Calcutta High Court (Appellete Side)
Bapi Majhi @ Anukul Majhi vs The State Of West Bengal on 27 March, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Manojit Mandal
CRA 469 of 2016
Bapi Majhi @ Anukul Majhi
Vs.
The State of West Bengal
For the appellants : Mr. Himanshu De, Sr. Advocate
Mr. Navnil De
Mr. Rajeshwar Chakraborty
Ms. Dipannita Mukherjee
For the State : Mr. Sudip Ghosh
Mr. Bitasok Banerjee
Heard on : 12.03.2019
Judgment on : 27.03.2019
Manojit Mandal J.
The appeal is directed against the judgment and order of conviction
and sentence dated 28.04.2016 and 29.04.2015 passed by the learned
Additional District and Sessions Judge cum Judge, Special Court,
Chinsurah, Hooghly, in Sessions Trial No. 2215/12 (14 of 2003) arising
out of Sessions Case No. 214 of 2003 convicting the appellant under
Section 302 of the Indian Penal Code and sentencing him to suffer
imprisonment for life and to pay a fine of Rs.10,000/- (Rupees Ten
Thousand) in default rigorous imprisonment for 3 months for the offence
punishable under Section 302 of the Indian Penal Code.
2. The gist of the prosecution case levelled against appellant is to the
effect that victim Arati Majhi was taken by her maternal aunt to her aunt's
house on 24.10.2000. On the day of Kalipuja i.e. on 26.10.2000 at about
11:00-11:30 a.m. at Kalitala, the appellant had shown the victim to some
persons and said to them that he had love affair with her and he want to
marry her. People present at the P.O. were the villagers 'Gar' and Kalitola.
Thereafter victim, Arati Duley, got married with appellant. The further
case of the prosecution is that the said marriage was not accepted by the
parents of the appellant, namely, Bhatu Majhi, Arati Majhi and paternal
uncle Dinu Majhi. At last Rabin Ruidas gave shelter to Bapi Majhi and his
wife (deceased). On the following day, PW 1 Pratima Duley who is the
mother of deceased, came to the village 'Gar' and met her daughter. The
parents and paternal uncle of appellant came to her and demanded Rs.
50,000/-(Rupees Fifty Thousand). It was told by them that they would
accept the deceased if the said amount is paid. PW 1, mother of the
deceased, could not meet the said demand and for the same the deceased
was subjected to continuous torture. The PW 1, mother of the deceased
made repeated request and made payment of Rs. 12,000/-(Rupees Twelve
Thousand) by installment, so also gold ornaments weighing two bharis.
Further case of the prosecution is that unfortunately, on 16.012001 at
about 10/ 10:30 at night the hands and legs of the deceased were tied,
kerosene oil was poured on her and she was set on fire by the appellant on
the advice of his parents and paternal uncle. The deceased raised alarm,
which attracted the people of the locality. The maternal aunt and cousin
brother of the deceased, Swapan Duley (PW 5) came to the place of
occurrence and took the deceased to the hospital at Chinsurah by
ambulance. The deceased, as is revealed from the petition of complaint,
was fighting with death.
3. On the basis of the said petition of complaint, Haripal P.S. Case No.
03/2001 dated 18/1/2001 was registered under Section 498A /306 of the
Indian Penal Code (for short IPC).
4. Police investigated the case as usual and after completion of
investigation submitted charge-sheet against the appellant and others
under Sections 498A/302 of IPC.
5. Charge under Sections 498A and 302 of the IPC was framed against
the appellant and others.
6. Prosecution examined 18 witnesses and marked several documents
as exhibits. On the other hand, defence examined only one witness as DW
1 who is the appellant himself. In conclusion of trial, the learned Trial
Judge by judgment and order dated 28.04.2016 and 29.04.2016 convicted
and sentenced the appellant as aforesaid.
