Calcutta High Court
Smt. Ira Ghosh And Anr. vs The State on 22 July, 1991
Equivalent citations: 1992CRILJ972
JUDGMENT L.M. Ghosh, J.
1. Renuka Ghosh, wife of Smriti Kumar Ghosh, of 511, Rabindra Sarani, Calcutta, died of burn injuries. She caught fire at about 9 p.m. on 27-9-83. She died in the hospital, R.G. Kar Hospital, on 28-9-83 at about 5-20 a.m. The appellant No. 1, Ira Ghosh, is the wife of the elder brother of the appellant No. 2. Both were charged under Section 302/34 of the IPC for causing the death of Renuka by pouring kerosene oil on her body and clothes and by setting fire, which ultimately caused the death of the victim.
2. It is said that when it was noticed by the neighbours that Renuka was engulfed in fire, some of them went there and extinguished the fire. Tapan Pal, one such neighbour, went inside the room along with Babu Lal Shaw. He found that a female was burning and another person was trying to extinguish the fire. Tapan Pal took-over a quilt from the hand of the other person and extinguished the fire by covering the victim with that quilt. He brought her out in his arms and put her in a vehicle, covered by the quilt. Nibe Babu, the elder brother of Smriti (appellant No. 2) escorted her to the hospital in a private car. Another witness and neighbour, Pran Krishna Mukherjee, on feeling that there was fire in the house, went there and saw a burning body inside the room. Smriti, the appellant No. 2, suddenly entered the flat of Pran Krishna and lay down prostrate. The witness, Prem Krishna, applied Burnol to Smriti. People removed the burning body of the wife of the accused Smriti. The fire brigade was informed and the fire brigade men reached the premises and went to the first floor of the building. They came to know that a woman had caught fire and she was removed to the hospital. Some police constable also reached the spot and got information that a woman had received burn injuries and that she was removed to the hospital. In the hospital, the victim, Renuka, was examined by PW-7, Dr. Siraj of the R.G. Kar Hospital. He sent the patient to the ward, namely, Observation Surgery Unit. According to PW-7, the doctor, the patient told him before she was sent to the ward that she got burn injuries when her husband and elder brother's wife Ira Ghosh, put kerosene oil over her body and set fire.
3. Another doctor, Dr. Subir Kumar Basu (PW-6) issued the death certificate in respect of Renuka. He also signed on the bedhead ticket of the patient on 28-9-83. During his presence, the statement of Renuka was recorded by the police officer on 28-9-83 and this witness signed the statement recorded at the bed side of the patient. That statement, recorded by the police officer, has been treated as another dying declaration. Police Officer, Mr. Ram Narayan Banerjee (PW-41), on getting information that a woman received burn injuries proceeded to the R.G. Kar Hospital. He arrived around 00.20 hours on 28-9-83 and around 00.30 hours he collected the M.C. of Renuka which disclosed, according to him, a cognizable case. He started the investigation. He went to the Female Ward of casualty Block and found Renuka in a serious condition. Around 00.40 hours on 28-9-83, he recorded the statement of Renuka Ghosh in presence of the doctor, PW-6. That statement was treated as dying declaration. He rushed next to No. 511, Rabindra Sarani and took the accused Ira into custody. There he seized certain alamats and examined some witnesses and then returned to the police station, accompanied by Smriti Kumar Ghosh and Ira Ghosh in custody. A case No. 343 dated 28-9-83 under Section 307 of the IPC was started against Ira Ghosh, treating the M.C. as the FIR. Smriti was allowed to go home after his examination. After getting the report of the death of Renuka, the charge was converted to Section 302 of the IPC. Arrangement for post mortem examination was made. Thereafter, on different dates he examined different witnesses. On 14-11-83, Smriti Ghosh was arrested. After completing investigation, he submitted charge-sheet on 26-12-83.
4. Both the accused persons pleaded innocence. So far as Ira is concerned, her submission was that on that date at the relevant time, she was laid down with fever. When she heard loud sound, her elder sister, who was lying on the floor, opened the middle door and then she found the flame. She herself threw the guilt and Shejda (the appellant No. 2) extinguished the fire. Smriti, in his examination under Section 313 of the Cr. P.C., suggested that while trying to rescue his wife, he himself got burn injuries and became senseless.
