Calcutta High Court (Appellete Side)
Nirapada Malick @Bhaja vs The State Of West Bengal on 18 September, 2023
Item No. 03
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajoy Kumar Mukherjee
C.R.A. 513 of 2010
With
C.R.A.36 of 2019
Nirapada Malick @Bhaja
Vs.
The State of West Bengal
For the Appellant(s) : Mr. Arunava Ganguly, Adv.
For the State : Mr. Ranadev Sengupta, Adv.
Heard on : 18.09.2023
Judgment on : 18.09.2023.
Joymalya Bagchi, J. :-
1.
Report is placed on record. Appellant had preferred CRA 513 of
2010. He has also preferred a subsequent appeal being CRA 36 of 2019
against the self-same judgment and order. The subsequent appeal is
dismissed as not maintainable. Paper book prepared in Criminal Appeal
No.36 of 2019 may be utilised to dispose of CRA 513 of 2010.
2. Appellant has assailed judgment and order dated 22.06.2010 and
23.06.2010 passed by the learned Judge, Special Court (E. C. Act)-
cum-Additional Sessions Judge, Hooghly in Sessions Trial No. 137 of
2002 arising out of Sessions Case No. 39 of 2002 convicting the
appellant for commission of offence punishable under Sections
498A/302 of the Indian Penal and sentencing him to suffer rigorous
imprisonment for three years and to pay fine of Rs.2000/-, in default,
to suffer rigorous imprisonment for two months more for the offence
punishable under Section 498A IPC and to suffer rigorous
imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer
rigorous imprisonment for six months more for the offence punishable
under Section 302 IPC. Both the sentences shall run concurrently.
Prosecution case:-
3. Prosecution case alleged against the appellant is as follows:-
Appellant was married to one Laxmi Malik, the deceased on 9th
Falgun, 1403 BS. Two months after the marriage, she was subjected to
mental and physical torture. On 30th Kartik, she was physically
assaulted and driven out from the matrimonial home. She took shelter
at her maternal uncles' house within Dadpur Police Station. Her
maternal uncles viz., Narayan Shee (PW 12), Buddhadeb Shee (PW 11)
and one Ganesh Ghosh (PW 7) went to her matrimonial home and
requested the appellant not to subject her to torture. Thereafter, Laxmi
was brought back to the matrimonial home by her grandfather, Badal
Shee (PW 13) on 4th Agrahayan. On 14th Agrahayan, Manindra Malick
PW 1), father of Laxmi received information that she had been set on
fire by her husband. The information had been communicated to her
maternal uncle by one Beno Ghosh. Manindra and others reached
Chinsurah I. B. Hospital where Laxmi was struggling for life. Her
daughter stated that appellant had poured kerosene oil on her and set
her on fire. Thereafter he ran away with one Bhaskar Malick.
4. On 3.12.1997, Manindra lodged written complaint against the
appellant resulting in registration of Polba P. S. Case No.124 of 1997
dated 03.12.1997 under Sections 498A/326/307 IPC. On that day
dying declaration of Laxmi was recorded by the Executive Magistrate,
Hooghly (PW 20) in presence of the Superintendent of the Hospital and
staff nurse Surachi Ganguli. Finally, Laxmi died in the hospital on
18.12.1997.
Proceedings before the trial Court:-
5. Charge sheet was filed against the appellant under Sections
498A/307/302 IPC. Charges were framed for the aforesaid offences.
Appellant pleaded not guilty and claimed to be tried.
6. In the course of trial, prosecution examined 23 witnesses and
exhibited a number of documents to prove its case.
7. In conclusion of trial, the trial Judge by the impugned judgment
and order dated 22.06.2010 and 23.06.2010 convicted and sentenced
the appellant, as aforesaid.
Evidence on record:-
8. Manindra Malick (PW 1) is the father and de-facto complainant.
He deposed his daughter was married to the appellant. She was
subjected to torture. On the fateful day, the appellant had set her on
fire. He received the information from his nephew viz., Pasupati Malick
(PW 10). He went to the hospital. He proved his signature on the written
complaint. The written complaint was proved by Baneswar Malik (PW 4)
as the scribe was dead. Baneswar Malik (PW 4) also corroborated his
brother Manindra with regard to torture on the housewife by the
appellant at the matrimonial home. He stated appellant had set the
victim on fire.
9. Buddhadeb Shee (PW 11) and Narayan Shee (PW 12) are the
maternal uncles of Laxmi. They stated after marriage Laxmi was
subjected to torture. Unable to bear the torture she took refuge at her
maternal uncles' house. Both the witnesses visited Laxmi while she was
admitted in the hospital. She disclosed to them her husband had set
her on fire.