7. Mr. Himanshu De, Senior Advocate appearing for the appellant
argued that the impugned Judgment of conviction and order on sentence
are not sustainable and the appellant has been falsely implicated in this
case by the Investigating Officer to solve this case. It is contended that the
order of conviction and sentence is completely based on surmise and
conjecture and, thereby, does not warrant any positive cogent legal
reasoning. According to the appellant, the impugned judgment and order
of conviction and sentence is perverse, suffers from infirmities and is not
tenable in law. It is further contended that learned Trial Court while
passing impugned judgment and order of conviction and sentence against
the present appellant has failed to appreciate the whole evidence in its
entirety on the material point. It is further contended that the learned
Court below failed to consider that there was no eyewitness in this case
and the case is fully based on circumstantial evidence and, thus, in order
to convict the accused, the case has to be proved beyond all reasonable
doubts. It is further contended that deceased suffered burn injury and
was not conscious nor was she able to speak either to the Investigating
Officer (PW13) or to Doctor, Shivaji Daschowdhury. It is further contended
that the learned Trial Court has failed to appreciate the statement of the
appellant recorded under Section 313 of the Cr.P.C that "he was playing
cards at 'Gopinagure more', his wife was preparing bread in the house. He
was attracted by a hue and cry from his house. He went to his house
along with other 'para' people and saw his wife was burning. On enquiry,
he came to know that his wife caught fire when she was preparing bread
and he took her to the hospital immediately being assisted by Rabin
Ruidas, van puller, and other 'para' people. She told to doctor that she
caught fire somehow. No one set her on fire." It is further urged that no
statement was given by the deceased Arati Duley as she was not in a
condition to make such a statement and the I.O. has concocted the false
statement against the appellant. It is further submitted that the public
witnesses, namely, Kalpana Ruidas (PW 6), Sukumar Das (PW 9), Rabin
Ruidas(PW 10) and Samir Ruidas (PW12) did not support the case of the
prosecution. So, the appellant has been wrongly convicted and he should
be acquitted from this case.
8. On the other, Mr. Sudip Ghosh, learned Additional Public
Prosecutor, appearing on behalf of the State submitted that in case, the
dying declaration is truthful, the same may alone form the basis of
conviction without any corroboration. It is submitted that, notwithstanding
the fact that PWs 6, 9, 10 and 12 did not support the prosecution case,
but since the dying declaration is truthful, no corroboration is required.
Learned Additional Public Prosecutor appearing on behalf of the State also
relies on the Exhibit 6 to show that the doctor had made the endorsement
to the effect that "statement recorded in my presence" and submitted that
on this basis alone the appellant has been rightly convicted.
9. We have heard learned Counsels for the parties and considered their
submissions.
10. PW 1 is the defacto complainant, who is the mother of the deceased,
Arati Duley. It is her evidence that her daughter died 3 months after her
marriage. She went to the Chinsurah Hospital and she met with her
daughter. She saw burn injury on all over the body of her daughter except
face and mouth. Her daughter told, her husband, Bapi Majhi, tied her
hands and legs and thereafter poured kerosene oil and, thereafter set her
on fire. Her daughter was transferred from Chinsurah Hospital to Calcutta
Hospital. Her daughter died two days thereafter. She went to Haripal
Police Station and submitted a written complaint (exhibit 1) at Haripal
Police Station. This witness was extensively cross-examined by the
defence. She stoutly denied the defence suggestion that burn of her
daughter is an accident only and the accused did not set her daughter on
fire after tying legs and hands. Therefore, on scrutiny of the evidence of
PW 1, I find that PW 1 had taken prompt action after the occurrence and
she had fully corroborated her earlier statement made in the written
complaint (exhibit 1). I find nothing to shake the credence of her evidence.
There is no reason to believe why she would depose falsely against the
appellant. I do not find any justified reasons why PW 1 would implicate
the appellant falsely. PW 3, Atanga Duley, is the sister of PW 1. She has
deposed that she went to Chinsurah Hospital and on her asking deceased
disclosed that for non-payment of the balance amount, she was tied by her
husband and, thereafter, her husband poured kerosene oil on her person
and ultimately set her on fire. She saw severe burn injuries on the person
of the deceased. The deceased was ultimately transferred to Medical
College at Calcutta and there she died on the next night. The evidence of
PW 4 including her cross-examination reveals that after getting
information she and her son PW 5 went to Haripal Hospital. At there,
deceased told them that she was set on fire by her husband after pouring
kerosene oil on her person after tying her for non-payment of the balance
of amount of dowry. Subsequently, deceased was transferred to Chinsurha
Hospital and therefrom deceased was transferred to Medical College
Hospital where she died on the next day of her admission there. PW 5,
Swapan Duley, has duly corroborated the statement of his mother (PW 4)
by saying that on getting information regarding the incident of deceased
that he and his mother went to Hospital and there they heard from the
deceased, she was set on fire by her husband after pouring kerosene oil on
her person after tying her. The appreciation of these evidence of PW 1, PW
3, PW 4 and PW 5 makes it clear that they met with the deceased when
she was admitted in the hospital and they came to know from the deceased
herself that she was subjected to torture by her husband on the fateful
night and her hands were tied, kerosene oil was poured on her and she
was set on fire.
