Bapi Biswas @ Balaram vs State Of West Bengal on 14 February, 2018

[Cites 7, Cited by 1]

Calcutta High Court (Appellete Side)

Bapi Biswas @ Balaram vs State Of West Bengal on 14 February, 2018

Bench: Joymalya Bagchi

1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj

C.R.A. 484 of 2013

Bapi Biswas @ Balaram
-Vs-
State of West Bengal

For the Appellant : Mr. Deep Chaim Kabir, Adv.,
Mr. Subir Debnath, Adv.,
Mr. Debajit Kundu, Adv.

For the State : Mr. Arun Kumar Maity, Ld. A.P.P.,
Mrs. Zareen N. Khan, Adv.

Heard on : 14.02.2018

Judgement on: 14.02.2018

Joymalya Bagchi, J. :-

The appeal is directed against the judgement and order dated 26th/29th

April, 2013 passed by the learned Additional District and Sessions Judge,

Ranaghat, Nadia in Sessions Trial No. 16(1)/2008 (Sessions Case No.

13(12)/2007) convicting the appellant for commission of offence punishable

under Sections 302 of the Indian Penal Code and sentencing him to suffer

imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer further

simple imprisonment for a period of six months more.
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The prosecution case, as alleged, against the appellant is to the effect that

he was married to the victim Minoti Biswas six years ago according to Hindu rites

and customs. At the time of marriage, dowry was given as per demand of the

bride grooms family. Few days after the marriage, the victim was subjected to

torture on further demands of dowry. Bimal Das (P.W.1), brother of the victim

requested the appellant and in laws to stop torture upon Minoti but to no avail. A

further sum of Rs.40,000/- was given to the appellant but the torture did not

abate. Finally on 3.3.2007 Bimal received information over telephone that Minoti

had been hospitalised at Ranaghat Hospital with severe burns. He went to the

hospital and found Minoti was under treatment. He believed that the appellant

and the father-in-law and the mother-in-law of the victim had set her on fire with

the intention to murder her. He lodged a written complaint at Ranaghat Police

Station resulting in registration in Ranaghat Police Station Case No.99 of 2007

dated 4.3.2007 under Sections 498A/307/34 of the Indian Penal Code.

Subsequently, Minoti died at J. N. M. Hospital, Kalyani, Nadia on 9.3.2007. In

conclusion of investigation charge sheet was filed under Sections 498A/302/34

of the Indian Penal Code against the appellant and Sefali Biswas, mother-in-law

of the victim. Charges were framed under Sections 498A/302/34 of the Indian

Penal Code against the accused persons. They pleaded not guilty and claimed to

be tried. The case being a sessions triable one was committed to the Court of

Sessions and was transferred to the Court of the learned Additional District and

Sessions Judge, Ranaghat, Nadia for trial and disposal. In the course of trial,

prosecution examined as many as 15 witnesses and exhibited a number of
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documents. In conclusion of trial, the learned trial judge by the impugned

judgement and order dated 26th / 29th April, 2013 convicted and sentenced the

appellant, as aforesaid. Co-accused Sefali Biswas was acquitted of the charges

levelled against her.

Mr. Kabir, learned Counsel appearing for the appellant argued that the

prosecution case has not been proved beyond reasonable doubt. There is no

direct evidence that the appellant had set fire on his wife. On the other hand,

some of the prosecution witnesses deposed that the appellant was not in the

house at the time of occurrence. Dying declaration made by the victim on her

way to the hospital has not been proved. Even the dying declaration recorded by

P.W.14, doctor at J. N. M. Hospital, Kalyani, Nadia is not free from doubt. There

is no reference of the dying declaration in the first information report recorded in

the instant case. Inquest report speaks of a case of suicidal burn which runs

counter to the dying declaration of the victim. Evidence of torture on the house

wife on demands of dowry had not been believed by the trial court. Hence, the

appeal is liable to be allowed.

