Amit Naskar vs State Of West Bengal
2023 Latest Caselaw 1679 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
                          CRA 357 OF 2021
                             Amit Naskar
                                  VS.
                         State of West Bengal

For the Appellant : Mr. Partha Pratim Das


For the State    : Ms. Anasuya Sinha
                   Ms. Subasree Patel
Heard on         : January 30, 2023, March 14, 2023 and March 15, 2023.
Judgment on      : March 15, 2023


DEBANGSU BASAK, J.:-

1.

The appeal is directed against the judgment of conviction

dated February 20, 2020 and the order of sentence dated

February 24, 2020 passed by the learned Additional Sessions

Judge, Fast Track Court No.1, North 24-Parganas in Sessions

Trial No.5(7) of 2017 arising out of Sessions Case No.347 of

2017.

2. By the impugned judgment of conviction, the appellant

was found guilty under Section 302 of the Indian Penal Code,

1860. The appellant was found not guilty of the charges

under Sections 498A/304B/326/307/201 of the Indian Penal

Code, 1860. By the impugned order of sentence, the appellant

was sentenced to suffer imprisonment for life and to pay a fine

of Rs.50,000/- and in default to suffer further rigorous

imprisonment for two years, if the fine remained unpaid. Both

the sentences were directed run concurrently.

3. A written complaint was lodged by prosecution witness

(PW) No.1 on December 7, 2016 relating to the death of three

persons. P.W.1 in the written complaint claimed that he got

news that the appellant poured petrol on his sister and the

parents of the appellant, and thereafter put them on fire. As a

result, his sister and the parents of the appellant were burnt

so severely that they were admitted to R.G. Kar Hospital.

4. On the basis of the written complaint, police registered a

formal First Information Report being Baguiati Police Station

Case No.1449/2016 dated December 7, 2016, initially under

Section 307 of the Indian Penal Code, 1860 and thereafter

added Sections 302/304 of the Indian Penal Code, 1860.

5. Three persons died in the incident. Mina Naskar died on

December 8, 2016. Purnima Naskar died on December 8,

2016 and Arun Naskar died on December 9, 2016. Purnima

and Arun are the parents of the appellant. Mina is the wife of

the appellant.

6. On completion of the investigations, police submitted the

charge sheet. The Court framed charges as against the

appellant on July 31, 2017. The appellant claimed to be not

guilty and was tried.

7. At the trial, prosecution examined fifteen witnesses to

bring home the charges. The prosecution also relied upon

various documentary and material exhibits.

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

appellant was examined under Section 313 of the Code of

Criminal Procedure, where the appellant claimed to be not

guilty and falsely implicated. The appellant claimed that, the

death was due to an accident happening out of burst of a gas

cylinder.

9. Learned Advocate appearing for the appellant submits

that, the prosecution relied upon oral dying declarations

allegedly made by the deceased prior to their deaths. He refers

to the so-called dying declarations. He submits that, none of

the dying declarations are admissible in evidence. He submits

that, the scribe of the three dying declarations, namely, the

Sub-Inspector of Police was not examined by the prosecution.

The three dying declarations of the three victims were not

marked as exhibits as a whole.

10. Learned Advocate appearing for the appellant submits

that, there was a delay in the lodgment of the First

Information Report. He submits that, the incident occurred on

December 5, 2016 while the First Information Report was

lodged on December 7, 2016. He contrasts the written

complaint with the so-called dying declarations and submits

that, the oral dying declarations were claimed to be made on

the date of the incident. Therefore, on the basis of such oral

dying declarations, a complaint to the police was required to

be lodged, which was not done. In such circumstances,

according to him, the delay in the lodgment of the First

Information Report negates the existence of any oral dying

declarations.

11. Learned Advocate appearing for the appellant submits

that, the prosecution did not examine any person claiming to

be an eye-witness to the incident. Therefore, the prosecution

is relying upon circumstantial evidence to bring home the

charges. He contends that, the prosecution could not prove

the charges beyond reasonable doubt, as against the

appellant. In particular, he submits that, apart from the

charge under Section 302 of the Indian Penal Code, 1860, the

appellant was acquitted from all other charges including those

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

consequently, he submits that, the charges as against the

appellant was not proved beyond reasonable doubt by the

prosecution.

