Tripura High Court
Sri Parimal Das vs The State Of Tripura on 7 July, 2020
Bench: Akil Kureshi, Arindam Lodh
Page 1 of 44
HIGH COURT OF TRIPURA
AGARTALA
CRL. A.(J) 18 OF 2018
Sri Parimal Das
S/O Sri Lt. Ananta Kumar Das
R/O: Durlabhnarayan,
P.O. & P.S: Melaghar,
District: Sepahijala, Pin-799115.
----Appellant
Versus
The State of Tripura
----Respondent.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE ARINDAM LODH For the Appellant(s) : Mr. S. Kar Bhowmik, Adv.
For the Respondent(s) : Mr. Ratan Datta, P.P.
Date of hearing : 08/06/2020.
Date of delivery of
Judgement and order : ___/___/2020
Whether fit for reporting : YES/NO.
JUDGMENT & ORDER
(Arindam Lodh.J)
1. PRELIMINARY:-
1.1. The convict, Parimal Das has preferred the instant appeal questioning the legality and propriety of the judgment and order dated 31.03.2018, passed by the learned Additional Page 2 of 44 Sessions Judge, West Tripura, Agartala, in case No. S.T. (T-1) 120 of 2012, whereby and whereunder the appellant has been convicted under Section 302 of IPC and thereby sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with default stipulation.
2. THE RELEVANT FACTS AND BACKGROUND:-
2.1. The prosecution case, as has been unfurled, is that on 19.03.2008, one Amulya Barman, appearing at Melaghar police station, submitted a written complaint stating, inter alia, t hat about 15 years back, his sister Ratna Barman(Das) was given marriage with Parimal Das and after their marriage two children were born out of their wedlock. After a few years Parimal Das developed an illicit relation with one of his neighbour, namely Laxmi Chakraborty who used to torture his sister in presence of Parimal Das and, on 18.03.2008, at about 11 p.m. said Parimal Das poured kerosene oil on the body of Ratna Barman (Das) whereby she was set ablazed.
2.2. Upon receipt of the aforesaid written ejahar, the Officer-In-Charge of Melaghar Police Station registered Page 3 of 44 Melaghar P.S. Case No. 22/2008 under Section 302/109 of IPC against the accused persons, namely, Parimal Das and Laxmi Chakraborty. Thereafter, the case was endorsed to Shri Sanjoy Laskar, Sub-Inspector of Police for investigation.
2.3. During investigation, the investigating officer visited the scene of crime, prepared the hand sketch map, seized some articles from the place of occurrence in presence of the witnesses and recorded statements of the available witnesses under Section 161 Cr.P.C. He also arrested the accused persons and forwarded them before the court.
However, the investigating officer, Sri Sanjoy Laskar handed over the case to the O/C Melaghar P.S. as, in the meanwhile, he was transferred. Thereafter, S.I. Milan Datta took up the investigation of the case on 29.03.2008. He collected the dying declaration of the deceased from Melaghar Hospital, fire service report and also collected the post-mortem report. After completion of investigation, I.O submitted the charge-sheet with regard to the alleged commission of offence under Sections 302/109 against Smt. Laxmi Page 4 of 44 Chakraborty and under Section 302 of IPC against Parimal Das, the appellant herein.
2.4. The case was committed to the Court of learned Sessions Judge. Having received the records of the case, the learned Addl. Sessions Judge framed charge against the Parimal Das under Section 302 of IPC. However, vide order dated 18.11.2009, Smt. Laxmi Chakraborty, the co-accused, who was charge-sheeted under Sections 302/109 of IPC was discharged.
2.5. During trial, the prosecution examined as many as 22 witnesses to substantiate the charge. After recording of evidence, the accused-appellant was examined under-Section 313 of Cr.P.C., to which he denied all the incriminating materials as surfaced from the prosecution evidence. He denied the evidence as false and reiterated that he has been falsely implicated in connection with this case. 2.6. The learned trial court took up the following points for discussions and decision:
Page 5 of 44
(i) Whether the accused person had intentionally set fire by pouring Kerosene oil to his wife Ratna Barman on 18.03.2008 at about 11 pm and consequently Ratna Barman died at GBP Hospital, Agartala on 19.03.2008 at about 8.30 am due to the severe burn injury?
(ii) Whether the accused person had intentionally committed murder setting fire by pouring Kerosene oil?
2.7. After hearing the arguments of both sides, learned trial court held the appellant guilty of committing offence and convicted and sentenced him as afore-stated. 2.8. Hence this appeal.
3. SUBMISSION OF THE LEARNED COUNSEL FOR THE APPELLANT:-
3.1 Criticizing the findings returned by the learned trial judge, Mr. S. Kar Bhowmik, learned counsel for the appellant strenuously argued before us that the learned Trial Judge ought to have held that the instant case was a clear case of suicide. Mr. Bhowmik, learned counsel tried to persuade this Court that the deceased, being suffered 95% burn injuries, lost her consciousness on the spot and she was not in any Page 6 of 44 way be said to be in a fit condition to give a dying declaration as she never regained her senses. He further contended that P.W.-21, though was informed about the commission of cognizable offence, did not lodge suo moto c omplaint which led the prosecution case being doubtful.