On the other hand, Mr. Maity along with Mrs. Khan, learned Counsels

appearing for the State argued that the dying declaration of the victim recorded

by P.W.14 is reliable and implicates the appellant. Victim was conscious and

was able to speak at the time of recording of dying declaration. There is no

reason to disbelieve the medical personnel who recorded her dying declaration in

the instant case. Witnesses to the inquest not support the finding in the inquest
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report. Hence, the version recorded therein ought to be ignored. Thus, the appeal

is liable to be dismissed.

I have given my anxious consideration to the rival submissions on behalf of

the parties.

P.W.1, Bimal Das, is the brother of the victim and the de-facto complainant

in the instant case. He deposed that the victim was married to appellant six years

ago. Gold ornaments and Rs.15,000/- in cash were given at the time of marriage.

Two months after the marriage the victim was beaten by the appellant on

demand of further money. She disclosed the incident to him and he paid

Rs.40,000/- in all to the appellant on various occasions. In spite of such

payments, the victim was ill treated at her matrimonial home. She was set ablaze

on the day of Dolyatra. At 3.00 P.M., he was informed by a person that he had

received a telephonic message that his sister was serious and asked him to

proceed to Ranaghat Hospital. He and his brother rushed to Ranaghat Hospital

and found his sister lying in the hospital bed. Nobody was with her. Doctor told

them to transfer her to Kalyani Hospital for better treatment. His sister was

conscious and while they were taking her to Kalyani Hospital, she disclosed to

him that her husband and in laws had poured kerosene oil and set her on fire.

His sister died six days after the occurrence. He lodged First Information Report

at Ranaghat Police Station, marked as Ext.1. Police held inquest over the dead

body of the victim at Kalyani Hospital in his presence. He signed on the inquest

report, marked as Ext.2. Another inquest was held by the Magistrate. He also

signed on the inquest report, marked as Ext.3.
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In cross-examination, he stated that he was a cultivator by occupation.

Financial condition of the appellant was not good. The appellant was not a

gharjamai in their house. He denied that his sister was suffering from breast

cancer. He had not asked the Doctor whether her sister had made any statement

to him. He disclosed to the police at the time of inquest that his sister had told

him that the accused persons had poured kerosene oil and set her on fire.

P.W.2, Bharat Ghosh, is the neighbour of the appellant. He stated that on

Dolyatra day, the victim came out running on the road while she was burning.

They put off the fire and took her Anulia Hospital (Ranaghat). He was declared

hostile. He was cross-examined by the prosecution.

P.W.3, Mukul Paul deposed that he found the victim with burns and she

was taken in a van rickshaw to the hospital.

P.W.4, P.W.8 and P.W.9 are the neighbours of the appellant. They have

been declared hostile.

P.W. 4, in cross-examination, deposed that he stated to investigating officer

that he saw Minoti force Bapi to go out of the house and Bapi came out of the

house. Minoti closed the door of the house. He had also stated to Investigating

Officer that some time thereafter Minoti came out from the house in burning

condition.

P.W.6, Ananda Sarkar, is a neighbour of P.W.1. He was a signatory to the

inquest report. He proved his signature, marked as Ext.2/1.

In cross-examination, he stated that he did not state anything to the

learned Magistrate who held inquest.
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P.W.7, Smt. Rekha Das is the aunt of Minoti, the victim. She deposed that

the appellants set fire on Minoti by pouring kerosene oil. She signed on the quest

report, marked as Ext.2/2.

In cross-examination, she stated that she had told the police and the

Magistrate that the appellant had set fire after pouring kerosene oil on her.

P.W.11 is the Police Officer who held inquest over the dead body of the

victim. He proved the inquest report, marked as Ext.2/3. After the inquest, he

sent the body for post mortem examination.

P.W.12 is the Police Officer who was attached to Ranaghat Police Station

on 4.3.2007. On that day, he received a complaint from P.W.1 and drew up

formal First Information Report, marked as Ext.5.

P.W.13 is the Medical Officer who was posted at J. N. M. Hospital, Kalyani,

Nadia at the material point of time. He held the post mortem examination of the

victim and found the following injuries.

