Sk. Aftab Hossain & Ors vs The State Of West Bengal
2023 Latest Caselaw 1777 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



                                   CRA 642 of 2004

                                Sk. Aftab Hossain & Ors.

                                         Versus.

                                The State of West Bengal




For the Appellant      :           Mr. Debabrata Acharyya, Adv.
                                   Mr. Sk. Samsul Arefin, Adv.
                                   Mr. Sital Samanta, Adv.


For the State               :      Mr. Prasun Kumar Dutta, APP.
                                   Md. Kutubuddin, Adv.
                                   Mr. Santanu Deb Roy, Adv .
Last Heard on           :            28.02 .2023

Judgment on             :            17.03.2023




PARTHA SARATHI SEN, J. : -


1.   The instant appeal arises out of the judgement dated 27.09.2004 and

the order of sentence dated 28.09.2004 as passed by the learned Additional

Sessions Judge, Fast Track, 2nd Court Midnapore, in Session Trial No. XXIII
                                      2
of August 2001 whereby and whereunder the said trial court in the said case

found the accused persons guilty for committing offence under Sections

498A/302/34 IPC and thus sentenced each of them to suffer RI for 3 years

and to pay fine of Rs.1000/- i.d to suffer for six months for the offence

committed by them under Section 498A IPC and also to suffer RI for life and

to pay a fine of Rs.5000/- i.d to suffer RI of one year for the offence

committed by them under Section 302 IPC with a further direction that all

the substantive sentences of imprisonment would run concurrently . The

convicts felt aggrieved and thus preferred the instant appeal. It is however

pertinent to mention herein that during the pendency of the instant appeal,

the present appellant no.3 Mst. Ashma Khatun @ Asheme Khatun has

expired on 27.12.2019 and as such the instant appeal stood abetted as

against her and such order of abetment was recorded by this Court vide

order dated 28.02.2023. For effective disposal of the instant appeal, the

facts leading to initiation of the aforesaid sessions trial is required to be

discussed in a nutshell.

2.    One Sk.Farhad Ali (PW1) of village Amrakuchi, PS Keshpur, Dist.

Medinipur lodged a written complaint dated March 20,2001 with the I/C

Kotwali P.S, Medinipur stating inter alia, that about four years back his

daughter Sabina Khatun was given in marriage with Aftab Hossain

(appellant no.1 herein) and thereafter for two years, both the bride and the

groom led a happy conjugal life. It is the further version of the de-facto

complainant that thereafter trouble started in the matrimonial home of his

said daughter since the present three appellants being her husband,

brother-in-law and mother-in- law started making quarrel and torture upon
                                      3
her daughter on account of demand of dowry of Rs. 1 lakh which the de

facto complainant could not fulfil on account of his financial stringency. It

was the further version of the de facto complainant that for the non-

fulfilment of such illegal demand his said daughter was frequently sent back

to her paternal home however, with the expectation that everything would be

in order in future the de facto complainant used to send her daughter to her

matrimonial home with a request to the present three appellants not to

make quarrel and torture on account of dowry. It has also been disclosed

that 4-5 days prior to lodging of the FIR similar incident occurred and as

usual the de facto complainant sent back his daughter to her paternal

home. In the written complaint it has also been averred that on the last

night at about 1:30 am one person being the head of the 'Moholla' (area) of

Talpukur Colony intimated him over telephone that his said daughter

Sabina Khatun was admitted at Medenipur Sadar Hospital with severe burn

injury and after getting such information when he reached Midinipur Sadar

Hospital he found his said daughter in totally ablazed condition and at that

time his said daughter stated to him that it is none but her husband and

her two in-laws i.e. the convicts of the aforementioned trial set fire on her

person by pouring kerosene oil and thereafter his said injured daughter lost

her sense. On the basis of such written complaint Kotwali P.S case no.