3.2. Next, the learned counsel contended that P.W.-1 was not the eye-witness of the incident and he admitted in his cross-examination that he found the appellant in the lock-up wearing a towel. Contrary to that statement, P.W.-21, the investigating officer, Sri Sanjoy Laskar in his cross examination stated that he arrested Parimal Das from his house at about 1750 hours on 19.03.2008 as per case dairy No.1(c). According to him, the defence story finds corroboration from the statement of P.W.-1 that the accused-appellant went to the police station wearing a towel to seek police help. However, he was detained there illegally.
He argued with vehemence that had he been understood that he would be implicated with the murder of his wife, he never would have gone to the police station immediately after the incident. Learned counsel urged that the conduct of the Page 7 of 44 appellant just after the incident was relevant and required to be looked into.
3.3. Learned counsel also tried to discredit the versions of P.W.-3 Smt. Lila Barman one of the two staff nurses, who were the witnesses of the dying declaration recorded by P.W.-10, Dr. Dhruba Prasad Pal. Showing the duty roster of Melaghar Hospital on the relevant date and time, learned counsel for the appellant tried to convince us that P.W.-3 could not be said to be present at the time of recording of the dying declaration by P.W.-10 since, from the evidence of P.W-22, i.e. the last investigating officer, who submitted charge-sheet, stated that he recorded the statement of Lila Barman and Sipra Ghosh on 29.03.2008 at 12.00 noon at Melaghar Hospital. According to the learned counsel, at that point of time, none of the nurses were on duty as per Exbt-D-1 (the duty roster of the nurses of the Melaghar Hospital for the month of March 2008) . Relying upon this, the learned counsel urged before us that the statement made by P.W.-3, Lila Barman under Section 161 of Cr.P.C. should not be believed.
Page 8 of 44 3.4. Learned counsel for the appellant also relied upon the register of female patients (Exbt-D2) to nullify the statements of P.W.-22 that he collected the dying declaration from Melaghar Hospital. According to him, from the register of female patients (Exbt-D2) it would be evident that one Subrata Pal, A.S.I. received the dying declaration on 09.05.2008 from Anamika Das. For the same reason, learned counsel submitted that there were two dying declarations which surfaced in the instant case making the prosecution case all the more doubtful.
3.5. It was further contended that in the injury report dated 25.03.2008 of Melaghar Hospital (Exbt-4) which was written by P.W.-10 with initial stating that, "the patient was referred to G.B.P.H. within ½ hours after resuscitation" according to learned counsel, there were serious doubts in regard to insertion of another sentence against which no initial was found, and ultimately, the learned counsel for the appellant contended that the dying declaration was a manufactured one and could not be relied upon.
Page 9 of 44 3.6. Next, learned counsel submitted that the neighbouring witnesses who deposed before the Court should not be believed as because many of them actually had enmity with the accused-appellant and the persons who shifted the victim to Melaghar Hospital were not examined and there was no explanation from the investigating officer as to why they were not examined. Relying upon the evidence of P.W.-11, Smt. Dipti Rani Das @ Payel, Mr. Bhowmik, learned counsel submitted that she was the only witness who had reached the scene of crime and she was cross-examined on 05.09.2011, when she was minor and under the captivity of her maternal uncle and aunts. She was examined again on 25.11.2011 for the second time when she turned major and came out of the clutches of her maternal uncle and aunts. In her cross examination on 25.11.2015, she stated that her mother had committed suicide on 18.03.2008 at night by setting fire to her person and her father tried to extinguish the fire and in that process suffered burnt injuries to his person. She further deposed that her mother was unconscious on the spot and which she never regained till her last breath. Learned counsel Page 10 of 44 for the appellant pointed out that her said statement was found in corroboration of the statement of P.W.-4, Pinku Dey. The learned counsel relied upon the following judgments of the Supreme Court as well as this Court:-
"1. 2014(2) TLR 566. (Para 12-23) Cog. Offence. O.C. duty bound to lodge FIR.
2. 2007 (13) SCC 501. (Para 26) In Murder case FIR cannot be lodged after Inquest.
3. 2016(4)SCC 96. (Para 20) Delay in recording 161 statement.
4. 1995 Supp(4)SCC 126. (Para 11,12,13) Dying Declaration, Physical and mental state.
5. 1976(3)SCC 618. (Para 11, 12) Dying Declaration. Fit State of mind and body.
6. 2017 (3) SCC 330. (Para 18, 21, 24, 28, 29) Without pronouncement of Judgment in open Court, signed and dated, it cannot be treated as Judgment."'
4. SUBMISSION OF LEARNED P.P.:-
4.1 On the other hand, Mr. Ratan Datta, learned P.P. defending the judgment of the Trial Court heavily relied upon the dying declaration as recorded by P.W.-10. He contended that doctor is an independent person having no interest to manufacture the dying declaration. He contended that the staff nurses also had no enmity with the accused-person to depose falsely that they were the witnesses to such a dying declaration as narrated by the victim. He further contended that there was no reason to Page 11 of 44 disbelieve the opinion and statements of P.W.-10, Dr. Dhruva Prasad Pal for the reason that he specifically stated that on being asked, the victim disclosed her name and other particulars and stated that her husband had set her on fire.