5. On behalf of the prosecution, 41 witnesses were examined. No witness was examined on behalf of the defence.
6. That Renuka died as a result of burn injuries, there cannot be any doubt. That is proved by PW-6 and also the death certificate granted by him, Ext. 1. The death is also proved by PW-31, the police officer, who held inquest on the dead body of Renuka. Finally, we have got the evidence of PW-34, the doctor who held the post mortem examination. There cannot be any doubt that Renuka met an unnatural death, as a result of burn injuries.
7. Now, we have to consider whether the said injuries were caused by the accused persons or any of them. When it is established that Renuka died of burn injuries, there can be three possibilities as to how she received the said injuries; the same might have been caused by somebody by pouring inflammatory substance and then setting fire, or they might have been caused by some accident or Renuka herself might have committed suicide. The prosecution has to exclude the possibilities of accident and suicide and prove that the injuries were caused by one or both the accused persons.
8. Of the two accused, we first take up the case of appellant No. 2, Smriti Kumar Ghosh. He is the husband of the deceased. Evidence against the accused mainly consists of the fact that there was bad relationship between himself and Renuka. Then there is one piece of evidence, the bedhead ticket, which is sought to be used against him as dying declaration. As to the relationship, many witnesses speak about the ill conduct of Ira, but as to ill treatment by Smriti or bad relationship between him and his deceased wife, we get some scant evidence here and there. PW-35, a brother of Renuka, comes to prove that Ira mixed with Smriti freely and the latter would spend time with the former being drunk and that Smriti, while being drunk, would even beat Renuka. PW-36, another brother of Renuka, gives us that there was illicit relationship between Ira and Smriti and that Smriti ill treated Renuka. He suggested separate establishment for Renuka and her husband, but Smriti did not accept that proposal. Then, according to him, on 27-8-83, Renuka went to his Burdwan office and told him that she was assaulted by Smriti Kumar Ghosh. PW-38, Chhaya Rani Ghosh, a sister of Renuka, refers to some hostile acts on the part of Ira. She then narrates that once Renuka found Smriti and Ira in a compromising position. She also adds that one day, she found Smriti and Ira beating up Renuka. These pieces of evidence have got no direct bearing on the point involved. Even if Smriti behaved badly towards Renuka, from that alone a conclusion cannot be reached that Smriti was responsible for the death of Renuka. We have also the evidence of PW-30, Atul Krishna Roy, a police officer, who claims that on 27-8-83, he made a G.D. Entry on the complaint of Renuka Ghosh. According to this witness, Renuka then reported that she was ill treated by her husband and the other members of his family including Ira Ghosh and that her husband did not maintain her properly and on protest, was even assaulted on 26-8-83. The G.D. was made just one month before the incident. Even if Renuka had good grounds for grievances against Smriti, that cannot prove the guilt of the accused in relation to this matter, unless there is some other evidence about his complicity. The said ill treatment might at most supply a motive. Therefore, we have to seek for other substantive evidence regarding the actual commission of the offence. We have tried to find such evidence against Smriti but we find there is no other legal evidence.
9. The bedhead tickets of the hospital have been brought in evidence, presumably to use the same as containing Renuka's dying declaration. Exts. 5 & 6 are the bedhead tickets. In Ext. 5, there is a note that the patient stated that at about 9 p.m. her husband's brother's wife and her husband forcibly poured kerosene oil on the body and set fire following an altercation. This is a statement against the accused Smriti, if the document is admissible in evidence. We are constrained to observe, however, that this document is not admissible in evidence to prove the same as dying declaration against Smriti. PW-6, the doctor, who refers to that, does not say that this part in the bedhead ticket was written on the statement of Renuka, the deceased. In fact, from the evidence of PW-6, we cannot be sure who wrote this portion and on whose statement. At least we do not get anywhere that Ext. 5 was written on the basis of the statement made by Renuka. If it is not proved that Renuka made this statement, it cannot be used as her dying declaration. So, the documents, Exts. 5 & 6, do not amount to any evidence against Smriti. It may also be noted that in two other said dying declarations by Renuka, one recorded by the doctor, PW-7, and the other by the police officer, PW-41, there is no reference to the name of Smriti. Only the name of Ira is mentioned in the other two dying declarations. That also indicates that Smriti's name was inserted in Ext. 5 not on the statement of Renuka. So, there is absolutely no legal evidence against Smriti. On that ground, the case against Smriti, the appellant No. 2, must fail.