12. Learned Advocate appearing for the appellant submits

that, where the prosecution relies upon the dying declarations,

it was incumbent upon the prosecution to prove the contents

of such alleged dying declarations in accordance with law.

Since the prosecution could not prove the dying declarations

in accordingly with law, the same cannot be treated as a dying

declaration of the victims. Consequently, no conviction can be

based upon such so-called dying declarations.

13. Learned Advocate appearing for the State submits that,

apart from the dying declarations of the victims recorded, the

victims made oral dying declarations which also came on

record. She submits that, the dying declarations made by the

victims were so made on the way to the hospital and at the

hospital in a conscious state of mind of the victims. The

version of the dying declarations of each of the victims that,

the appellant poured the petrol and set them on fire was

supported by the post-mortem report of the victims. She also

refers to the depositions of the doctor being P.W.7, in Court,

where P.W.7 stated that, a Police Officer recorded statements

of the three victims in his presence and that he gave remark

that, the patients were conscious and made the statements in

his presence. The doctor also signed on the dying

declarations.

14. Learned Advocate appearing for the State refers to the

modus operandi employed by the appellant. She submits that,

the deaths were caused by burning after the victims were put

petrol over their bodies. Such claim was corroborated by the

dying declarations made by the victims. P.W.2, the sister of

Mina Naskar, deposed that on hearing a hue and cry from the

place of occurrence she rushed to the spot and found them

with burn injuries with a smell of petrol. The First

Investigating Officer found the appellant just outside the place

of occurrence and detained him there.

15. Learned Advocate appearing for the State submits that,

apart from the dying declarations written down by police

personnel in presence of P.W.7, a doctor, there are oral dying

declarations made to various prosecution witnesses. She

refers to the depositions of P.W.2, P.W.3, P.W.8 and P.W.10 in

this regard. She submits that, such oral dying declarations

are valid. She refers to the deposition of the Investigating

Officer and submits, contemporaneously the prosecution

witnesses stated that, the victims made the oral dying

declarations to the police.

16. Referring to the mens rea behind the commission of the

crime, learned Advocate appearing for the State submits that,

all the three victims, stated in unison that, the appellant was

after the immovable property belonging to the father of the

appellant and that, the appellant poured petrol over the three

victims and set them ablaze after the father of the appellant

refusing to make over the immovable property to the appellant.

17. Learned Advocate appearing for the State submits that,

incriminating materials were seized from the possession of the

appellant on his leading statement. In his regard, she refers to

the seizure of the gas lighter and the container containing the

petrol on the leading statement made by the appellant.

18. Learned Advocate appearing for the State submits that,

there are sufficient evidence to convict the appellant on the

charge of murder.

19. P.W.1 is the de facto complainant. He is the elder brother

of one of the victims Mina Naskar. He stated in his deposition

that, the appellant used petrol to burn the three victims. The

incident happened on December 5, 2016 between 10 to 10:15

at night. He lodged a complaint on December 7, 2016. The

incident happened in the matrimonial home of Mina Naskar.

There was a family dispute between appellant and the parents

of the appellant as also his sister Mina with regard to money.

He identified the written complaint which was tendered in

evidence and marked as Exhibit-1.

20. P.W.2, is the sister of one of the victims, Mina Naskar.

She stated that, the appellant murdered Mina, Arun and

Purnima by using petrol and by burning them. She also stated

that incident happened on December 5, 2016 in between 10 to

10:30 p.m. at the matrimonial home of Mina Naskar. She

heard a hue and cry from the matrimonial home of Mina

Naskar on that day. The matrimonial home of Mina Naskar

was situated at two minutes walking distance from her house.

On hearing the hue and cry, she rushed to the spot and found

the three victims with burn injuries and the neighbours

pouring water on their body. She found a smell of petrol on the

body of the victims.