78/2001 dated March 20, 2001 under Sections 498A/326/34 IPC was

started. However, since the victim died on March 21,2001 Section 302 was

added in the FIR as per prayer of the I.O. Investigation was taken up and on

completion of the same charge sheet under Sections 498A/ 302/34 IPC was

filed as against the three appellants. Trial Court Record reveals that after
                                          4
commitment and transfer of the trial court record, learned trial court on

April 22, 2002 considered the charges against the present three appellants

and on perusal of the entire materials as placed before him, framed charges

under Sections 498A/302/34 IPC as against all the three accused persons.

Trial court record reveals further that for bringing home the charges as

against the three accused persons, the prosecution has examined 17

witnesses in all and several documents have been exhibited on their behalf.

Though before the learned trial court the accused had adduced no evidence

but from the trend of cross-examination of the prosecution witnesses and

the answers as given by the accused persons in course of their respective

examinations under Section 313 Cr.P.C, it would reveal that the defence

case is based on false implication and clear denial.

3.    For the sake of brevity we propose to categorize the prosecution

witnesses in the following manner.

Private Witnesses           Government Witnesses          Police Witnesses

i.PW1-Father     of     the i.PW10-          Additional i. PW5- A constable of
deceased and the de District Magistrate.                  police and a seizure list
facto complainant.                                        witness.
ii.PW4- Mother of the ii.PW13-           The   Deputy ii. PW17- Investigating
deceased.                   Magistrate            who officer of this case.
                            recorded     the    alleged
                            dying declaration of the
                            deceased.
iii.PW2-    Neighbour    of iii.PW 12- The medical
the accused persons.        officer of the emergency
                            department               of
                            Medinipur           Sardar
                                                 5
                               Hospital.
iv.PW3 - Neighbour of iv. PW14- The medical
the accused persons.           officer     of       Medinipur
                               Sadar Hospital and a
                               witness     to       the   dying
                               declaration as recorded
                               by PW13.
v. PW7- Neighbour of v.PW16-                The       medical
the    accused    persons officer          of       Medinipur
and brother of PW2.            Sadar Hospital and a
                               witness     to       the   dying
                               declaration as recorded
                               by PW13.
vi.PW6-     Neighbour    of vi. PW15- The Medical
the accused persons.           officer     of       Medinipur
                               Sadar       Hospital        who
                               performed autopsy over
                               the dead body of the
                               deceased.
vii. PW5- Kazi of the
marriage    between     the
deceased and appellant
no.1
viii.PW9-     Matrimonial
uncle of the deceased
and    a     seizure    list
witness.
ix.PW11- Scribe of the
written complaint.



4.     As discussed above learned trial court after considering the oral

evidence of the prosecution witnesses and after giving due thought over the
                                       6
exhibited documents came to a conclusion that the charges as framed

against all the three accused persons have been proved and thus passed the

impugned judgement of conviction and order of sentence giving rise to the

instant appeal.

5.    Mr. Debabrata Acharya, learned advocate for the appellant in course

of his argument at the very outset draws attention of this court to the

certified copy of the impugned judgement. It is argued by Mr. Acharya that

while passing the impugned judgement learned trial court placed much

reliance upon the    subsequent dying declaration of the deceased being

Exhibit 4/1 without giving due importance to the first dying declaration

being Exhibit 6/1 . It is argued on behalf of the appellants that the learned

trial court while passing the impugned judgement ought to have held that

the second dying declaration of the deceased is surrounded with suspicious

circumstances and in not doing so, a serious miscarriage of justice has been

caused while passing the impugned judgement . It is further argued that

learned trial court ought to have visualize that all the witnesses to the

exhibit 4/1 i.e. the alleged second dying declaration of the deceased had not

been examined and such being the position there cannot be any justification

on the part of the learned trial court to place much reliance upon the alleged

second dying declaration being Exhibit 6/1 overlooking the first dying

declaration of the victim being Exhibit 4/1. In support of his contention Mr.