10. There are other reasons why the case against Smriti must fail. The evidence available discloses that Smriti was very much concerned for saving Renuka. We get from the evidence of PW-20 that he came to know that there was fire in the house and then saw that a body was in flames inside the flat. Then, according to this witness, Smriti suddenly entered the flat of PW-20 and lay down prostrate there. This witness and others applied Burnol to Smriti. It is quite significant that Smriti tried to save Renuka and in that course, got himself burnt. Then PW-23, Tapan Pal, also deposes that a female was in flames and another man was there to extinguish the fire. The witness took the quilt from that person and ultimately extinguished the fire. That man was no other but Smriti. The same version is repeated by PW-24. His evidence is that he saw the wife of Smriti was burning in the varandah in front of Smriti's room. Then he says that Smriti Ghosh had also received burn injuries and Ira Ghosh was weeping. In his cross examination, this witness has clarified that Smriti had received burn injuries and Ira Ghosh was found weeping. PW-37, another inmate of that house, has also said that Smriti was also taken to the hospital in a private car and he complained of burning sensation and had no sense when he reached the hospital. These pieces of evidence on the prosecution side itself, sufficiently prove that Smriti was in fact trying to save Renuka and in that course he got burn injuries. Again, from the evidence of Dr. Siraj, PW-7, we get that on 27-9-83, he treated Smriti Kumar Ghosh in the Emergency Room on that date. He was given injection and medicine was advised. Then again, Ext. 44 (collectively) also discloses that Smriti was admitted in the hospital on 30-9-83 and was discharged on 14-10-83. There cannot be any better proof that Smriti himself got burn injuries. Smriti must have received the injuries while trying to save Renuka. And there is direct evidence also that Smriti was trying his best to save Renuka and received injuries in that course. The case of State of Gujarat v. Mohan Bhai Ragh Bhai Patel, very much fortifies the position of Smriti. The facts in that case were very similar. There the accused No. 1 had married the accused No. 2 the second time and there was an age gap between the two. It was alleged that the younger brother of the accused No. 1 who was the husband of the deceased was having some illicit relationship with the accused No. 2, that is the wife of the accused No. 1. The deceased was objecting to the same and she also complained to her mother. The deceased made dying declaration implicating the accused Nos. 1 and 2. It was stated that the accused No. 1 came from behind and poured kerosene while the accused No. 2 caught hold of her and the accused No. 1 lighted a match stick and applied the same to the clothes of the deceased. It was held by the Supreme Court that there was apparently no motive of the accused No. 1 to cause the death of the deceased. In spite of the dying declaration, the Supreme Court maintained the judgment of the High Court, setting aside the conviction of the accused in that case. Here also, so far as Smriti is concerned, it cannot be accepted that if he wanted the death of his wife, he would at the same time try to save Renuka. He even risked his life while trying to save Renuka.
11. Therefore, there is practically no legal evidence against the appellant No. 2. And, on the contrary, there is evidence that he wanted to save Renuka by extinguishing the fire and in fact he himself got burn injuries. We have no hesitation to say that the prosecution has absolutely failed to prove the case against Smriti. He must be acquitted of the charge.