11. Postmortem was held by Doctor Amitava Das (PW 18). On
examination he found the following injuries on the person of the deceased:
1.Left side of cheek and chin.
2. Anterior and posterior aspect of neck
3. Left upper limb extending from upper part of left part arm to dorsal part left forearm all around.
4. Anterior aspect of right forearm up to fingers all around.
5. Both breasts
6. Posterior surface of chest wall.
7. Anterior and posterior surface of abdominal wall
8. Perineum.
9. Both gluteal region.
10. Right and left lower limb extending up to lower third of right and left leg all around. The ulcerated area were found congested and covered with pass and slough. All the injures showed signs of vital reactions. No other injury except those described could be detected even on artificial dissection and examination.
12. Doctor Amitava Das (PW 18) has opined that death was due to the effects of Septic absorption from infected ulcers resulting from burn injuries ante- mortem in nature. The said doctor has proved the post mortem report (exhibit 8) into evidence. On consideration of the evidence of PW 18 and the post mortem report (exhibit 8), I hold that deceased died due to the effects of Septic absorption from infected ulcers from burn injuries which is ante-mortem in nature.
13. PW 9 is Sukumar Das, who is the co-villager of the accused. He has stated that wife of Bapi died setting fire on herself. He does not know how and for what reason she set on fire. PW 10 is Rabin Ruidas. The evidence of Rabin Ruidas including his cross-examination reveals that on his asking wife of Bapi told that she set fire on herself when she was preparing bread. PW 12 is Samir Ruidas who has deposed that he carried the wife of Bapi by his van after she set herself on fire and received burn injury in her person. On asking he came to know that while she was preparing bread she set on fire. The evidence of these witnesses goes to show that they have nowhere stated in their evidence that they have witnessed the incident to the effect that Arati Majhi caught injury on her person while she was preparing bread. PW 9 did not make any whisper as to how she got herself on fire and PW 12 has not stated the source of knowledge for coming to know as to how the deceased caught fire. Defendant did not produce any witness to prove that the victim caught fire carelessly when she was preparing food. Therefore, on consideration of the evidence of PW 9, 10 and 12, I am of the view that their evidence is not convincing, acceptable and believable.
14. Since, the main thrust of the argument of the Counsel for the appellant is that the dying declaration is not trustworthy. I deem it appropriate to discuss the liability with regard to the dying declaration (exhibit 6). The Apex Court in the case of Ramilaben Hasmukhbhai Khristi and Anr. V. State of Gujarat, Suleman Yakubbhai Khristi Parmar V. State of Gujarat and Dahyabhai Ashabhai Khristi Parmer & Ors. V. State of Gujarat (2002) 7 SCC 56 has been pleased to hold as under:
"Under the law dying declaration can from the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of such a dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration."
15. The Hon'ble Apex Court in the case of Shakuntala V. State of Hariyana, AIR 2001 SC 2709 has taken into consideration its various decisions and culled out the principles governing dying declarations. It would be useful to reproduce para 9 of the judgment:
"9. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben vs. State of Gujarat (AIR 1992 SC 1817).
i.There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.[ Munnu Raja & Anr. V. The State of Madhya Pradesh (1976) 2 SCR 764)] ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of Uttar Pradesh v. Ram Sagar Yadav & Ors.(AIR 1985 SC 416) and Ramavati Devi V. State of Biahr (AIR 1983 SC 1640] iii. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [K. Ramachandra Reddy and Anr. V. The Public Prosecutor (AIR 1976 SC 1994)].
iv. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg V. State of Madhya Pradesh (1974 (4) SCC 264)].
v. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [Kaka Singh V. State of M.P. (AIR 1982 SC 1021)] vi. A dying declaration which suffers from infirmity cannot form the basis of conviction.[ Ram Manorath and Ors. V. State of U.P. (1981 (2) SCC 654)].
vii. Merely because a dying declaration does contain the details as to the occurrence. It is not be rejected. [State of Maharashtra V. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)] vii. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza and Ors. V. State of Bihar (AIR 1979 SC 1505)] ix. Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.[ Nanahau Ram and Anr. V. State of Madhya Pradesh (AIR 1988 SC 912)].
x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. V. Madan Mohan and Ors. (AIR 1989 SC 1519)] xi. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. [Mohanlal Gangaram Gehani V. State of Maharashtra (AIR 1982 Sc 839)]."