Acharya, learned advocate for the appellant placed his reliance upon the

judgement as passed by the Hon'ble Supreme Court in Criminal Appeal

No.1290 of 2010 (Makhan Singh Vs. the State of Haryana) reported in

(2022)SCC online SC 1019. It is further argued on behalf of the present
                                       7
appellants that under no stretch of imagination the appellant no.2 can be

held guilty since from the rough sketch map as drawn by the I.O, it would

reveal that the house of the present appellant no.2 is situated at a distance

from the alleged P.O and that the presence of the appellant no.2 in the P.O

at the fateful day and hour has not been proved beyond reasonable doubt.

6.    Per contra, Mr. Prasun Kr. Dutta, learned Additional P.P duly assisted

by Mr. Santanu Deb Roy and Md. Kutubuddin learned State counsels

argued that the learned trial court made no mistake in holding that the

second dying declaration of the deceased being Exhibit 6/1 is free from all

vices and is genuine. It is further argued that in absence of any contrary

evidence learned trial court righty believed the testimonies of PW13 vis-à-vis

PW12 , PW14 and PW16 since their evidence are neutral and consistent with

each other. Drawing attention to the evidence of PW7 it is argued on behalf

of the State/respondent that learned trial court is also justified in believing

the oral testimony of PW7 and thus rightly passed the impugned judgement

of conviction. Mr. Dutta, learned Additional P.P in course of his submission

placed his reliance upon a judgement as passed by the Hon'ble Supreme

Court of India in Criminal Appeal No. 920/1997 (Nallam Veera

Stayanandam & Ors vs. The Public Prosecutor, High Court of A.P

reported in (2004)10 SCC 769).

7. Since in this appeal learned advocates for the contending parties

confine their arguments with regard to the acceptance and /or non-

acceptance of the two dying declarations i.e. Exhibit 6/1 and Exhibit 4/1 we

shall confine our discussion with regard to the evidence of those

prosecution witnesses which are related to such two dying declarations as

mentioned above.

8. On perusal of the certified copy of the impugned judgement it appears

to us that learned trial court while passing the impugned judgement

admittedly placed his reliance upon the second dying declaration of the

victim and not upon the first dying declaration which has been recorded

almost 12 hours back prior to recording of the second dying declaration. In

view of such, we feel it obligatory to look to the trial court record to assess

under what circumstances the said dying declarations have been recorded

and whether trial court is at all justified in passing his reliance upon the

second dying declaration ignoring the first dying declaration of the deceased.

However, prior to doing so, we also feel it obligatory to look to the statutory

provision dealing with the subject of dying declaration i.e. Section 32 of the

Evidence Act which is reproduced hereunder in verbatim:-

"Statements by persons who cannot be called as witnesses

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...

5...

6...

7...

8..."

9. At this juncture we also propose to look to some of the reported

decisions of the Hon'ble Supreme Court of India dealing with the subject of

dying declaration. In the case of Amar Singh vs. State of Rajasthan

reported in (2010) 3 CCrLR (SC) 446 the Hon'ble Apex Court expressed the

following view:-

"Section 32(1) Evidence Act provides that the statements 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, are themselves relevant facts. In the present case, cause of death of deceased was a question to be decided and the statements made by the deceased before PW4 and PW5 that the appellant used to taunt the deceased in connection with a demand of scooter or Rs.25,000/- within a couple of months before the death of the deceased are statements as to " the circumstances of the transaction which resulted in her death "within the meaning of Section 32(1) of the Evidence Act".

10. With regard to the admissibility of the dying declaration we also

propose to look to the celebrated decision of the Hon'ble Supreme Court in

the Case of Atbir vs. Govt. of NCT of Delhi, reported in (2010) 3SCC (cr)

1110: (2010) 9 SCC 1 where the Hon'ble Apex Court held the following:-

"i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eye-witness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration."