21. P.W.8 and other neighbours took the victims to Uma

Nursing Home by amulance. Thereafter, the victims were

taken to R.G. Kar Medical College and Hospital. There all the

three victims were admitted. She stated that Mina and

Purnima died on December 8, 2016, while Arun died on

December 9, 2016. She stated that while at the ambulance,

Mina and Purnima told her that, the appellant poured petrol

on them and set them on fire. She stated that, since marriage

of Mina, the appellant used to inflict physical torture on Mina

on demand of ornaments and money. Paternal family of Mina

gave some ornaments but could not arrange money for which,

the appellant put petrol on Mina and burnt her. She also

stated that, as the parents of victim did not transfer the

property in favour of the appellant, he put petrol on their

body. She stated such facts before the police officer as also

before the learned Magistrate. She identified statements

recorded under Section 164 of the Criminal Procedure Code

which was tendered in evidence and marked as Exhibit-2. She

identified the appellant in court.

22. P.W.3 is the brother-in-law of Mina. He stated that, the

appellant burnt three victims alive by pouring petrol on them.

He stated that, on December 5, 2016 at about 10:30 in the

night, he received information from a relative that there was a

fire in the house of Mina and that, the victims got burnt and

so they were hospitalized. He was asked to come to Uma

Nursing Home. He along with his wife arranged a taxi and

went to the Uma Nursing Home and did not find the victims

there. They learnt that victims were taken to R.G. Kar Hospital

and they moved the R. G. Kar Hospital and reached there at

11:30 night. There, he met Mina and asked her the reason to

which, Mina explained that the appellant put petrol on the

three victims and put them on fire.

23. P.W.3 stated that the appellant used to inflict physical

torture upon Mina on demand for money. As Mina did not

bring money, the appellant put petrol on her and lit her with

fire. He assisted Mina by paying money as per direction of the

appellant. Appellant also requested his parents to transfer the

landed property in his favour. When the parents failed to do so

the appellant put petrol on them and put them on fire. He

identified the appellant in the Court.

24. P.W.3 stated that, he narrated such facts before police as

also before the learned Magistrate. He identified his statement

recorded under Section 164 of the Criminal Procedure Code

which was tendered in evidence and marked as Exhibit-3. He

also tendered the inquest report dated December 9, 2016,

which was marked as Exhibit-4.

25. P.W.4 is a Doctor who treated one of the victims namely,

Arun Kumar Naskar on December 5, 2016. He stated that

victim was brought by his brother Prosenjit Naskar. He stated

that the patient party gave history of accidental burn from gas

cylinder burst and that that the time of accident was at about

10 p.m. of the date. He stated that the patient was with 100%

burn and that he admitted the patient at the Male Burn Ward

of R.G. Kar Medical College and Hospital. He tendered the

medical report of the victim, which was marked as Exhibit-5.

In cross-examination, he stated that, he did not note that

there was a smell of any inflammable article like kerosine from

the body of the patient in the medical report of the victims.

26. P.W.5 is another Doctor posted at R.G.Kar Medical

College and Hospital. He treated Purnima Naskar on December

5, 2016. He stated that, patient party gave history of

accidental burn from gas cylinder burst at the time of

accident. Purnima Naskar was brought by Prasenjit Naskar.

He stated that the patient was conscious and alert with 75%

burn injury seen. Patient was admitted at the General Surgery

Ward Unit-I. He tendered the medical report of such patient

which was marked as Exhibit-6. He also treated Mina Naskar.

He stated that Mina Naskar was brought by Amit Naskar.

Patient party gave history of accidental burn of gas cylinder

burst. He saw burn injury on both hands, leg, back, abdomen

and face near about 90% on Mina Naskar. The patient was

sent to Casualty Block Operating Theater. The patient was

admitted at General Surgery Ward Unit-I. He tendered the

medical report of Mina Naskar which was marked as Exhibit-

7.

27. In cross-examination, P.W.5 stated that, he did not

remember that he found the smell of any inflammable article

like kerosene or petrol from the body of the patient and that

the same was also not written on the documents being

Exhibits-6 and 7.

28. P.W.6 is another Doctor posted at R.G. Kar Medical

College and Hospital as Resident Medical Officer, department

of Plastic Surgery on December 8, 2016. He countersigned the

death certificate of Purnima Naskar on December 8, 2016.