"1. Extensive superficial deep old burns involving whole body except
genitalia and scalp.

2. Curling of hairs on head seen.

3. Formation of scabs all over the burns seen.

4. On detachment of the scalp pus underneath the scalp seen.

5. No fracture or dislocation of any bone seen."

He opined that the death of the victim was due to septicaemia following the

above stated injuries which were ante mortem in nature. He proved the post

mortem report, marked as Ext.6.
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In cross-examination, he stated that in all cases the victim need not be

gagged or intoxicated to subject her to homicidal burning.

P.W.14 is the Medical Officer who was posted at J. N. M. Hospital, Kalyani,

Nadia. He deposed that on 3.3.2007 one Minoti Biswas was referred from

Ranaghat S. D. Hospital to J. N. M. Hospital, Kalyani, Nadia for treatment. He

examined Minoti Biswas, wife of Bapi Biswas on 3.3.2007 in the burn ward of the

hospital. He examined her at 19.30 hours. Before him, emergency Medical Officer

examined her. The victim was admitted in the Hospital on 3.3.2007 at 19.08

hours. The House Surgeon examined the patient and after examination, he

recorded the injuries in the bed head ticket. He examined the patient along with

another Medical Officer Dr. S. Middhya of J. N. M. Hospital, Kalyani, Nadia. On

examination, she was found conscious with extensive burns. As per statement of

the patient, her husband had poured kerosene oil all over her body and set her

on fire by matches on 3.3.2007 at about 12.00 noon in presence of her father-in-

law and mother-in-law. He deposed that he advised her to continue the drugs

already prescribed to her by the House Surgeon. He could not give the name of

House Surgeon. He examined the patient on 4.3.2007. The patient was conscious

and there were extensive burns or her body. He advised continuation of drugs

already prescribed. On 5.3.2007, his Assistant Dr. S. Middhya examined the

patient and on 6.3.2007, the House Surgeon examined her. On 5.3.2007 the

patient was conscious. On 7.3.2007, the House Surgeon examined the patient in

his presence. On 7.3.2007 the patient was drowsy and there was poor prognosis
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and the patient died on 9.3.2007. He proved the bed head ticket and his writings

and signatures thereon, marked as Ext.7.

In cross-examination, he stated that there is no writing in the report that

he examined the patient on 5.3.2007, 6.3.2007 and 7.3.2007. He did not report

the incident to the police. He got smell of kerosene on the body of the victim but

he did not mention the same in his report. When patients with burn injuries are

admitted in the hospital, some injections like pethidine, morphine, phenergon are

injected to the patients. The injections were administered before he recorded her

statement.

P.W.15 is the Investigating Officer in the instant case. He perused the First

Information Report, visited the place of occurrence, drew up rough sketch map

with index, marked as Ext.8. He examined witnesses under Section 161 of the

Code of Criminal Procedure. He made requisition at Kalyani Police Station for

recording statement of the victim. He tried to arrest the appellant who had run

away. He executed proclamation and attachment against the appellant. He

prayed for adding Section 302 of the Indian Penal Code after the death of the

victim. He collected the post mortem report, inquest report, bed head ticket of the

victim. He collected dying declaration of the victim recorded by Medical Officer.

He submitted charge sheet.

From the aforesaid evidence it appears that the victim died due to burn

injuries suffered by her at her matrimonial home on 3.3.2007 around 12.00

noon. She had been initially taken to Ranaghat S. D. Hospital and thereafter

shifted to J. N. M. Hospital, Kalyani, Nadia on the self same day. Immediately
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after admission, P.W.14 the Doctor who was treating the victim recorded her

dying declaration wherein she stated that she had been set on fire by the

appellant in the presence of her in laws. It is also pertinent to note that P.W.1

deposed that the victim had made a dying declaration on her way to the hospital

implicating the appellant and her in laws.

Learned Counsel appearing for the appellant criticised the dying

declaration made to P.W.1 on the premise that such fact is not reflected in the

First Information Report and is also not corroborated by other witnesses. It is

true that P.W.1 does not refer to any dying declaration in the First Information

Report. That apart, no other witness corroborates the version of P.W.1 that the

victim made a dying declaration on her way to the hospital.