11. Keeping in mind the aforementioned legislative enactment and the

judicial pronouncements we propose to look to the evidence of PW12 i.e the

Medical Officer of Midnapur Sadar Hospital . In course of his examination-

in-chief PW12 stated that on 19.3.2001 at about 11:55 p.m the victim was

brought by her husband (appellant no.1 herein) in unconscious and

approximately 100% burnt condition and at that time she was admitted

under one Dr. Dilip Sen (PW14). He further stated that since the patient was

under treatment of Dr. Dilip Sen he did not do any other treatment of the

said patient. He was declared hostile by the prosecution and in his cross-

examination by the prosecution he stated that he duly filled up the

emergency ticket in his own handwriting. He admitted that he had no right

to examine the patient and to prescribe medicine. He further stated that

being a doctor of emergency department it was his duty to take information

of the condition of the patient though the patient was placed under the

treatment of other doctor and on March 20, 2001 at about 6 am when he

went to the victim and on query , the victim gave statement which he

recorded (first dying declaration) (Exhibit 6/1). He further stated that prior

to the writing of the dying declaration that is Exhibit 6/1 he did not make

any contact with Dr. Dilip Sen( PW14) although the victim was under his

treatment. At this juncture we feel it obligatory also to quote the dying

declaration as recorded by PW12 and the same is reproduced hereinbelow in

verbatim:-

"N.B. pt gained consciousness in F.S.S.W for a brief period and on asking said that she herself poured kerosin oil.

S.D of PW12 20/03-01 at 6 A.M".

12. In course of his cross-examination by the defence he also stated that

on regaining sense the victim herself told him that she poured kerosene oil

on her body. At this juncture we also consider it necessary to look to the

evidence of PW14 i.e. Dr. Dilip Sen under whom the victim was admitted at

Mednipur Sadar Hospital on 19.03.2001. It is the version of PW14 in his

examination-in-chief that on 20.03.2001 at about 1:15 hours he examined

the patient who at that time was almost 100% burnt. It is his further version

that the victim made a voluntary statement to the effect that the incident

was suicidal in nature. However on the same day at about 1 pm the victim

voluntarily gave statement that her burn injury is homicidal in nature and

that the present three appellants took part over the homicidal burn of her

when she had quarrell with her husband. It has also been stated by PW14

that he gave a proposal to the Superintendent of Mednipur Sadar Hospital

for recording the dying declaration of the victim in presence of a Magistrate

and he further stated that before giving the statement she was in a position

to give such statement. PW14 was extensively cross-examined on behalf of

the defence. In course of his cross-examination by the defence PW14 stated

that the victim disclosed to him that the incident was suicidal in nature and

that the second statement of the victim was recorded after 12 hours after

the first one.

If we scan the evidence of PW12 and PW14 by keeping those side by

side, it appears to us that though it was the version of PW12 what while

recording the first dying declaration (Exhibit 6/1) he made no contact with

PW14 but PW14 in his cross-examination stated that such dying declaration

was made by the victim either in his presence or to him. On conjoint perusal

of the evidence of PW12 and PW14 it appears that on the relevant night and

hour PW12 was posted in the emergency department and on the relevant

time when the victim was brought to Midnpur Sadar Hospital he being in-

charge of the emergency department simply filled up the 'proforma for police

report' and did nothing with regard to the treatment of the victim since the

victim was admitted under PW 14. Such being the position, it is beyond our

understanding as to what prompted PW12 (who was then in the emergency

department) to suddenly record the dying declaration being Exhibit 6/1 of

the patient without intimating the same either to PW14 or to the

Superintendent of the said Hospital especially when it has not been stated

by PW12 in course of his deposition that he had to record the first dying

declaration being Exhibit 6/1 since he noticed that at any moment the

patient may succumb to her burn injury. In view of the discussion made

hereinabove it appears to us that the action of PW12 while recording the

first dying declaration of the deceased being Exhibit 6/1 is not only hyper-

active but also suspicious in nature. At this juncture if we again look to the

evidence of PW14 it would reveal that after considering the condition of the

patient who was admitted under him in the aforesaid hospital, he took

appropriate steps and followed protocols for recording of the dying

declaration and that, only thereafter the second dying declaration i.e.

Exhibit 4/1 has been recorded by PW13 who is none but an Executive

Magistrate, a member of West Bengal Civil Service.