13. In the case of Paparambaka Rosamma v. State of A.P., reported at (1991)7 SCC 695, the Apex Court has taken a view that since the certificate of the Doctor was not to the effect that the patient was in a fit state of mind to make the statement the dying declaration cannot be accepted by the Court to form the sole basis for conviction. Another three Judge Bench in the case of Koli Chunilal Savji v. State of Gujarat, reported at (1999) 9 SCC 562, has held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying declaration of the deceased could not be ignored merely because the Doctor had not make the endorsement that the deceased was in a fit state of mind to make the statement. Since the decisions in the afroresaid two mattes were somewhat contrary, the matter was referred to the Constitution Bench in the case of Laxman v. State of Maharashtra, reported at (2002) 6 Supreme Court Cases 710. Paras 3 and 5 read as under:
"3. The juristic theory regarding acceptability of a dying declaration of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their Truth. The situation in which a man is one the death bed is solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has always to be on guard to see that the statement of the deceases was not as a result of either tutoring or promoting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant the dying declaration is not accepted. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer when it is recorded , no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recoding the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
5.The court also in the aforesaid case relied upon the decision of this court in Harjeet Kaur v. State of Punjab case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not only the declaration but application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Ors. V. State of A.P. (at SCC P.701, para 8) to the effect that"...in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration"
has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Ors. V.State of A.P. must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and Anr. V. State of Gujarat case."
16. I have examined the dying declaration (exhibit 6), which was recorded by PW 13, Sub-Inspector of Police. According to him, he was endorsed the Haripal Police Station Case No. 03 dated 18.01.01 for investigation. During investigation, he visited the P.O., prepared rough sketch map of the P.O. with index, seized a stove with oil, plastic jerrican with oil, match stick, a printed burnt bedsheet and bed head-ticket from Calcutta Medical College and Hospital. He further deposed that he recorded dying declaration of the patient at Medical College Hospital in presence of Dr. Sivaji Daschowdhury. The doctor stated to him that the patient had her capacity to make her statement and he took LTI of the patient on the dying declaration. He examined the witnesses and collected injuries report of the patient from Haripal Primary Health Centre. PW 13 had proved the rough sketch map with index (exhibit 5) seizure list (exhibits 3, 3(a) and 3(b)) and dying declaration (exhibit 6) into evidence.
17. In the cross-examination PW 13 testified that patient was brought to Haripal Hospital on 16.01.01 and she was brought to Calcutta Medical College and Hospital on 18.01.01. He recorded dying declaration of the patient on 20.01.01. This witness was cross-examined at length. He denied the suggestion that he submitted charge-sheet without any basis and he brought a false story against the accused through the investigation.
18. On careful examination of the evidence of PW 13, I find that his evidence to be reliable and trustworthy. He has clearly and categorically deposed that he recorded the dying declaration of the patient at Medical College and Hospital in presence of Dr. Sivaji Das Chowdhury, and said doctor stated to him that the patient had her capacity to make her statement and he took LTI of the patient on the dying declaration. PW 13 has also denied that he did not visit the hospital and he did not make the dying declaration of the patient or that the LTI appearing in the dying declaration is not the LTI of the victim. From the exhibit 6, dying declaration, it is found that Doctor Sivaji Das Chowdhury has made an endorsement to the effect that "statement recorded in my presence". On consideration of the evidence of PW 13 and exhibit 6, I hold that it cannot be said that deceased was tutored or did not make the statement.
19. It has been repeatedly held by the Supreme Court that it is not mandatory that a dying declaration should be recorded in a question- answer form, or that it requires corroboration if it is trustworthy and inspired confidence. In view of the law laid down by the Supreme Court, which has been extracted above, the submissions made by the learned Counsel for the appellant are without any course and the same are rejected.