5. EVIDENCE:-
5.1 Before we delve into the merits of the submissions of the learned counsels for the parties to the lis, let us make a survey of the evidence and materials brought on record by the prosecution in order to judge the sustainability of the conviction of the appellant.
5.2 Though prosecution introduced 22 witnesses, according to us, the most important and relevant witnesses are PW-1, PW-2, PW-3, PW-6, PW-7, PW-8, PW-10, PW-11 PW-20 and PW-21.
5.3 P.W 1, Sri Amulya Barman is the informant and the brother of deceased, Ratna Barman (Das). In his deposition Page 12 of 44 P.W- 1 stated that about 17 years back his sister was married to accused-Parimal Das, who was a police officer. P.W-1 further stated that while the accused was promoted as Darogababu, he purchased a land near Jagnnath Bari Road at Melaghar and subsequently, the accused developed an illicit relationship with one Laxmi Chakraborty, and on being objected by the deceased, the accused used to torture her. P.W-1 further stated that on 18.03.2008 at about 11 p.m. he received telephonic information from one unknown person that his sister received severe burn injuries and she was shifted to Melaghar Hospital for treatment from where she was shifted to GB Hospital for treatment. P.W-1 further deposed that while he was escorting his sister (Ratna Barman) to GB Hospital, his sister stated that the accused had set her on fire by pouring kerosene oil. His sister expired at G.B. Hospital. Subsequently, he submitted his complaint with the O/C of Melaghar Police station against the accused-Parimal Das and Smt. Laxmi Chakraborty. 5.4. P.W 2, Sri Biplab Chakraborty is the neighbour of the accused-appellant as well as the deceased. He deposed Page 13 of 44 that on 18.03.2008 at about 11.00 P.M. after hearing commotion from outside, he rushed out from his hut and proceeded towards the house of accused-appellant. He found there a group of people, and he observed that one female was burning in the house complex of the accused-appellant. He informed the matter to the fire service station at Melaghar over phone. They found the gate of the accused-appellant locked from inside. They broke it down and entered into the house complex. He further deposed that they found the wife of the appellant was burning under a small jackfruit tree near their latrine when she was crying, saying "Mairalaiche, Mairaliche" ('killed killed'). Proceeding further, this witness deposed that on being asked, the wife of the accused-appellant stated that the accused, Parimal Das set fire to her by pouring kerosene. He deposed that Parimal Das had fled away before their arrival.
In cross-examination, the defence tried to make out a case that he had enmity with the appellant regarding purchase of land. No further relevant materials were elicited from his cross-examination.
Page 14 of 44 5.5. P.W. 3, Lila Barman deposed that she was on duty as staff nurse on 18.03.2008 and at about 11.45 P.M. one female patient was brought with a history of burn injuries. At that time, Dr. Dhurba Prasad Pal was on duty as medical officer who examined the said female patient and during examination, she stated in their presence that "Amar Swami Amar Gaoe Agun Lagaiya Darja Tala Diya Barit Thaika Bhaigya Geche. " She further deposed that Dr. Pal had recorded the said statement of the victim. P.W-3 put her signature (Exbt-2) on the said recorded statement of the victim.
In her cross examination, she stated that the female patient had sustained 95 % burn injuries. Being confronted, P.W.-3 stated that there were three shifts for duty i.e., morning, evening and night. Morning duty was from '8.00 A.M. to 1.30 P.M ', evening duty was from '1.30 P.M. to 8.00 P.M'. and night duty was from '8.00 P.M. to 8.00 A.M'. The certified copy of the duty roster relating to staff nurses of Melaghar Hospital for the month of March 2008 was marked as Exbt-D-1. The certified copy of the female register of patients of 2007-2008 containing the entries was marked as Page 15 of 44 Exbt-D2. The certified copy of the vehicle movement register of 2008 of vehicle No. TR.01-B-0928 was confirmed by P.W.-3 and marked as Exbt-D3. P.W.-3 denied the suggestion that she took part in the manufacturing of the dying declaration as instructed by her superior Dr. Dhruva Prasad Pal and I.O. 5.6. P.W.-4, Pinku Dey was a neighbour of the accused-appellant. She deposed that on hearing the cry of "Bacho Bacho" ( 'save save') she along with other people entered into the house complex of the accused-appellant breaking the gate and found the wife of the accused-appellant burning near their latrine.
In cross examination, the statement of P.W.-4 "bacho bacho' was found to be absent when her attention was drawn under Section 161 of Cr.P.C.
5.7. P.W.-5, Dhirendra Debnath deposed that he wrote the ejahar on the basis of the oral version of one Amulya Barman of Taxapara area. He identified the ejahar as well as his signature thereon (Exbt-1/1 & Exbt-1/2 respectively) .