13. In considered view of us the evidence of PW13 is very much vital for

arriving at a logical conclusion of this trial and accordingly we consider it

prudent to discuss his testimony in a nutshell. PW13 in course of his

examination-in-chief categorically stated that as per order of the District

Magistrate he went to the hospital for recording the dying declaration of the

victim. He further testified that the medical officer who remained present at

the spot opined that the victim was in a fit state of mind to make such

statement and he also testified that the victim expressed her willingness to

give her voluntary statement and accordingly he recorded the statement

being Exhibit 4/1 but he further testified that such recording of statement

was done in presence of the doctors of the Hospital namely; Dr. Subhankar

Sarkar, Dr. Susanta Sarkar, ward master N. Ganguly, sister and the parents

and uncle of the victim. In course of his cross-examination PW13 stated that

such dying declaration was not recorded by him in question and answer

form. He further stated that he summarized the statement of the victim. He

further stated that prior to recording of such dying declaration being Exhibit

4/1 he did not ascertain from the patient as to whether she consulted with

her parents and relatives. It is his further version that the patient was giving

answer in a very soft and low voice and even all her statements were not so

clear. At this juncture we also consider it expedient to look to the Exhibit

4/1 which has been recorded in Bengali and the English translation of

which is as under:-

Smt. Sabina Khatun -"Yesterday (19.03.2001) at about 1 pm I had a quarrel with my husband since my husband asked me to transfer her father's land in his favour. I did not agree to such proposal for which terrible quarrel occurred wherein my mother-in-law and father-in-law also participated. Later in the night my husband went to the house of my brother-in-law for watching TV and when I went to call him quarrel between us started again and thereafter, after returning to our own home such quarrel reached its peak and at that time my brother-in-law and mother-in-law caught hold of me and my husband snatched my earings for which I suffered bleeding injury and at that time my husband poured kerosene oil on me and set me with fire."

14. PW 16 being another medical officer of the said hospital in course of

his examination-in-chief testified that the second dying declaration i.e.

Exhibit 4/1 was recorded by PW13 in his presence as well as in the

presence of ward master N. Ganguly and sister and some of the relatives

and after recording of such statement of the victim he signed as a witness

and other witnesses also put their signatures on such statement. In course

of his cross-examination PW16 stated that the statement of the victim was

not clearly audible however PW13 i.e. the Executive Magistrate was hearing

such statement from a very close range.

15. On conjoint perusal of the evidence of PW13, PW14 and PW16 along

with the contents of Exhibit 4/1 i.e. the second dying declaration, it appears

to us that the second dying declaration Exhibit 4/1 was recorded after

following due procedure and in presence of all the doctors under whom the

patient was admitted at that material point of time and also in presence of

other health officials of the said hospital.

Mr. Acharya, learned advocate for the appellants in course of his

argument though challenged the veracity of the second dying declaration

being Exhibit 4/1 on the ground that such dying declaration was recorded

after 12 hours of the recording of the first dying declaration and thus

chances of false implication of the present appellants at the instance of the

relatives of the victim cannot be ruled out on account of their tutoring but

the same does not appear to be much convincing to us in view of the facts

that for the reason best known to them both the parents of the victim i.e.

PW1 and PW4 became hostile and that there was no cross-examination of

PW13, PW14 and PW16 to the effect or even no suggestions was given to the

said prosecution witnesses.