Such death certificate was tendered and marked as Exhibit-8.

He also countersigned the death certificate of Mina Naskar

which was tendered in evidence and marked as Exhibit.9.

29. P.W.7 is a Doctor posted at R.G. Kar Medical College and

Hospital on December 8, 2016 and December 9, 2016. He

identified the death certificates that he issued in respect of

Purnima and Mina Naskar on December 8, 2016. He also

identified the death certificate of Arun Naskar issued on

December 9, 2016 and it was tendered in evidence and

marked as Exhibit-10.

30. P.W.7 stated that, on December 7, 2016, a police officer

from Tala Police Station recorded the statement of the three

victims in his presence. He gave the remark that the patients

were conscious and that the patients gave the statements in

his presence. He signed all the three documents. All three

patients were suffering from burn injury and were unable to

sign so left thumb impression were put on such documents.

He identified his handwriting on each of the three documents

which were marked as Exhibits-11/1, 12/1 and 13/1

respectively.

31. All three dying declarations, portions of which were

marked as Exhibits 11/1, 12/1 and 13/1 respectively of the

three patients were shown to P.W.7 on behalf of the defence.

32. P.W.8 is the elder brother of one of the victims, Arun

Naskar. He identified the appellant in the Court. He stated

that, the victims were murdered by the appellant by putting

them on fire after pouring petrol on their bodies. He stated

that the incident happened on December 5, 2016 between

9:45 p.m. to 10 p.m.. He stated that, on December 5, 2016, he

was at his shop at Tehgoria. His wife informed him over

phone. All members of the house of the appellant were burnt

and he was asked to come sharp. He closed his shop and went

to the spot. He found the three victims with burn injuries.

Local people and people from Meena Residency came and

doused the flames by collecting water from Meena Residency.

The appellant was standing there. He asked the appellant how

all this happened, when the appellant told him that incident

occurred out of gas cylinder burst. Thereafter, he along with

others, took the victims to the hospital. He asked the victim as

to how the incident happened when the victim told him that

they were put on fire after pouring petrol on them by the

appellant.

33. P.W.8 stated that, the appellant used to torture his

parents for money. The appellant used to create pressure upon

Mina demanding money from her. The family of Mina was poor

and so could not satisfy the demand. He stated such fact

before the Investigating Officer as also before the learned

Magistrate. He tendered his evidence recorded under Section

164 of the Criminal Procedure Code as Exhibit.14/1. He

stated that his house is situated just behind the house of Arun

Naskar.

34. P.W. 9 is a police personnel who prepared the inquest

report with regard to the dead body of Arun Naskar. The

inquest report was tendered in evidence and marked as exhibit

15.

35. P.W. 10 is the daughter of Arun Naskar and Purnima

Naskar. She stated that the appellant poured petrol on the

bodies of the victims and set them on fire. The incident

happened on December 5, 2016 around 10 to 10.30 p.m. in

the night. On that date, there was a general talk between her

and her mother Purnima as also with Mina Naskar. At around

10 p.m. of the night, a neighbour gave her information that

her parents and Mina sustained severe burn injuries. She

rushed to R.G. Kar Hospital directly where she found that all

three of them were admitted at Burn Unit. On the next date,

i.e. on December 6, 2016, she talked with them. All of them

stated to her that the appellant poured petrol on each of them

and put them on fire.

36. P.W. 10 stated that, the appellant sought sanction from

Arun Naskar to raise structure to induct tenant, in the vacant

portion of the house. Arun rejected such prayer. Immediately

the appellant poured petrol on the body of Arun and put him

on fire. Simultaneously the appellant poured the petrol on the

body of Purnima and Mina and put them on fire also. The

appellant was lazy and was without any avocation. Arun and

the father-in-law of the appellant and the other in-laws of the

appellant maintained the family of the appellant. The

appellant was with the intention to earn money by inducting

tenants on the structure raised upon vacant portion of the

house and her parents, Arun and Purnima resisted. So the

appellant committed the crime. The appellant used to draw

money from his parents and used to threaten them with

murder by putting petrol on them and setting them on fire.

