Parimal Mondal vs The State Of West Bengal
2023 Latest Caselaw 128 Cal

                 IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE
Present:-

HON'BLE JUSTICE CHITTA RANJAN DASH
              AND
HON'BLE JUSTICE PARTHA SARATHI SEN

                          C.R.A. No. 406 of 2006

                            Parimal Mondal
                               -Versus-
                       The State of West Bengal


      For the Appellant       : Mr. Partha Sarathi Bhattacharyya, Adv.
                              : Ms. Swarnali Saha, Adṿ.
      For the State           : Mr. Partha Pratim Das , Adv.
                                   Ms. Manasi Roy, Adv.

      Last Heard on            :       20.12.2022
      Judgment on              :       05.01.2023

PARTHA SARATHI SEN, J. : -

1.

In this appeal the judgement of conviction and order of sentence

dated 17.03.2006 as passed by learned Additional Sessions Judge, 2nd

Fast Track Court, Alipore, South-24-Parganas in Sessions Trial no.6(3)04

arising out of Sessions Case No.43(7) of 2003 in a case under Sections

498A/304B/302 IPC has been assailed. By the impugned judgement,

learned trial court found the accused guilty under Section 302/498A IPC

and thus, sentenced him to suffer rigorous imprisonment for life and to

pay a fine of Rs. 2000/- for the offence committed by him under Section

302 IPC. However, the said trial court did not pass any separate sentence

for the offence committed by him under Section 498A IPC. The appellant

felt aggrieved and thus preferred the instant appeal.

2. For effective disposal of the instant appeal the facts leading to

initiation of the aforesaid sessions trial is required to be dealt with in a

nut shell.

3. One Shri Manya Naskar of P.O Jadarat, P.S Baruipur, South-24-

Parganas lodged a written complaint dated 20.09.2002 with the Officer-

in-Charge, Baruipur Police Station stating, inter alia, that on 01.08.2002

corresponding to Shravan 15, 1409 BS the marriage of her third daughter

Tapati Mondal, aged about 18 years was solemnized with one Parimal

Mondal of village Jatimpur, P.O Jatimpur, P.S Basanti, Dist. South-24-

Parganas, presently of Kalyanpur, P.S Baruipur, a tenant of Palan

Chandra Mondal, as per Hindu Rites and Customs. It is the further

version of the said informant that after marriage, his said daughter and

her husband started residing together at Kalyanpur. It is his further

version that on 19.09.2002, he came to learn that his son-in-law set fire

by pouring kerosene oil on the person of his said daughter. It is his

further version that after going to Baruipur Hospital, he noticed that his

daughter was ablazed and as per the advice of the attending doctor of the

said hospital, his said daughter was transferred to M.R Bangur Hospital

for better treatment where she succumbed to her burn injuries. In his

written complaint, the informant had also disclosed that his said son-in-

law, the appellant herein, used to torture his said daughter for demand of

dowry.

4. On the basis of such written complaint Baruipur P.S Case no.133

dated 20.09.2002 under Sections 498A/304 IPC was started.

Investigation was taken up and on completion of the same charge sheet

was submitted under Sections 498A/304 B/302IPC against the present

apellant. After commitment, the said case was transferred to the learned

trial court for trial and disposal. Learned trial court on perusal of the

entire materials as placed before him framed charges under Sections

498A/304B alternatively 302 IPC as against the accused Parimal Mondal,

the appellant herein. Since the appellant pleaded his innocence and

claimed to be tried, the trial proceeded.

5. The trial court record reveals further that in order to bring home

the charges as framed against the accused, the prosecution has examined

as many as 18 witnesses in all and several documents have been

exhibited on their behalf. It further reveals to us that the learned trial

court on appreciation of the evidence as adduced by the prosecution

witnesses, both oral and documentary, passed the impugned judgement

and order which has been assailed before this Court by filing the instant

appeal.