Page 16 of 44 5.8. P.W.-6, Uttam Barman, a fireman, deposed that on 18.03.2008 after receipt of information, they rescued the victim who disclosed her name as Ratna Barman (Das), wife of Parimal Das. At that time, she stated that her husband Parimal Das set her on fire by pouring kerosene. Nothing material could be elicited from cross examination to contradict his deposition which he made in his examination-in-chief. 5.9. P.W.-7, Monoranjan Debbarma was also a fireman on duty on 18.03.2008 and was one of the members of the team who rescued the victim. He deposed that at the time of shifting the victim to hospital, on being asked, she disclosed her name as Ratna Barman (Das) and it was her husband who set her on fire by pouring kerosene. Later on, they came to learn that she died.
In his cross-examination he denied the suggestion that the victim was not in a position to speak. 5.10. P.W.-8, Swapan Sen deposed that he knew both the accused-appellant and his deceased wife being the residents of the same locality. He deposed that on 18.03.2018 Page 17 of 44 at about 11.00 P.M. after hearing the hue and cry, he rushed to the house of Parimal Das and found the wife of Parimal Das in burning condition under a jackfruit tree. She was whimpering 'oh- oh' sound and saying that the father of Payel i.e., the accused-appellant set her on fire. By that time, fire brigade people had arrived there and shifted her to Melaghar Hospital.
In his cross-examination, he stated that though he is not a close neighbour of appellant but he was a co-villager. He denied the suggestion put forth by the defence that he did not hear the whimpering sound of 'oh oh'. 5.11. P.W.-9, Sajal Dey was posted as A.S.I of Police at G.B. outpost under East Agartala P/S. On being instructed, he prepared the inquest report of the dead body of the victim whereupon he put his signature after preparation (Exbt-3 & Exbt-3/1 respectively).
5.12. P.W.-10, Dr. Dhruba Prasad Pal was posted at Melaghar Hospital as Medical Officer on 18.03.2008 and on 19.03.2008. He deposed that on that day, he performed Page 18 of 44 duties during night hours and one Lila Barman and another Sipra Ghosh, staff nurses had performed their duties with him in the hospital. He further deposed that the victim, Ratna Barman (Das) with burnt injuries was admitted to Melaghar Hospital on 18.03.2008 at 11.45 P.M. Proceeding further, he deposed that on being asked the patient disclosed her name and other particulars. The police of Melaghar Police Station had sent a requisition to him for recording the dying declaration of the victim and, accordingly, he recorded her dying declaration in presence of Lila Barman and Sipra Ghosh. The Doctor further deposed that he recorded the dying declaration of the victim as per exact versions in her own language, which is reproduced here-in-below:-
" AMAR SWAMI AMAR GAOE AGUN LAGAIYA DARJA TALA DIYA BARIT THAIKYA BHAIGYA GECHE" .
He identified the dying declaration (Exbt-2/1) and his signature thereon (Exbt-2/2). He further deposed that he had given the certificate about the mental condition of the victim in the said statement of dying declaration itself. He put his signature thereon with date and time. The certificate and his signature were marked as Exbt-2/3. He also deposed that Page 19 of 44 after examining the victim he prepared a report which being identified was marked as Exbt-4.
In his cross-examination he clarified that poor consciousness is a positive degree, very poor consciousness will be a comparative degree and very very poor consciousness will be a superlative degree. Further he denied the suggestion put forth by the defence that the victim sustained 95 % burnt injuries and was unconscious till her last breath and that the victim never disclosed her name and other particulars. He further denied the suggestion that the dying declaration was fabricated.
5.13. P.W-11, Dipti Rani Das @ Payel appeared before the Court for examination on 03.09.2011 and she is the daughter of the victim and the appellant. She deposed that her father as well as Laxmi Chakraborty used to torture her mother. She further deposed that on the fateful night, they were sleeping, when their mother called her by name and when she woke up she saw her mother burning on fire. She further deposed that her mother was tied with a mango tree Page 20 of 44 while she was saying her father had burnt her by sprinkling kerosene. At that time, many people entered their house.
Her cross examination was recorded on 05.09.2011. During her cross examination, she denied the suggestion that her father was trying to extinguish the fire.
During cross examination, her statement made under Section 161 of Cr.P.C to the effect that her (victim) mother was tied with a mango tree was found to be absent. She was further cross examined by the Court on 25.11.2015 when she stated a total opposite version of what she had deposed during her examination-in-chief. She stated that her mother had committed suicide on 18.03.2008. She further stated in cross-examination that she could not reveal the actual fact due to the pressure from her maternal uncles.
5.14. P.W.-12 , Bipad Goswami is the seizure witness who identified the seized material which was marked as Exbt-6/2 and seized alamats were marked as Exbt.M.O.1 series.
Page 21 of 44 5.15. P.W-13, Ranjit Goswami deposed that he saw the fire from outside the house of the appellant.
5.16. P.W.-14, Smt. Prava Barman is not a material witness.
5.17. P.W.-15, Titu Paul deposed that on that fateful night she saw the victim almost in a dying condition in front of the latrine of the accused-appellant. He was declared hostile.