Mina used to protest so he also burnt his wife. Mina always

supported Arun and Purnima when the appellant used to

assault his parents for which the appellant got furious with

his wife Mina. Appellant used to put pressure on his wife to

bring money from her parents. On one occasion, she saw the

appellant attempting to throttle Mina when the parents of

Mina failed to provide money. She identified the appellant in

Court. She stated that, she informed the police and also

recorded a statement before the Magistrate. She identified her

statement recorded under Section 164 of the Code of Criminal

Procedure, which was tendered in evidence and marked as

exhibits 16/1 and 16/2.

37. The doctor who held the post mortem of the dead body of

the three victims deposed as P.W. 11. She stated that, in her

opinion, all the three victims died due to the effects of ante

mortem burn injury. She described the burn injuries that she

found on the three individual victims. She tendered the post

mortem reports of the three victims in evidence. Post mortem

report of Arun Naskar was tendered in evidence and marked

as exhibit 16/A as a whole. Post mortem report of Purnima

Naskar was tendered in evidence and marked as exhibit 17 as

a whole. Post mortem report of Mina was tendered in evidence

and marked as exhibit 18 as a whole.

38. A police personnel who submitted the supplementary

charge-sheet bearing no. 9/2019 dated September 9, 2019

deposed as P.W. 12. Such charge-sheet was tendered in

evidence and marked as exhibit 19. The forensic laboratory

report was tendered in evidence and marked as exhibit 20.

39. The police personnel who received the first responsibility

of investigation deposed as P.W. 13. He stated that, when he

reached the place of occurrence, he found the appellant sitting

near the place of occurrence and detained him there. He

stated that, he examined Prosenjit Naskar, P.W. 8, and

recorded his statement. He arrested the appellant on the spot.

He collected the dying declarations of the three victims. He

stated about the conduct of the investigations. He tendered

the statement of the appellant recorded under Section 161 of

the Code of Criminal Procedure, which led to the seizure of,

inter alia, the container containing petrol as well as the gas

lighter. The statement of the appellant was marked as exhibit

24. He tendered the seizure list prepared on December 9,

2016, which was marked as exhibit 23.

40. P.W. 13 was cross-examined on behalf of the appellant.

In such cross-examination, he stated that, the prosecution

witnesses, who claimed the victims made oral dying

declarations to such prosecution witnesses narrated about

such oral dying declarations during investigations.

41. P.W. 14 is another Investigating Officer. He was

entrusted with the responsibility of further investigation. He

stated that, on receiving such responsibility on March 4, 2017,

he issued requisition for report of viscera of three deceased

from the Forensic Science Laboratory. He received the report

on December 7, 2017. He tendered such reports in evidence,

which is marked as exhibits 30, 30/1 and 30/2. He stated

that, he submitted supplementary charge-sheet on December

7, 2017.

42. P.W 15 is the Forensic Science Laboratory expert. He

identified such report and his signature thereon. He stated

that, presence of inflammable product like petrol, diesel and

kerosene would be detected in the contents of exhibit marked

as A to L. He also stated that, on examination, it is opined

that the oily liquid contained in the plastic bottle marked as

exhibit N was detected as petrol. The gas lighter marked as

exhibit M was detected in active condition.

43. As noted above, in his examination under Section 313 of

the Code of Criminal Procedure, on completion of the evidence

of the prosecution, the appellant claimed that, he was

innocent and falsely implicated.

44. Exhibit-16, Exhibit-17 and Exhibit-18 are postmortem

reports of the three victims. All the three victims suffered burn

injuries. The postmortem Doctor, being P.W.-11, opined that,

the death of the victim was due to effects of ante-mortem burn

injuries.

45. The victims were initially taken to a nursing home and,

thereafter, admitted at the R.G. Kar Medical College and

Hospital. The Doctors who treated the victims at such

hospital, deposed that, the victims were admitted for burn

injuries.

46. Prosecution at the trial, produced three writings claimed

to be dying declarations of the three victims. The three dying

declarations were recorded by a Sub-Inspector of Police, who

was not examined at the trial. The dying declarations were

recorded in presence of a Doctor treating the three victims,

being P.W-7. P.W.-7, deposed that, on December 7, 2016, a

police officer from Tala police station recorded statements of

the three victims in his presence and that he gave a remark

that the patients were conscious and that they recorded their

statements in his presence.