16. On comparative study of the entire materials as discussed

hereinabove it appears to us that the veracity of the second dying

declaration being Exhibit 4/1 ought not to be doubted since the same is not

surrounded with any suspicious circumstances and on the contrary the first

dying declaration being Exhibit 6/1 as recorded by PW12 really creates

doubt in our mind with regard to its genuineness. At this juncture, if we

look to the evidence of PW7 it would reveal to us that he being a

'Muhalladar' of the locality of the accused persons testified that after

marriage the victim was well at her matrimonial home for two years and

thereafter trouble ensued in her family on account of torturing by the

present accused persons on demand of cash for the purpose of construction

of house and purchase of landed property. In his examination-in-chief he

further testified that after hearing the torture upon the victim he sometimes

went to the house of the accused persons and tried to persuade them not to

commit such thing but all his efforts went into vain. In his examination-in-

chief he further testified that on 19.03.2001 at about 11pm he heard the

cries of the victim and thus reached to her matrimonial home and found her

in burning condition on the verandah and at that time all the accused

persons were present there. He further testified that on being asked the

victim Sabina declared to him in present of the accused persons that the

accused persons poured kerosene oil on her person and set fire ablazed. He

was extensively cross-examined by the defence and on being asked he

testified that in his presence the accused persons returned all the nuptial

gifts of the victim to her paternal home. It is pertinent to mention herein

that with regard to his deposition that the victim Sabina disclosed to him as

to how she suffered burn injury at the instance of the accused persons,

there was no cross-examination on the part of the accused persons except a

suggestion was given to him that the victim Sabina did not disclose the

incident to him at that time. In view of such we consider that the deposition

of PW7 remains uncontroverted on which reliance can be placed to reach at

a logical conclusion of the instant appeal.

17. In the decision of Nallam Veera Stayanandam (supra) as cited from

the Bar the Hon'ble Apex Court while dealing with the subject of multiple

dying declaration expressed the following view:-

"in the case of multiple declarations each dying declaration will have to be considered patently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the Court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs."

18. In considered view of us if the yardsticks of acceptances of dying

declaration as decided by the Hon'ble Supreme Court in the reported

decision of Atbir (supra) is applied in the case in hand it would appear to us

that the learned trial court made no mistake while passing the impugned

judgement in placing his reliance upon the second dying declaration i.e.

Exhibit 4/1 since sufficient materials have been placed before the learned

trial court that such declaration was made by the victim in a fit state of

mind and the same is not the result of tutoring, prompting or imagination

and the same is true and voluntary. In course of hearing of the instant

appeal as discussed hereinabove nothing could be placed on behalf of the

present appellants that the second dying declaration i.e. Exhibit 4/1 was

either suffering from any infirmity or surrounded by any suspicious

circumstances for which the same should not be acted upon. Though not

necessary even if we exercise our prudence it would reveal that the contents

of the dying declaration being Exhibit 4/1 not only gets due corroboration

from the evidence of PW15 and PW16 but also from the evidence of PW7 who

being the 'Muhalladar' of the area of the accused persons categorically

stated the same facts and circumstances as recorded by the PW13 especially

when no case could be made out as against him (PW7) by the defence that

he had an enimical relationship with the convicts. The argument of Mr.

Acharya, learned advocate for the appellants that Exhibit 4/1 i.e. the second

dying declaration also suffers from material illegality since the same was not

recorded in verbatim but in a summarized form as stated by PW13 in his

cross-examination is also not acceptable to us since it is the settled position

of law that there is no requirement that a dying declaration must contain all

the details of the occurrence or that it should be in question and answer

form. On close scrutiny of Exhibit 4/1 i.e the second dying declaration it

appears to us that the same has been written practically in verbatim and in

clear and unequivocal manner for which we do not find any cogent and

coherent reasons to disbelieve the same either with regard to its true

contents or with regard to the manner of its recording.

19. In further considered view of us the decision of Makhan Singh (supra)

as cited from the side of the appellants has been delivered in a different

perspective which is quite distinguishable from the facts and circumstances

of the case involved in the instant case.

20. In view of the discussion made hereinabove we thus find no merit in

the instant appeal and accordingly the instant appeal is dismissed. As a

result the impugned judgement dated 27.09.2004 and the order of

conviction dated 28.09.2004 as passed by the learned Additional Sessions

Judge, Fast Track, 2nd Court, Midnapore in Session Trial no. XXIII of August

2001 is hereby affirmed.

21. Department is hereby directed to transmit the trial court record along

with a copy of this judgement at the earliest.

22. Department is further directed to forward a copy of this judgement to

the Secretary, Legal Service Authority, Paschim Mednipur for dong his

needful.

23. 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.)