20. In Kamalavva vs. State of Karnataka reported in (2009) 13 SCC 614, it has been held that the Doctor who was present at the time of recording the dying declaration had attached certificate to the effect it was recorded in his presence. The Hon'ble Apex Court rejected the technical objection regarding non-availability of a certificate and endorsement from the doctor regarding the mental fitness of the deceased. It was further held that the view taken by the Hon'ble Court in numerous decisions is that this is a mere rule of prudence and not the ultimate test as to whether or not the dying declaration was truthful or voluntary. In so far as the case before us is concerned, I may only note that there is no format prescribed for recording dying declaration and in the case in hand the doctor has given an endorsement to that effect that statement was recorded in his presence.
21. The Exhibit 6, dying declaration, discloses that deceased made a statement to PW 13 and the statement by the deceased is corroborated by the endorsement as made by Doctor Sivaji Daschowdhury in exhibit 6. The said statement also discloses that deceased stated to PW 13 that her husband poured kerosene oil on her person and put her on fire.
22. Another reason, why I find the dying declaration to be credible and trustworthy, is that, when the deceased was brought to the hospital on 16.01.01, she had herself made a statement to the PW 13 in presence of the doctor that her husband poured kerosene oil on her body and put her on fire. The evidence of PW 13, thus, lends support to the dying declaration.
23. In this case, the doctor Sivaji Daschowdhury has not been examined. No suggestion was thrown to the PW 13 that he did not record the statement of the deceased in present of doctor Sivaji Daschowdhury and the endorsement as appears in the dying declaration made by doctor Sivaji Daschowdhury is not the endorsement of said doctor. In view of that, I hold that the non- examination of the said doctor is not fatal. In the premises noted above, I may hold that the dying declaration recorded by PW 13 is reliable and trustworthy as the same was endorsed by the doctor Sivaji Daschowdhury.
24. Learned lawyer appearing for the appellant urged that the appellant has been falsely implicated by the police and the dying declaration recorded by PW 13 should be rejected.
25. In the case of Girja Prasad vs. State of Madhya Pradesh reported in AIR 2007 SC 3106 it has been held that "there is no rule of law, which lays down that no conviction can be recorded on the testimony of the Police Officials even if such evidence is otherwise reliable and trustworthy."
26. In a recent decision rendered by the Hon'ble Supreme Court of India in the case of Govindaraju alias Govinda vs. State By Sriramapuram Police Station , reported at (2012) 4 SCC 722, it has been reiterated that there is no rule of law, which lays down that no conviction can be recorded on the testimony of a Police Official and it is only when the interest of the police officer in the success of the case is motivated by overzealousness to an extent of his involving innocent people, that no credibility should be attached. Relevant portion of the judgment read as under:
"30.It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness."
27. There is no evidence on record or any fact to show that in the present case PW13, Mithun Banerjee acted in a motivated or overzealousness manner to the extent that he would involve an innocent person just to solve the case. Thus, argument of the Counsel for the appellant is unacceptable.
28. Defence has taken the plea that at the time of incident he was playing cards with 'Pacha', 'Srikanta' and 'Samir' at a place called 'Morer Matha' and he was attracted by a noise from the house of Rabin Ruidas. He rushed to the house of Rabin Ruidas and found his wife was burning. He tried to douse the fire and he took his wife to the hospital. Record goes to show that appellant did not produce the said 'Pacha', 'Srikanta' and 'Samir' before this Court to prove that at the time of the alleged incident he was playing cards with them. No explanation for non-production of the said witnesses has been assigned. This withholding speaks volume against the defence. Therefore, it may be concluded that the appellant's explanation that at the time of alleged incident he was playing cards at a place called 'Morer Matha' is unconvincing.
29. Appellant, as DW 1 had deposed that on hearing noise, he rushed towards the house of Rabin Ruidas and found that his wife was burning and he tried to douse the fire. In cross-examination, he clearly and categorically stated that he was not medically treated and he did not sustain injury at the time of rescuing his wife. I failed to accept such statement of the appellant as expressed. If the accused has attempted to save deceased then he would have suffered some burn injuries on his person. Since, the appellant did not sustain any injury on his person, it is not believable and acceptable that appellant tried to douse the fire or tried to rescue his wife.
30. In view of the above discussion I must hold that the appellant has failed to make out any case for interference with the impugned judgment and order of conviction and sentence passed by the learned Trial Court.
31. In the light of the above discussion, I find that there is no merit in the appeal. Therefore, the appeal is dismissed.
32. The Lower Court Record along with copy of this judgment be sent to the learned Trial Court below at once for information and taking necessary action.
33. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking.
I agree.
(Joymalya Bagchi, J.) (Manojit Mandal, J.)