47. Exhibit-11/1, Exhibit-12/1 and Exhibit-13/1 are the

handwriting of P.W.-7, which were tendered in evidence.

Those handwriting are of P.W.-7 on the so-called dying

declaration of the three victims. Only the hand writing

portions of P.W.-7 were tendered in evidence at the trial and

marked as Exhibit-11/1, Exhibit-12/1 and Exhibit-13/1.

Other portions of the document, i.e., the statement of the

three victims, were not tendered in evidence on behalf of the

prosecution. The hand writing of the Sub-Inspector of Police,

was not identified by any of the three police personnel coming

to depose on behalf of the prosecution. Prosecution did not

take any steps for the purpose of identifying the handwriting

of the Sub-Inspector of Police, who took down the dying

declaration of the three victims, at the trial. As noted above,

the Sub-Inspector of Police himself was not examined at the

trial.

48. However, a question was put to P.W.-7, in cross-

examination, on behalf of the defence referring to Exhibit-

11/1, Exhibit-12/1 and Exhibit-13/1. Even thereafter, the

learned Judge did not mark the documents containing

Exhibit-11/1, Exhibit-12/1 and Exhibit-13/1 as exhibits at

the trial.

49. In absence of relevant portion of the document,

containing Exhibit-11/1, Exhibit-12/1 and Exhibit-13/1,

being marked as exhibits, we are not supposed to take into

consideration the so-called dying declaration made by the

three victims and contained in such documents.

50. Before the three dying declarations, claimed to be

recorded by the Sub-Inspector of Police, as noted above, the

three victims, at different stages, while they were alive, made

dying declarations orally to several prosecution witnesses.

51. Significantly, P.W-7, who was present on December 7,

2016, when the Sub-Inspector of Police was recording the

dying declaration, certified that, all the three victims were

conscious and were in a position to record their statements.

This fact was not dislodged on behalf of the defence, despite

cross-examination of P.W.-7.

52. The incident of burn occurred on December 5, 2016 at

the residence of the three victims. They were initially shifted

to a nursing home and, thereafter, admitted at R.G. Kar

Medical College and Hospital.

53. The victims were conscious and were in a state of health,

so as to make oral dying declarations. This is established by

the deposition of P.W.-7 and his endorsements made on

December 7, 2016, being Exhibit-11/1, Exhibit-12/1 and

Exhibit-13/1.

54. P.W.-2, a sister of Mina, deposed that, she went to the

place of occurrence and accompanied the victims first to the

Uma Nursing Home and, thereafter, to R.G. Kar Medical

College and Hospital where, the victims were admitted. She

stated that, while in the Ambulance, Mina and Purnima told

her that, the appellant poured petrol on their bodies as the

parents of the appellant did not transfer the property in favour

of the appellant. P.W.-2 was not cross-examined on such

aspect at the trial, on behalf of the defence.

55. P.W.-3, in her deposition stated that, she asked Mina

when she visited at the R.G. Kar Medical College and Hospital,

as to the reason for the injury whereupon, Mina explained that

appellant poured petrol on all the three victims and put them

on fire. P.W-3 was cross-examined at length on behalf of the

prosecution. Again, P.W.-3 was not cross-examined on the

aspect of the oral dying declaration made by Mina to him.

56. P.W.-8, is one of the first responders to the incident. He

stated in his deposition that, he asked the three victims, in the

Ambulance as to how the incident happened when the victims

told him that they were put on fire by the appellant after petrol

was poured on them. P.W.8 was also not cross-examined on

such aspect.

57. P.W.-10, who is the sister of the appellant, stated in her

deposition that, she went to R.G. Kar Medical College and

Hospital whereupon, when she visited the victims, all of them

stated to her that, the appellant poured petrol on them and

put them on fire. Again, she was not cross-examined on the

aspect of oral dying declaration.