6. Mr. Pratha Sarathi Bhattacharyya, learned advocate for the

appellant in course of his argument at the very outset took us to the

impugned judgement. Attention of this Court is also drawn to the oral

evidence of the prosecution witnesses; more specifically the evidence of

PW3, being the landlord of the present appellant, PW6 and PW7 being the

mother and brother respectively of the victim, PW11 being the doctor of

Baruipur Sub Divisional Hospital, PW12 being the nurse of the said sub

Divisional Hospital , PW18 i.e. the Autopsy Surgeon, who conducted the

post mortem over the dead body of the victim and PW16 being the

Investigating Officer of the said case. It is strenuously contended by him

that learned trial court has miserably failed to assess the evidence of the

prosecution witnesses in its proper perspective. It is contended by him

that while passing the impugned judgement, learned trial court ought not

to have placed much reliance upon the evidence of PW11 and PW12. It is

further argued by Mr. Bhattacharyya that while passing the impugned

judgement learned trial court has failed to appreciate the established

principles for acceptance of an oral dying declaration. It is further

submitted by him that learned trial court had wrongly interpreted the

provision of Section 106 of the Evidence Act and thus put an unnecessary

burden over the present appellant to explain as to how the death of the

deceased occurred. It is thus submitted that it is a fit case for allowing the

instant appeal by setting aside the impugned judgement and order.

7. Mr. Partha Pratim Das, learned advocate, duly assisted by his

junior Ms. Manasi Roy, learned advocate for the State, however contended

that learned trial court is very much justified in passing the impugned

judgement. It is further argued by him that the propositions of the

provisions of Sections 32(1) and 106 of the Evidence Act have been rightly

applied by the learned trial court. It is further argued that considering the

oral evidence of PW11 and PW12, learned trial court is very much justified

in passing the judgement of conviction and order of sentence based on the

dying declaration of the deceased. It is thus submitted that it is a fit case

for dismissal of the instant appeal.

8. We have minutely gone through the entire materials as placed

before us. We have also given our due consideration over the submissions

of the learned advocates for the contending parties.

9. For effective disposal of the instant appeal, we shall confine our

discussion with regard to those prosecution witnesses which are material

in our estimation for disposal of the instant appeal. In the impugned

judgement, learned trial court has come to a finding that the death of the

victim is not natural. In order to assess as to whether learned trial court

is at all justified or not, we propose to look to the evidence of PW18 i.e.

the doctor who conducted post mortem over the person of the deceased,

who in his examination-in-chief expressed the following:-

" on superficial examination and dissection I found,- extensive first and second degree burn over scalp hair with singing of hairs, forehead eyelashes, eyebrows ,eyelids with singing of hairs, nose lips chin cheeks both ears and all other parts of the face, neck as a whole , chest wall as a whole including both breast and nipple and both axela, abdominal wall as a whole including both flanks, lower extimity as a whole, over back of left thigh and leg, lateral part of left leg and back of right thigh , upper extimity as a whole back from the nape of neck to down both battacks.

The burn injuries having lying of redness, vesicle formation and black skin. The injuries showed evidences of vital reaction. Opinion:- Death in my opinion was due to the effect of extensive burn injuries as stated above antemortem in nature."

10. In view of such clinching evidence of PW 18 we have no hesitation

to hold that the death of the victim was not natural. However, in order to

assess as to whether the death of the victim was homicidal or not, a look

is necessary to the evidence of the other prosecution witnesses.

11. PW6 being the mother of the victim in course of her examination-in-

chief categorically stated that her deceased daughter Tapati Mondal told

her that she was tortured and assaulted by the present appellant i.e. the

convict on account of demand of dowry. It is her further version that the

convict Parimal Mondal murdered her daughter by setting fire on her

person. She also stated that her victim daughter was first admitted in

Baruipur Hospital and from there she was shifted to Bangur Hospital

where she succumbed to her injuries. She further stated that her victim

daughter disclosed to the medical officer that the present appellant

poured kerosene oil on her person and set fire thereafter.

In her cross-examination, PW 6 stated that after marriage, her

daughter and son -in-law used to reside in a tenanted accommodation

and PW 3 is their landlord and that she never visited such rented

accommodation. She further stated that she was not interrogated by the

Investigating Officer. In her cross-examination she stated further that at

Baruipur Hospital, she talked with her ablazed daughter where her

daughter disclosed to her that present appellant tortured and assaulted

her and set fire on her person.

12. PW7, being the brother of the victim also stated that his sister

Tapati Mondal was murdered by the present appellant by pouring

kerosene oil and thereafter set fire on her person. He also stated that he

went to hospital to see his said sister when she narrated that Parimal

Mondal set fire on her body and as a result she sustained burn injuries.

In course of his cross-examination he stated that he was not interrogated

by the Investigating Officer and that he is disclosing the aforementioned

version before the learned trial court for the first time i.e at the time of his

deposition.

13. On conjoint perusal of the evidence of PW 6 and PW7 it appears to

us that the evidence of PW6 and PW7 are not at all trustworthy. In her

examination-in-chief PW6 stated that her deceased daughter disclosed the

name of the culprit before the medical officer however, in cross

examination she had developed her said version stating inter alia; that

her injured daughter disclosed the name of the culprit before her.

