance of all formalities.

I agree.

(Partha Sarathi Sen, J.)                           (Joymalya Bagchi, J.)




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