58. Therefore, there are two prosecution witnesses, being

P.W.-2 and P.W.-8, who stated that, they heard the oral dying

declaration, in the Ambulance, made by the victims and two

prosecution witnesses, namely, P.W.-3 and P.W.-10, who

heard the oral dying declaration at R.G. Kar Medical College

and Hospital.

59. As noted above, till December 7, 2016, all the three

victims were conscious and capable of recording a statement

as appearing from Exhibit-11/1, Exhibit-12/1 and Exhibit-

13/1, being the certificate of the Doctor attending them.

60. Dying declarations, that too, oral dying declaration can

be relied upon to convict an accused, should the Court be of

the view that such dying declarations were truthful and that

they were not tainted. There are no materials on record to

suggest that, the dying declarations as claimed by four

prosecution witnesses, were tainted. Two of the prosecution

witnesses are near relatives of the appellant. There is no

reason as to why, the near relatives of the appellant will falsely

implicate the appellant. One of the near relatives of the

appellant, is not a natural successor to the estate of any of the

victims. Therefore, no motive to falsely implicate the appellant

is apparent from the materials on record.

61. It is the contention of the appellant that, the death was

accidental in nature and due to a gas cylinder burst. This

stand was taken by the appellant during his examination

under Section 313 of the Criminal Procedure Code.

62. This defence of the appellant is sought to be canvassed

on the basis of the oral testimony of the prosecution

witnesses, namely, the Doctor attending the three victims.

63. Two of the Doctors, attending the victims, stated that, the

patient party told them that, the incident occurred due to a

gas cylinder burst. Two Doctors, who treated those victims

and made those statements in their oral depositions, also

stated that, victims were brought either by the appellant or by

the uncle of the appellant, being P.W.-8. P.W.-8, in his

deposition stated that, he heard that the victim suffered the

burn injuries due to gas cylinder burst from the appellant.

64. Therefore, the source of information of the two

prosecution witnesses attending the three victims, to the effect

that the patient party claimed that the victim suffered gas

cylinder burst, was the information supplied by the appellant.

65. Police undertook a seizure subsequent to the arrest of the

appellant. In the seizure, amongst others, a container

containing petrol and a gas lighter in a functional order were

seized. The articles so seized were sent for forensic

examination. The forensic examiner, deposed at the trial and

stated that, the container was containing petrol and that the

gas lighter was functional. The seizure was made pursuant to

the leading statement made by the appellant.

66. Significantly, despite the appellant making a statement

leading to recovery of articles as noted above, the appellant did

not lead the police to recover any burst gas cylinder at the

place of occurrence. Independent of the leading statement of

the appellant, police did not seize any burst gas cylinder at the

place of occurrence. No prosecution witness came forward to

state that there was bursting of a gas cylinder at the place of

occurrence.

67. Therefore, the theory sought to be canvassed on behalf of

the appellant that, the burn injuries suffered by the victims

were accidental in nature and occurred due to bursting of a

gas cylinder remains unsubstantiated.

68. The incident occurred on December 5, 2016 with the

written compliant being lodged on December 7, 2016. It is

contended on behalf of the appellant that, there was a delay in

the lodgment of First Information Report.

69. The incident occurred on December 5, 2016 around 10

P.M. in the night. The victims were initially rushed to a

nursing home, being Uma Nursing Home and, thereafter, to R.

G. Kar Medical College and Hospital. The victims survived till

December 7, 2016. P.W.- 1 lodged the written complaint on

December 7, 2016. In the facts and circumstances of the

present case, we do not find any delay in the lodgment of the

First Information Report with the police.

70. In view of the discussions above, we find no ground to

interfere with the impugned judgment of conviction dated

February 20, 2020 and the impugned order of sentence dated

February 24, 2020.

71. We find no merit in the present appeal.

72. CRA 357 of 2021 is dismissed.

73. Copy of this judgment and order along with the trial

court records be transmitted to the appropriate Court

forthwith.

74. Period of detention suffered during the trial and post

conviction be set off against the sentences imposed.

75. Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis on compliance of

all formalities.

(Debangsu Basak, J.)

76. I Agree.

(Md. Shabbar Rashidi, J.)

AD/CHC/KC/DD