5.18. P.W.-16, Sentu Dey is a close door neighbour and he was also declared hostile.
Being confronted with cross examination, this witness stated that "It is the fact that I heard from outside of the house of Primal Das that she was loudly crying by saying to save her (Bachou Bachou)"
5.19. P.W.-17, Ranjita Goswami, was found to be of no importance considering the relevant materials of the case.
Page 22 of 44 5.20. P.W.-18, Head Constable, Rasharaj Debnath handed over the dead body to the autopsy surgeon and after post mortem handed over the dead body to the relative of the victim.
5.21. P.W.-19, Dr. Ranjit Kr. Das deposed that on 19.03.2008, he was posted as in-charge of the Department of Forensic Medicines, AGMC & GBP Hospital. He deposed that during autopsy, the burnt injuries were found all over the body except dorsum of both feet and some portion of soles and the body was having 95 % burn injuries which were antemortem in nature.
5.22. P.W.-20, Smt. Sankari Das recorded the statement of Dipti Rani Das @ Payel and Joyel Das under Section 161 of Cr.P.C., the daughter and son of the victim. 5.23. P.W.-21, S.I. Shri Sanjoy Laskar substantially investigated the case.
Page 23 of 44 5.24. P.W.-22, Shri Milan Datta took over the investigation after transfer of the previous I.O. i.e., P.W.-21. He deposed that during his part of investigation he collected the dying declaration of the deceased from the Melaghar Hospital on 29.03.2008. He identified the same as Exbt-2/1. He further deposed that according to his requisition, the statements of Payel Das & Joyel Das were recorded under Section 164 of Cr.P.C. He also recorded the statement of Dr. Dhruva Prasad Pal, Lila Barman and Sipra Ghosh under Section 161 of Cr.P.C. He finally submitted the charge-sheet.
6. We have given a bird's eye view of the aforesaid evidence and materials on record. We also have kept in our mind the rival contentions advanced by the learned counsel appearing on behalf of the parties.
7. At the outset, we have taken into account the post mortem report (Exbt 9/1) which was prepared by P.W.-19, Dr. Ranjit Das. He opinied that:-
"cause of death in this case is shock resulting from 95% burn injuries, caused by flame."
Page 24 of 44 There is no reason to disbelieve the post-mortem report and the deposition of P.W.-19 who has supported his findings in the post-mortem report
8. Enough emphasis was given by the learned counsel for the appellant that it was an absurd proposition that a person having suffered 95% burnt injuries could give a dying declaration. Keeping in mind the aforesaid submission, we have examined and evaluated the evidence on record. Almost all the prosecution witnesses have deposed that after hearing loud cry they came out of their respective houses and found the wife of the appellant burning. The entry gate was locked from inside. They broke down the lock and entered the house complex to save the victim-lady. The fact and circumstance that many persons had gathered to his house was admitted by the appellant too in his examination under Section 313 of Cr.P.C., which would be evident from his answer in respect of question Nos.7 and 38:-
" Question No.7. It appears from the evidence of PW-2, Sri Biplab Chakraborty that on 18.03.2008 at night he heard some shouting from outside and thereafter he came out of his house and went near to your house and found huge number of people gathered there and also observing a female person was burning in your house complex.
Page 25 of 44 Do you have anything to say in this regard? Answer: I don't know whether there was any witness at that time. However, at the outcry of mine and my children the people from the area came there."
Question No.38. It also appears from the evidence of PW-11, that at the material time many people came there while her mother was buring and you were also present there.
Do you have anything to say in this regard? Answer: Yes Sir. When the people came, they saw my wife in burnt state."
9. That fact that the firemen from Melaghar Fire Station also came to the spot to rescue his wife was also admitted by the appellant which would be evident from his answer to question Nos.19 and 20.
Question No.19 and 20 are reproduced here-in-below for reference:-
" Question No.19 It appears from the evidence of P.W.-6, Uttam Barman and PW-7, Monoranjan Debbarma that on 18.03.2008 they were posted as Firemen of Melaghar Fire Service Station and on that day at about 11 PM they received a fire call from the side of Jagannath Bari, Melaghar.
Do you have anything to say in this regard? Answer: Evidence is true.
Question No.20. It also appears from the evidence of PW-6 and 7 that immediately the witnesses along with other fire service staff rushed to the spot and rescued one female person with burn injuries and with the help of local people they shifted the victim to Melaghar Hospital by their vehicle Do you have anything to say in this regard. Answer: Evidence is true."
Page 26 of 44
10. In view of this admission of appellant that many persons including the firemen had gathered at the spot and they found his wife burning, we have scrutinized the evidence of the prosecution witnesses and the firemen who adduced their evidence in course of trial.
11. P.W.-2, Sri Biplab Chakraborty has categorically stated that "the wife of the accused was crying and telling such as Mairaliche Mairaliche" and on being asked, the wife of accused stated that the accused-Parimal Das set fire on her person by pouring kerosene. The words "Mairaliche Mairaliche" is the colloquial language i.e., vernacular versions used in the state which is known to one of us (A. Lodh, J) which means somebody has 'killed,killed'. We are not unmindful that the witness has used the words in its exactitude.