Similarly PW7 also stated in his examination-in-chief that her injured

sister also disclosed the name of the culprit to him which gets no

corroboration from the evidence of PW6 especially when both the PW6 and

PW7 in their respective cross-examination stated that they were not

interrogated by the investigating officer in connection with the said case.

In our estimation, PW6 is not a truthful witness since in her cross

examination she stated that though she never visited the rented

accommodation of her married daughter and her son-in-law yet the

neighbouring people of the said rented accommodation disclosed to her

that her said daughter was tortured and assaulted by the present

appellant and on close scrutiny of the evidence of PW 3 i.e. landlord of the

victim and the present appellant vis-à-vis PW1 and PW2, we find no

corroboration with regard to such deposition of PW6.

14. Admittedly the learned trial court while passing the impugned

judgement put much reliance upon the evidence of PW 11 i.e. attending

doctor of Baruipur Rural Hospital and PW12; the attending nurse of the

self same sub divisional hospital. In view of such we consider it necessary

to go through the depositions of the PW11 and PW12.

15. PW11 in course of his examination-in-chief stated that at the

material time he was posted there as a medical officer. It is his further

version that if any serious patient comes for admission the same was

noted in the register and in case of admission in the hospital noting was

done in the bed head ticket. It is his further version in his examination-in-

chief that on the basis of the statement of the patient Smt. Tapati Mondal,

he had given an information to the Baruipur P.S in writing. (Exhibit 2).

16. In our considered view the written information given by PW11

under the cover of Exhibit 2 is also required to be looked into and the

same is reproduced hereunder in verbatim:-

"The O/C Baruipur P.S

Respected Sir, This is for your information that Mrs. Tapati Mondol , 16 years . W/o Parimal Mondol of vill. Kalyanpur, P.O. Kundarali P.S Baruipur, has been admitted on 19.9.02 at 3.45 A.M e h/o Burn(50%) * Kerosene sprinkled over her and subsequently fired her with matchstick by her husband as stated by the patient in the presence of on duty Nursing Staff & G.D.A Brought by (1) Haren Naskar (2) Husband.

Patient referred to M.R Bangur hosp.

Thanking You, Dr. Dibyendu Dutta Medical Officer Baruipur R. Hospital South-24-Parganas"

17. In her examination-in-chief PW12 being the nurse of the said

hospital stated that on 19.9.02, PW11 examined the injured lady Tapati

Mondal in her presence. It is her further version that the patient was then

in burnt condition and that the said patient told in her presence to PW11

that her husband set fire on her person for which she was burnt.

18. As discussed above learned trial court accepted the testimonies of

PW11 and PW12 as sacrosanct and thus pleased to hold that oral dying

declaration as alleged to have been given by the victim prior to her death

is admissible in evidence and based on the same, he recorded the

judgement of the conviction against the present appellant. In order to

decide as to whether the learned trial court is at all justified in placing his

credence over the testimonies of PW 11 and PW12 along with the alleged

oral dying declaration of the victim, a look to the provision 32 of the

Evidence Act is necessary:-

"32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant. --Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) when it relates to cause of death. --When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) ....

(3) ...

(4).....

(4) ...

(5)...

(6)...

(7)...

(8)..."

19. At this juncture, we also propose to look to the reported decision in

Parbin Ali and Another vs. State of Assam reported in (2013) 2 SCC

81 where the Hon'ble Supreme Court while dealing with the subject of

oral dying declaration expressed the following:-

" Before we proceed to scrutinize the legal acceptability of the oral dying declaration, we think it seemly to refer to certain decisions in regard to the admissibility and evidentiary value of a dying declaration. In Khushal Rao v. State of Bombay[1], Kusa v. State of Orissa[2] and in Meesala Ramakrishan v. State of A.P.[3], it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence.

13. In Ranjit Singh v. State of Punjab[4], it has been held that the conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts, in arriving at the judgment of conviction, shall look for some corroborating evidence. In this context, we may also notice the judgment in Nanhau Ram v. State of M.P.[5] wherein it has been stated that normally, the court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

14. While dealing with the evidence of the declarant's mind, the Constitution Bench, in Laxman v. State of Maharashtra[6], has laid down thus: -

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to

accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."

15. In this context, it will be useful to refer to the decision in Puran Chand v. State of Haryana[7] wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that the law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.