In view of such fact, I am unwilling to rely on the sole version of P.W.1 with

regard to the purported dying declaration made by the victim to him in the

instant case.

However, the dying declaration made to P.W.14, the doctor at J. N. M.

Hospital who was treating the victim appears to be a reliable one. P.W.14,

deposed that the victim was admitted in the hospital on 3.3.2007 at 19.08 hours.

She was examined by the emergency Medical Officer and was examined by House

Surgeon and P.W.14. P.W.14 examined the victim and found her conscious.

Thereafter, he recorded the dying declaration of the victim in the bed head ticket,

marked as Ext.7. It has been argued that other medical officers have not been

examined in the instant case.
10
I am unwilling to reject the evidence of P.W.14 on such score as it appears

from the deposition of P.W 17 that the victim was under his care and he had

examined the victim on a number of dates till her death. The witness also

claimed that the victim was conscious on 5.3.2007 and 6.3.2007 and only on

7.3.2007

she became drowsy and finally died on 9.3.2007.

P.W 14 has also explained the absence of entries in his own handwriting in the bed ticket as such entries were made by his assistant Dr. S. Middya.

In view of the aforesaid evidence on record I find that the essential tests with regard to the admissibility and reliability of dying declaration recorded by P.W 14 had been established in the instant case. Evidence of P.W 14 and other attending circumstances of the instant case show that the victim, though extensively burnt, was conscious till 6.3.2007 and had made statement immediately upon admission. It has been argued that the sedative drugs were injected to the patient prior to the recording of statement and, therefore, such fact may have impaired her consciousness. It is true P.W 14 admitted that sedative drugs had been administered to the victim but I find that the dying declaration were recorded almost contemporaneously to her admission to the hospital and, therefore, I am of the opinion that such drugs could not have taken effect so promptly so as to render the victim unconscious. That apart, P.W 14 has specifically recorded that the victim was not only conscious on that day but remained so till 6.3.2007. It is nobody's case that the victim was incapable of speech. Hence, I am of the opinion that the twin tests of consciousness and 11 capacity to make the dying declaration has been fully satisfied in the facts of this case.

It has been argued that the allegation of homicidal death runs counter to the finding recorded in the inquest report by P.W 11 with regard to the cause of burn injuries on the victim. P.W 11 claimed that he had noted in the inquest report that the victim had set herself on fire due to torture at her matrimonial home. P.W 1, 6 and 7 were the witnesses to the inquest. None of the said witnesses supported P.W 7 in this regard. P.W 1 and 7 categorically stated that they had told the officer that the victim told them that the appellant had set her on fire. P.W 6 denied to have made any statement to P.W 11.

It is trite law that the contents of the inquest report is not direct evidence except what was seen or found by the officer. [See : George Vs. State of Kerala, 1998 SCC (Cri.) 1232 (Para 30)]. In the present case none of the witnesses have corroborated the contents of the inquest repot and, therefore, I am of the opinion that it would be incorrect to rely on the hearsay findings in the inquest report overlooking the dying declaration of the victim recorded by P.W 14 as aforesaid.

Finally, it has been argued that the appellant was not present at the place of occurrence.

I have gone through the evidence on record and I note that the appellant has not led any evidence to improbablise his presence at the place of occurrence. Some of the hostile witnesses have surmised to that effect but they had no direct knowledge as to the persons who were present in the matrimonial home of the victim at the time of occurrence. Apart from making a bald statement that he was 12 not present at the house during his examination under section 313 Cr.P.C. the appellant has not led any evidence to establish an alibi at the time of occurrence.

In view of such fact, I am of the opinion that the prosecution case against the appellant has been proved beyond reasonable doubt.

Conviction and sentence of the appellant are accordingly upheld. Appeal is dismissed.

The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 Cr.P.C.

Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.

(Joymalya Bagchi, J.) I agree (Rajarshi Bharadwaj, J.)

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