12. P.W.-8, Sri Swapan Sen, another neighbour of the appellant has stated in his evidence that after hearing loud voice, he rushed to the spot "when the victim was whimpering Page 27 of 44 'oh-oh' " and telling that father(appellant) of Payel (P.W.11) set her on fire.
13. The aforesaid statements of P.W.-2, P.W.-8 were made when the victim was burning. This statement being made during the course of burning is evidence of res gestae and is a relevant fact under Section 6 of the Evidence Act. Section 6 is an exception to the rule of evidence that hearsay evidence is not admissible. The principal test for applying the rule of res gestae is that the statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction, [Javed Alam Vs. State of Chhattisgarh, (2009) 6 SCC 450]. Here, the prosecution has been able to successfully establish the evidence of res gestae.
14. Furthermore, it inspires further confidence to our conscious mind when P.W.-2 had deposed in the actual language "Mairaliche Mairalaiche" [(somebody) 'killed, killed'] which the people in general use to converse.
Page 28 of 44
15. P.Ws.-6 & 7, namely, Sri Uttam Barman and Monoranjan Debbarma came to the spot as firemen who also deposed that while they were rescuing the deceased with the help of local people, on being asked, the deceased wife of the appellant disclosed that "her name was Ratna Barman (Das) and also stated that her husband Parimal Das set her fire by pouring kerosene" .
16. Similarly, the statements of P.Ws.-6 & 7 are also the evidence of res gestae b eing made as parts of the same transaction as they have clearly stated that while rescuing her, the deceased disclosed her name and further informed them that the appellant had set her ablaze.
17. We find no reason to disagree the evidence of P.W.-2, P.W-8, P.W.-6 & P.W.-7 as the evidence of res gestae which inspire confidence of this Court about the genuinity of their depositions regarding relevant fact in issues to who was responsible to push her to death.
Page 29 of 44
18. Again, it transpires that the circumstances when the deceased was in a state of burning, she was crying loudly and disclosed that her husband was responsible to set fire upon her which she reiterated when she was taken to Melaghar Hospital and made statement to the doctor in front of the nurses aptly proves that she was conscious and able to speak. Further, looking at the chain of circumstances commencing from the rescuing of the victim; conversation with the relevant prosecution witnesses at the scene of the crime and en-route to Melaghar Hospital and thereafter recording of her dying declaration formally by the attending doctor and nurses in her own vernacular versions could well be treated as her 'dying declaration' in terms of Section 32 of the Indian Evidence Act.
Reference in this regard may be made in the Sharad Birdhichand Sarda vs State of Maharashtra reported in (1984) 4 SCC 116 : AIR 1984 SC 162 wherein it was held as under:-
"21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the E vidence Act, the following propositions emerge:-
(1) S ection 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, Page 30 of 44 provided the statement relates to the cause of death, or exhibits circumstances leading to death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death.
It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross- examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to Page 31 of 44 prove a case of homicide would be equally relevant to prove a case of suicide.
(5) W here the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant (Emphasis added)."
19. Here, it would be apposite to refer the case of "Mukhtyar Jabbar Tadvi vs The State Of Maharashtra"
reported in (2018) SCC Online SC 2279: (AIR 2018 SC 5534).
20. In the light of the above proposition of law, it can safely be inferred that the oral statement made by the deceased to P.W-2, P.W.-8, P.W.-6 & P.W.-7, just at the stage of burning, and/or immediately after her rescue, would fall under Section 32 of the Evidence Act relating to the cause of her death and would be admissible in evidence. Further, the statements made by the victim to these witnesses and particularly, to the doctor (P.W.-10) have to be understood in right perspective regard being had to the legal maxim "Nemo Moriturus Praesumitur Mentire"- a man will not meet Maker Page 32 of 44 with a lie in his mouth. Besides, such a dying declaration cannot be blinked on the basis of a mere statement the accused-appellant had stated during his examination under Section 313 Cr.P.C. that his deceased wife became unconscious at the spot and did not regain her senses uptill her last breath.
21. Now, turning back to the facts and circumstances of recording the dying declaration, it transpires that P.W.-3, Lila Barman had deposed in verbatim what the victim actually and exactly had said in the language which she used to converse i.e., the colloquial language. P.W.-3 deposed that, "the female patient stated that 'Amar Swami Amar Gaoe Agun Lagaiya Darja Tala Diya Barit Thaika Bhaigya Geche' (After setting my body on fire, my husband had fled away from the house having its door locked) ". Such statements made by the victim in vernacular version instil confidence to the mind of the Court that what the victim had uttered was voluntary, and trustworthy.