10. Badal Shee (PW 13) is the grandfather of the victim. He deposed
Laxmi had been assaulted by her husband earlier. She took refuge at
his residence. He took her back to matrimonial home. He visited Laxmi
in the hospital and she informed him that her husband had set her on
fire.
11. Pasupati Malick (PW 10) is a cousin of Laxmi. He stated he heard
appellant had set his sister on fire. She died seventeen days after the
admission in the hospital.
12. The depositions of the relations are corroborated by Ganesh
Ghosh (PW 7). He stated that he is a Panchayat member. Laxmi had
been assaulted and driven out by her husband. He had taken her back
to her matrimonial home. Subsequently, she was admitted in hospital
with burn injuries. He went to the hospital and Laxmi told him that she
had been set on fire by her husband.
13. Bimalendu Dutta (PW 20) is the Executive Magistrate who
recorded the dying delcaration of Laxmi on 03.12.1993. He deposed at
9.30 P.M. as per order of S.D.O. Sadar Hooghly he went to the hospital.
The dying declaration was recorded in the presence of Superintendent
of Sadar Hospital and staff nurse Surachi Ganguli. The Superintendent
of the Hospital gave certificate that the patient was able to give her
statement. He proved the dying declaration (Ext. 6). His deposition
remains unshaken during cross-examination.
14. Post mortem report was exhibited as Ext.8. Post mortem report
shows first degree burns on the body of the deceased. Post mortem
doctor opined the cause of death was due to shock, complications from
burn injuries and ante mortem in nature.
15. Swapan Chowdhury (PW 21) is an employee of Imambarah Sadar
Hospital. He deposed bed head ticket of Laxmi Malick was seized in his
presence while Samir Kumar Biswas (PW 22), Wardmaster of District
Sadar Hospital proved the requisition from the hospital to police with
regard to the death of Laxmi on 18.12.1997.
16. First Investigating Officer viz., Rammohan Banerjee was not alive
and could not be examined. Nandan Kumar Panigrahi (PW 23), is the
second Investigating Officer. He stated he collected bed head ticket,
inquest report, dying declaration and post mortem report. He examined
witnesses and submitted charge-sheet.
Is cruelty on the housewife proved:-
17. Analysis of the aforesaid evidence would show during her
matrimonial life Laxmi had been subjected to torture by the appellant.
On an earlier occasion, she had been assaulted and driven out from the
matrimonial home. She took refuge at her maternal uncles' residence.
Badal Shee (PW 13), her grandfather and Ganesh Ghosh (PW 7),
Panchyat Member took her back to her matrimonial home. Thereafter,
on 30.11.1997 she was set on fire by the appellant and admitted to
hospital. Torture on the housewife is proved through the evidence of
her relations i.e. her father (PW 1), maternal uncles (PW 11 & 12),
cousin (PW 10) and grandfather (PW 13). Though two neighbours
Somnath Malick (PW 5) and Ratan Malick (PW 6) have been declared
hostile, another neighbour and Panchayat Member (PW 7) corroborated
the relations with regard to the torture on the housewife. The aforesaid
evidence remained unshaken in cross-examination and proves the
ingredients of the offence under Section 498A IPC.
Is the dying declaration reliable:-
18. Prosecution primarily relies on the dying declaration of the victim
to prove that the appellant had committed the murder. Victim had
survived for 18 days. While she was in hospital her maternal uncles
(PWs.11 and 12) and Panchayat Member (PW 7) had visited her at the
hospital. All these witnesses stated that the victims told the appellant
had poured kerosene oil on her body and set her on fire.
19. Learned Advocate for the appellant submits their evidence is
improbable as her father (PW 1) (who also visited her at the hospital)
did not state anything about the oral dying declaration.
20. I have given anxious consideration to this submission. Evidence
on record shows victim was close to her maternal uncles' than her
father. When she had been tortured earlier she took refuge at the
residence of her maternal uncles. Her grandfather (PW 13) and not her
father took her back to her matrimonial home. Her father received
information about her hospitalization after three days through
Pasupati, her cousin. These circumstances show father of the victim
was not at the hospital from the time of her admission. Moreover, his
involvement in the matrimonial woes of her daughter appears to be of a
lesser degree than her maternal uncles and grandfather. Appreciation
of evidence is to be done on the anvil of conduct of the witnesses and
other attending circumstances. Omission of the father to depose
regarding the dying declaration requires to be judged from this angle. It
may also be an accidental slip on his part as his brother Baneswar
Malik (PW 4) corroborated other witnesses regarding the dying
declaration.
