Calcutta High Court (Appellete Side)
Pear Ali Gazi vs State Of West Bengal on 1 March, 2010
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Mr. Justice Kishore Kumar Prasad
C.R.A No. 67 of 1995
Pear Ali Gazi
-Vs-
State of West Bengal
For the Appellant : Mr. Dipak Mukherjee
Mr. Ujjal Kumar Dutta
For the State : Mr. Ranjit Ghosal
Heard on : February 23, 2010
Judgment on : March 1, 2010.
ASHIM KUMAR BANERJEE.J:
On or about October 14, 1988 Md. Unush Ali Molla of village Sarberia, Police
Station Sandeshkhali, District North 24-Parganas made a written complaint
with the Sandeshkhali Police Station to the effect that he was sitting in his
home along with Gobinda Biswas, Tapan Das, Majnu Gazi and Kalo Gazi
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when they heard a cry "fire fire". They rushed to the house of Pear Ali Gazi
and found his son in-law Mamud Ali lying nacked in the courtyard having
suffered burn injury all over his body. None of the household came forward
to save him. On being asked, Mamud told that his father in-law Pear Ali Gazi,
wife Bhodi Gazi and sister in-law Marzina Bibi had poured kerosene oil all
over his body and set fire to kill him. They escorted the victim in a rickshaw
van to the local hospital and informed Sarberia Camp. Doctor gave him first-
aid and considering his precarious condition, advised shifting to any Calcutta
Hospital. He took the victim to Nil Ratan Sarkar Hospital at Calcutta being
accompanied by Arun Sen, Moslem Sekh, Lutfar Molla, Moslem Molla,
Mozed Molla, Gobinda Biswas and Nesar Ali and got him admitted there.
Mamud Sekh ultimately died at the Nil Ratan Sarkar Hospital. Police
arrested Pear Ali and his two daughters being Bhodi and Morzina and
charged them for committing an offence punishable under Section 302/34 of
the Indian Penal Code. The accused pleaded innocence and faced trial. The
learned Trial Judge held Pear Ali guilty of the offence and convicted him
under Section 302 of the Indian Penal Code and sentenced him
imprisonment for life. The learned Judge, however, acquitted two ladies
from the charges.
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Perusal of the judgment and order of the Court below depicts that the learned
Judge based the conviction on the dying declaration made by Mamud Ali
firstly before the FIR informant and thereafter at the Nil Ratan Sarkar
Hospital.
Being aggrieved, Pear Ali preferred the instant appeal that was heard by us on
the above mentioned date.
Unush Ali Molla, the defacto complainant deposed as PW-1. He reiterated
what he had stated in the complaint before the police. He also deposed that
all parts of the body of the victim was burnt out. He along with his
companions removed the victim initially to Fakirtakia Mission Health Centre
by a van rickshaw and thereafter on being recommended by the doctor to Nil
Ratan Sarkar Hospital by lorry. He deposed that Sri Tapan Das had written
the complaint on his instruction. He deposed that while Mamud was slipping
his "body was set fire." While the victim was being removed from Mission
Health Centre to Nil Ratan Sarkar Health Centre by a lorry Mamud told him
and others present there that while he was asleep Pear Ali poured kerosene
oil on his body, so was his wife Bhodi as well as his sister in-law Morzina. He,
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however, admitted that he or any of his companions did not mention the
name of the accused before the doctor. According to him, the victim also did
not mention the name of the accused to the doctor at the Health Centre. He
also deposed in cross-examination that on the way to hospital he was unable
to speak, Pear Ali was also following them. Pear Ali had told them that as his
wife had refused to accompany him to his father's place for settling family
dispute he had committed suicide by setting fire.
PW-2, Tapan Kumar Das, scribe of the complaint corroborated PW-1. He
also deposed that victim had told them that his father in-law Pear Ali, his wife
Bhadi and his sister in-law Morzina had poured kerosene oil on his body and
thereafter set fire. PW-3 proved his signature on exhibit-2 being the dying
declaration recorded by one Laysel Hoque Molla (PW-6) at the Primary
Health Centre. Laysel Hoque Molla proved the exhibit-2 by deposing that he
had written the same as per the statement of the victim. PW-4 Moslem
Mollah denied to recognise the victim. He was declared hostile. However in
cross-examination by the prosecution he admitted to have accompanied the
victim along with others from the Health Centre to Nil Ratan Sarkar Hospital.
Laysel Molla, PW-6 also corroborated PW-2 and 3. He deposed that he wrote
exhibit-2 hearing the report at the market place after Mamud Ali was brought
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back there from the Health Centre on their way to Calcutta. He deposed that
when he had gone to the house of Pear Ali, Mamud had been unable to speak
and had been asking for water by indication. He, however, deposed, "up to
the time of departure of the lorry he was at the same market place. At that
time there was no discussion as to how the fire was caught."