Page 33 of 44
22. P.W-10, Mr. Dhruva Prasad Pal deposed that upon requisition made by police, he recorded the dying declaration of the victim in presence of his two staff nurses, namely, Smt. Lila Barman and Smt. Sipra Ghosh. He has already deposed that the victim stated "Amar Swami Amar Gaoe Agun Lagaiya Darja Tala Diya Barit Thaika Bhaigya Geche (After setting my body on fire, my husband had fled away from the house having its door locked)". T hus, P.W.-10 also corroborated the version of P.W.-3 in extenso during his deposition what actually and exactly the victim stated to him. P.W.-10 further stated that he recorded the statement of the victim at about 12.15 A.M on 19.03.2008 and he certified that the victim was having fit mental condition and she was mentally sound during and after the process of dying declaration. He further deposed that as surfaced from the bed-head ticket, the patient had suffered 90 % burnt and general condition of the patient was very very poor, consciousness, but, we do not find any question or suggestion was put to P.W.-10 as to whether at such state of health the victim was able to speak. Therefore, in absence of want of such clarification from the doctor (P.W.-10), we are not in Page 34 of 44 agreement with the submission of the learned counsel that the victim was not in such a state of mental and physical condition that she could not speak and was able to give the dying declaration. More so, the defence could not make out any case so that the Court can disbelieve the statements of the doctor and his staff nurses who were also witnesses to the certificate given by the doctor in the said dying declaration. As such, considering the entirety of the circumstances, according to us, the dying declaration recorded by P.W.-10 inspires confidence.
23. P.W.-11, the daughter of the appellant and the victim, in her examination-in-chief deposed that he was her father who tied her mother with a tree and set her ablaze. She, during her cross examination, wholly volte-faced what she deposed in her examination-in-chief and stated that during her chief examination she was minor and her deposition was influenced by her maternal uncles and aunts. But, during her cross-examination, she became major and stated that her father was innocent and her victim-mother committed suicide. However, because of her contradictory Page 35 of 44 statements, we are not inclined to give any credence to her deposition and we discard her deposition as a whole for the purpose of determination of the merits of the case.
In the aforesaid context, we may quote a passage from Gurnaib Singh Vs. State of Punjab r eported in (2013) 7 SCC 108 wherein the Supreme Court observed (SCC p. 121, para 26):-
"26........ we are compelled to proceed to reiterate the law and express our anguish pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted in an extremely haphazard and piecemeal manner. Adjournments were granted on a mere asking. The cross-examination of the witnesses were deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by this Court from time to time appears to have been totally kept at bay. The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talib Haji Hussain v. Madhukar Purshotttam Mondkar wherein it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction. "
Page 36 of 44 Keeping in mind the aforesaid observation, we express our concern and agony at the way the trial court proceeded to record the evidence of P.W.-11. The Registrar(Judicial) is directed to place the judgment before the Chief Justice to take cognizance and to issue appropriate orders on administrative side.
24. Now, coming back to the case in hand, one important aspect we have noticed that while answering to question No.38, in his examination under Section 313 of Cr.P.C., when attention of the appellant was drawn to the fact that he was present at the time and place of occurrence when his wife was burning, the accused-appellant admitted his presence.
Question No.38 may be repeated again below for ready reference:-
"Question No.38. It also appears from the evidence of PW-11, that at the material time many people came there while her mother was burning and you were also present there.
Do you have anything to say in this regard? Answer: Y es Sir. The witness said the right thing."
Page 37 of 44
25. It was at that stage, burden was shifted upon the accused to explain under what circumstances his wife was set on fire, but, he only stated that his wife committed suicide and she was not able to give dying declaration. Ultimately, he failed to come out with a plausible explanation under which circumstances his wife was set on fire. Failure of such reasonable explanation on the part of the accused-appellant prompts us to draw the only hypothesis and that is the hypothesis of the guilt of the accused. It was none else but the accused-himself, who had committed offence and set her wife ablaze by pouring kerosene oil on her body on 18.03.2008 at about 11.15. P.M., consequent to which she succumbed to her burn injuries at AGMC & G.B. Hospital at Agartala at about 8.45 A.M. on 19.03.2008.
26. We have given our conscious thought to the submission of the learned counsel that the victim Ratna Barman (Das) being suffered 95% burn injuries and extremely in critical condition, could not have made proper, coherent and intelligible statements. According to us, the submission does not make out a case for interference.
Page 38 of 44
27. In Vijay Pal Vs. State (NCT of Delhi): 2015(4) SCC 749 : (AIR 2015 SC 1495), where the statements made by the victim having suffered 100 % burn injuries was also accepted. The Supreme Court had observed thus:-
"23.......(B). Can a person who has suffered 92% burn injuries be in a condition to give a dying declaration?
24. This question is also no longer res integra. In Vijay Pal v. State(NCT of Delhi); 2015 (4) SCC 749 : (AIR 2015 SC 1495), we notice the following discussion; (SCC p. 759, paras 23-24): (at p.1502-1503, paras 21,22 of AIR) '23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Ngarbhai Raval v. State of Gujrat: (1992) 4SCC 69: (AIR1992 SC 2186) wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.
24. In State of M.P. v. Dal Singh: (2013) 14 SCC 159 : (AIR 2013 SC 2059), a two Judges Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible'.
25. Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of Page 39 of 44 the Court and is free from tutoring, and can be found reliable "
28. In the case of Bhagwan V. State of Maharashtra reported in (2019) 8 SCC 95:(AIR 2019 SC 4170), the Supreme Court has reiterated the analogies drawn in Vijay Pal (supra), where it said that the accident of burn injuries- going beyond 92% even to 100%- would not, by itself led to a conclusion that victim of such burn injuries may not be in a position to make statements.