21. Accordingly, I am unwilling to discount the evidence of PWs. 11,
12 and 13 i.e. maternal uncles and grandfather corroborated by a local
witness PW 7 with regard to the oral dying declaration made to them in
the hospital in the light of the accidental omission of PW 1 with regard
to this circumstance.
22. This apparent dichotomy would have otherwise gained
significance had not the oral dying declaration been hacked by a
written declaration (Ext.6) recorded by Executive Magistrate (PW 20).
On 03.12.1997 FIR was registered. After registration of FIR, upon the
direction of BDO, the Executive Magistrate (PW 20) went to the
hospital. In the presence of the Superintendent of the Hospital and staff
nurse, the dying declaration of the victim came to be recorded. In her
dying declaration the victim has categorically stated on Sunday i.e. on
30.11.1997 at 12.00 noon, she was cooking in the kitchen. Her
husband came into the kitchen and poured kerosene oil from a bottle
and set her on fire with a kerosene oil lamp. Thereafter, he fled away
with his friend Bhaskar. She cried out. Her mother-in-law intervened.
She tried to extinguish the fire by wrapping her with a polythene bag.
Thereafter, she was admitted to the hospital. The document Ext.6 bears
the left LTI of the deceased. It also bears the certificate issued by the
Superintendent of the hospital concerned that she was in a fit state to
make the declaration.
23. To rely on a dying declaration, it must be shown that the maker
was in a fit state to make the statement and the same is voluntary and
truthful.
24. I have examined the dying declaration from this perspective. The
declaration was recorded by the Executive Magistrate, a disinterested
public servant. He had no reason to concoct a false dying declaration to
implicate the appellant. He deposed the victim made the dying
declaration in the presence of the Superintendent of the Hospital. The
said Superintendent made an endorsement on the dying declaration
that the victim was capable to make the statement. Dying declaration
has been exhibited as a whole which contains the said declamation. No
question was put to PW 20 during cross-examination that the victim
was not fit to make the declaration. The aforesaid evidence on record
establishes beyond doubt that the victim was in a fit state to make the
dying declaration and the same was voluntarily made before a
disinterested public servant without any urging or prompting.
25. Truthfulness of the declaration is also established beyond doubt.
Evidence on record shows appellant was in the habit of subjecting the
victim to torture. Earlier she had been assaulted and driven out. On the
intervention of her grandfather and the local Panchayat member, she
was rehabilitated at the matrimonial home. This proves the motive to
commit the crime.
26. The victim stated that the appellant had poured kerosene oil on
her body and set her on fire with kerosene lamp. Her wearing apparels
had been seized by the police. Seizure list notes smell of kerosene oil in
the wearing apparels. Post mortem report (Ext. 7) records the victim
had suffered first degree burn throughout her body and had died due to
complications arising out of burn injuries.
27. These circumstances leave no doubt that the appellant had
poured kerosene oil on the victim and set her on fire. It rules out any
possibility of accidental or suicidal death.
Intention to kill:-
28. Finally, it is argued that the victim suffered first degree burns
and survived for 18 days. Hence, the conviction may be modified from
Section 302 to Section 304 IPC.
29. Appellant had poured kerosene oil on the helpless victim and set
her on fire. His intention to kill the victim is clearly evident. No
extenuating circumstance that is sudden or grave provocation or a
sudden quarrel is emanating from the evidence on record.
30. Hence, I am unwilling to convert the conviction of the appellant
from Section 302 to Section 304 IPC.
Conclusion:-
31. The appeals are accordingly dismissed.
32. Conviction and sentence of the appellant are upheld.
33. Period of detention suffered by the appellant during investigation,
enquiry and trial shall be set off against the substantive sentence
imposed upon him in terms of Section 428 of the Code of Criminal
Procedure.
34. Appellant does not have criminal antecedents. He appears to
have strong roots in the society. Upon completion of 14 years of actual
imprisonment, it shall be open to the appellant to take out an
application for remission of his sentence before the appropriate
authority. In the event, any application is made the said authority shall
consider the application in accordance with law keeping in mind the
aforesaid observation and conduct of the appellant in jail.
12. Let a copy of this judgment along with the lower court records be
forthwith sent down to the trial Court at once.
13. Photostat certified copy of this judgment, if applied for, shall be
made available to the appellants upon completion of all formalities.
I agree.
(Ajoy Kumar Mukherjee, J.) (Joymalya Bagchi, J.)
as/PA