PW-7 the doctor deposed that the patient had stated that his father in-law did
put fire on him after pouring kerosene oil. He had recorded the same in the
record of the hospital and tendered as exhibit-5. PW-8 Jakir Hossain also
feigned ignorance about the incident. He was declared hostile by the
prosecution. PW-9 identified his signature on exhibit-2 as witness. He
however, deposed that he did not know how the victim was burnt. PW-10
being another villager was also declared hostile. PW-13 proved the
postmortem report. According to him, the victim suffered hundred per cent
burnt injury except the skull. PW-16 is a post occurrence witness. He
deposed that victim Mamud was initially kept at the market place when he
was alive after being brought from medical centre to be to sent to Calcutta
Hospital. The victim was placed on a lorry at the market place and was sent
to Calcutta. He deposed that Lutfar, Mosem Molla were present. He also
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deposed that Mamud was also almost 'unconscious' and had an
"obliterated voice and was uttering some words."
Appearing for the appellant, Mr. Dipak Kumar Mukherjee, learned advocate
being assisted by Mr. Ujjal Kumar Dutta contended as follows :
i) The victim was twenty-five years of age whereas the accused was
seventy years at the time of commission of the alleged crime. Hence, it
was highly improbable that the appellant/ accused would commit such
crime.
ii) The prosecution case was highly improbable in absence of any motive
specially when the death of the victim would be a loss to the family of
the appellant.
iii) The persons who allegedly accompanied the victim to the Health Centre
and thereafter to Nil Ratan Sarkar Hospital being Arun Sen, Moslem
Sekh, Lutfar Molla, Moslem Molla, Mozed Molla, Gobinda Biswas and
Nesar Ali were not examined.
iv) The prosecution alleged that the accused poured kerosene oil on the
victim whereas the container was not seized by the police.
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v) Had the accused been involved in the crime he would have fled away
from the scene. The presence of the accused would itself prove his
innocence.
Mr. Mukherjee lastly contended that the story so built up by the prosecution
was highly improbable and did not have any corroboration. The learned Trial
Judge committed grave error in convicting the accused solely on the basis of
the alleged dying declaration which was not properly recorded.
Mr. Mukherjee prayed for setting aside of the judgment and order of the
Court below so that his client may be set at liberty.
Opposing the appeal Mr. Ranjit Ghosal, learned counsel for the prosecution
contended that there was no hard and first rule and/or formula to record a
dying declaration. Ordinarily it is recorded by a Magistrate. However, it
would depend upon the facts and circumstances of the case. In the instant
case, there was no opportunity either to the police or the hospital authorities
to arrange for a proper recording of the statement by a Magistrate. Such non-
compliance and/or deficiency would not, per se, demolish the case of the
prosecution.
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In support of his contention Mr. Ghosal cited the following decisions :
i) 1978, Criminal Law Journal, Page-766 (Inder Singh and Another
-VS- State (Delhi Administration)
ii) All India Reporter, 1979, Supreme Court, Page-1848 (Syad
Akbar -VS- State of Karnataka )
iii) All India Reporter, 1988, Supreme Court, Page-2013 (State of
Punjab -VS- Amarjit Singh)
We have considered the rival contentions. We have carefully perused the
evidence that came out during the trial. PW-1 consistently said that Mamud
had told him that Pear Ali, Bhodi and Morzina had poured kerosene oil on
her and set fire on him. The PW-2 corroborated the statement made by PW-
1.Their statement was however not supported by the hostile witnesses. PW- 6 Laysel Hoque Molla proved exhibit-2 by saying that he had written the said declaration hearing the report at the market place. If we consider exhibit-2 we would find that PW-6 Laysel Hoque Molla wrote that Mamud was burnt by his father in-law Pear Ali and his wife Bhodi and his sister in-law Morzina. If we discard exhibit-2 as well as the deposition of PW-1; 2 and 6 we would be left with exhibit-5 which was written by an independent witness. PW-7, the 9 doctor attached to Nil Ratan Sarkar Hospital treated the victim. He categorically stated that the victim had told him that his father in-law Pear Ali did put fire on him after pouring kerosene oil. PW-7 duly recorded such statement in the history sheet of the hospital being exhibit-5. During cross- examination he could not be shaken. Moreover no suggestion was put to PW- 7 to the effect that the patient had not stated to him that his father in-law had set fire on him or that exhibit-5 was not a genuine document. The suggestion was put to the witness to the effect that the word 'PT' meant patient party and not the patient. The doctor validly denied such suggestion. Suggestion was also put to him that a patient with hundred per cent injury could not speak. He denied such suggestion.
PW-16 stated that Mamud had been trying to say something in an obliterated voice. Hence, it could not be said that he was totally unable to speak making the dying declaration improbable.
It is quality of evidence and not quantity that matters in case of a sessions trial. The doctor unequivocally deposed that the victim had told him that his father in-law had poured kerosene oil on him and set him on fire. The doctor in the history sheet duly recorded such declaration made by the dying man. 10 The history sheet was tendered as exhibit-5. There is no scope to come to different conclusion other than what was observed by the Court below. The appeal fails and is, hereby, dismissed.
A copy of this judgment be sent to the correctional home, where the appellant is suffering his sentence, for his information.
Let the Lower Court Records along with a copy of this judgment be sent down at once.
Urgent xerox certified copy will be given to the parties, if applied for. Kishore Kumar Prasad, J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [KISHORE KUMAR PRASAD,J.]