29. Recently in the case of Purshottam Chopra v. State (Govt. Of Delhi) reported in AIR 2020 SC 476, the Supreme Court after taking into account the dying declaration of the deceased (Sher Singh) who suffered 100% burn injuries has maintained the conviction and sentence returned by the trial court as well as High Court. On the basis of the dying declaration of the deceased (Sher Singh), the Apex Court dismissed the appeal filed by the appellant (Purshottam Chopra).
Page 40 of 44
30. We have noticed that learned counsel for the appellant has laid much emphasis that the victim being suffered 95% burn injuries was not in a position to give dying declaration (Exbt-2/1).
31. We would repel such submissions having no substance for there had not been shown any reason for which P.W.-10, Dr. Dhruba Prasad Pal and his staff nurse, Lila Barman (P.W.-3) could manufacture any such document.
We find the statements of the deceased all along were spontaneous, voluntary, trustworthy, coherent and consistent that her husband, appellant herein, had put fire on her.
32. While certifying, the doctor clearly has stated that:-
"This is to certify that Smt. Ratna Barman(Das) 34 years/F, W/o - Sri Parimal Das of Jagannath Bari Chandigarh, P.S. Melaghar was mentally sound during and after the process of Dying Declaration."
33. CONCLUSION:-
Page 41 of 44 33.1. We are of the view that P.W.-2 Biplab Chakraborty, P.W.-8, Swapan Sen, P.W.-6, Uttam Barman, P.W.-7, Monoranjan Debbarma are the most natural witnesses who had rushed to the house at the time when the deceased was burning and was very much able to make statement. The facts which the deceased had narrated to these witnesses connecting her husband to the cause of her death have already been treated by us as the oral dying declarations of the victim which are admissible under Section 32 of the Indian Evidence Act. Further, the statements of these witnesses being the evidence of res gestae are admissible in evidence under Section 6 of the Evidence Act as we said earlier. The victim made all those statements regarding her cause of death with all spontaneities. The "dying declaration" recoded by the doctor on being requisitioned from police is well corroborated by the independent evidences as indicated above.
33.2. The motive of the accused-appellant to kill his wife has also been revealed from the statements of the witnesses that he had an illicit relationship with one Laxmi Chakraborty.
Page 42 of 44 Accordingly, in our considered view, the prosecution has successfully proved that it was the accused-appellant and none else who caused the deceased ablaze. We find no reason to interfere with the findings recorded by the learned trial judge which is reproduced below for convenience:-
" As no stress of evidence could be found in the instant case that the victim tried to save her after fire caught in her body it can safely be presumed that she might have been tried with a tree in the house as alleged which is also supported by PW-11 and other witnesses and the evidence of PW-11 was strengthened by the evidence of other witnesses. Defence despite of opportunity did not adduce any witness to rebut the evidence of the prosecution witnesses, not even the accused tendered himself to be witness on his behalf. It cannot be believed that if there is no truth in the prosecution case and the accused has been falsely implicated in the instant case with an ulterior motive no witness could be found from the village to support the contention of the defence. Rather in the instant case every person deposed against the accused herein. Defence also fails to being any cogent and material evidence before this court to establish their case and as to why all the witnesses inclusive of the Medical Officers (PWs-10 and 19), staff nurse of the hospital (PW-3), person belonging to the Fire Brigade (PWs-6 and 7), the neighbourers of the accused and the police personnel except PWs-15 and 16 (hostile witnesses) deposed against the accused. Defence also fails to establish before this Court as to why the Medical Officer who recorded the dying declaration of the victim fabricated the same and what was the intention of the Medical Officer to fabricate the dying declaration. Simply because of some omission and errors on the part of the prosecution entire evidence of the prosecution cannot be thrown out if the evidence of the witnesses are otherwise found trustworthy. Whenever, defence took the plea of Page 43 of 44 innocence and challenged the credibility of the evidence of the prosecution witnesses it was the duty of the defence to bring some credible and cogent contrary evidence to rebut the prosecution evidence of the witnesses.
22. On the other hand, in the given case accused is the only eye witness besides the deceased and PW-11(daughter of the accused) but the accused denied to adduce any witness on his behalf, even he himself did not come forward to depose in favour of his case"
34. On overall assessment of all the material aspects we do not find any merit in any of the pleas raised by learned counsel for the appellant to assail the impugned judgment.
35. The appeal is accordingly dismissed. The impugned judgement is upheld.
36. Before we part with the records, we cannot resist ourselves to express our anxiety and deep anguish pertaining to the manner in which the trial court had recorded the statements of P.W.-11. P.W. 11 appeared before the Trial Court on 03.09.2011 to adduce evidence. Her examination-in-chief was recorded on 05.09.2011 and it is revealed from the record that her cross examination was recorded on 25.11.2015.
Page 44 of 44 Send back the L.C. records.
(ARINDAM LODH,J) (AKIL KURESHI,CJ) suhanjit