16. Regard being had to the aforesaid principles, we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman (supra) by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two- Judge Bench decision in Prakash and

another v. State of Madhya Pradesh[8] wherein it has been held as follows: -

"In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instance case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."

17. It is worthy to note that in the aforesaid case this Court had laid down that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration."

20. Keeping in mind the aforesaid legislative enactment and the

proposition of law as enunciated by the Hon'ble Supreme Court in the

case Parbin Ali (supra), it appears to us that there is no legal impediment

in accepting the oral dying declaration however, the veracity of such oral

dying declaration has to be properly weighed regard being had to the facts

and circumstances as involved in each case.

21. On perusal of the testimonies of the prosecution witnesses, it

reveals to us that immediately after the occurrence of the unfortunate

incident of burning, the victim was first taken to Baruipur Rural Hospital

wherein she is alleged to have given dying declaration before PW11 in

presence of PW12. It is to be kept in mind that PW11 is a doctor of a

government hospital and PW12 is a nurse of the said hospital and

therefore it is expected that both PW11 and PW12 are well aware as to

how dying declaration are to be recorded. On close scrutiny over the

evidence of PW11 and PW12 vis-à-vis the other prosecution witnesses

nothing is forthcoming before us as to what prevented PW11 to make an

effort to record the dying declaration of the victim especially when he got

sufficient time to inform the incident to the police in writing under the

cover of Exhibit 2. It is pertinent to note herein that except Exhibit 2 i.e.

the information of PW11 to the O/C Baruipur P.S, no medical document

has been exhibited before the learned trial court to substantiate that the

victim was actually brought to the hospital wherefrom she was referred to

Bangur Hospital for better treatment especially when the PW11 in his

examination-in-chief stated that when a serious patient comes for

admission, it is the practice to note in the relevant register. In the

previous portion of our judgement, we have quoted the findings of the

doctor who conducted autopsy over the person of the deceased from

where it reveals that the victim suffered extensive first and second degree

burn over scalp hair with singing of hairs, forehead eyelashes, eyebrows,

eyelids, etc. extending to neck, chestwall both of her breasts, both axela,

substantial portion of left and right thigh and leg. Such being the

quantum and depth of injury, a serious suspicion arose in our mind as to

what prevented PW11 i.e. the doctor of Baruipur Rural Hospital to give

his finding with regard to the consciousness and ability of the patient to

give her dying declaration.

22. In view of the discussion made herein above, we are of considered

view that the learned trial court while passing the impugned judgement

ought not to have placed much reliance upon the evidence of PW11 and

PW12 vis-à-vis upon the alleged oral declaration of the deceased.

23. As discussed above, learned trial court while passing the impugned

judgement came to a finding that since the present appellant has failed to

explain as to how smell of kerosene was coming out from the mosquito

net and as to why the bottle of kerosene oil was found in the room of the

accused as evident from the seizure list vide Exhibit 1 and 2 it can be

inferred that it is none but the accused only who sprinkled kerosene oil

over the victim and set fire on her person.

24. In considered view of us, the finding of the learned trial court is not

at all justified in view of the fact, none of the prosecution witnesses has

stated that at the time of fire, the accused was present in the bedroom of

the victim nor any question in this regard has been put to the present

appellant in his examination under Section 313 CrPC. In view of such, we

hold that the learned trial court has misinterpreted the provision of

Section 106 of the Evidence Act in the facts and circumstances as

involved in this case.

25. In view of the discussion made herein above, we thus find sufficient

merit in the instant appeal and accordingly the instant appeal is allowed.

As a result, the impugned judgement and order dated 17.03.2006 as

passed by learned Additional Sessions Judge, 2nd Fast Track Court,

Alipore, South-24-Parganas, in Sessions Trial no.6(3) of 2004 arising out

of Sessions Case No.43 (7) of 2003 is hereby set aside.

26. The appellant Parimal Mondal be set at liberty at once, if not

wanted in connection with any other case.

27. Department is hereby directed to send a copy of this judgement to

the Superintendent, Alipore Central Correctional Home, forthwith.

28. Department is further directed to send another copy of this

judgement to the Secretary, District Legal Service Authority, Alipore,

South-24-Parganas with a direction to him to forward the copy of this

judgement to the concerned Superintendent of the Correctional Home,

where the present appellant is detained now.

29. Department is further directed to send down the trial court record

along with a copy of this judgement at the earliest.

30. Urgent Photostat certified copy of this judgement, if applied for, be

given to the parties on completion of usual formalities.

I agree.

(Chitta Ranjan Dash, J.) (Partha Sarathi Sen, J.)