12. Now, we come to the position of the appellant No. 1, Ira Ghosh. As against her, there is first the evidence regarding her hostility towards Renuka from the very beginning. In this group, come several witnesses. First we may refer to the evidence of PW-9. She was a relation of Renuka. She was present at the marriage ceremony of Smriti Ghosh. According to her, Ira abused Renuka and made a scene after the arrival of the bride. She also narrates other incidents of misbehaviours by Ira. PW-10 is the next witness. She is a potter. According to her evidence, she once found two women were beating Renuka and Smriti was standing indifferent. That proves nothing. It is not the general prosecution case that two women together were assaulting Renuka. PW-11 is a brother-in-law of Smriti and he merely proves that on an occasion, both Ira and Renuka were weeping. That, at most, refers to some sort of family trouble. PW-12, Bela Ghosh, is the sister of the appellant No. 2. She merely proves that there were some arguments over trivialities between Smriti and Ira. She was declared hostile. PW-13 was also declared hostile. She merely proves that Ira was shouting on the day the bride was brought and also on the date of Fulsajya ceremony. PW-30, the police officer, to whose evidence we have referred earlier, proves that one month before the incident, he recorded that Renuka Ghosh complained about ill-, treatment by her husband, Probhat and Ira. PW-32 is a relation. Renuka was the younger sister of her husband. She only proves that Bela, sister of Ira, chastised her regarding some formality. And after the marriage, it is said, Ira made some utterences against Renuka. Then it is stated that at the time of the return journey to the house of the bride, Ira was not willing to let Smriti accompany the bride. That evidence, if accepted, discloses some hostility on the part of Ira. PW-35, Shiv Shankar Roy, is a brother of Renuka, and he proves that on the date of reception, Ira shouted regarding electricity consumption, that Ira mixed with Smriti freely and that the latter would spend time with the former in a drunken state and that Smriti, being drunk, would even beat Renuka. The dispute over electricity consumption does not point to anything. And if Smriti beat Renuka, that is also not a circumstance in relation to the incident. PW-36, another brother of Renuka, also speaks about illicit relationship between Ira and Smriti. He says that Smriti often ill-treated Renuka and on 27-8-83, the latter went to his Burdwan office and reported that she was assaulted by Smriti Kumar Ghosh. PW-38 merely speaks of some behaviour on the part of Ira on the day Smriti was to accompany the bride to her father's house. It is mentioned by her that Renuka found one day Smriti and Ira in a compromising position. But, it is not stated who made the report. If Renuka made the report, it might be relevant; but if the report came from a third person, that would not be admissible in evidence. And, he adds that one day he found Smriti and Ira beating up Renuka. This part of the evidence is not acceptable, because nowhere else it is suggested that Smriti and Ira together assaulted Renuka. Then there are some letters, Exts. 21, 22 and 23, indicating mainly that Renuka was not happy in that family. There is one diary, Ext. 2,4. That also does not throw much light, it simply indicates that Renuka was not happy in that family.
13. All these facts, referred to by different witnesses, are not very material. Even if Ira was guilty of bad behaviour towards Renuka, that cannot be the basis for conclusion that she caused her death. Even if it be accepted she was hostile towards Renuka, that may cut both ways; it may furnish merely a motive on the part of Ira, but at the same time, it may also be a reason for implicating Ira in the dying declaration. Nothing can be decided conclusively on the basis of past relationship.
14. So we come to the dying declaration -- one recorded by PW-7 and the other by PW-41. Ext. 7 is the statement recorded by PW-7, Doctor Siraj. That very statement was treated as FIR. We have no reason to disbelieve PW-7 that the patient gave the name of Ira. After all, why the doctor would unnecessarily implicate Ira, if her name was not mentioned by the deceased. And how the doctor could get the name of ira unless given by Renuka? The other dying declaration is Ext. 33, recorded by PW-41. That declaration was recorded in the presence of PW-6, the other doctor, and he also signed on the paper. Now, we have to consider whether the dying declarations can safely be considered as disclosing the truth.
15. Mr. Dutt, the learned advocate for the appellants, has argued that after Renuka received such extensive burn injuries, she could not be in a position to make any consistent statement. We are unable to accept that part of his argument. One statement was recorded by the doctor and the other state-merit was recorded by PW-41 in the presence of another doctor. If the patient was not in a position to make any statement, the doctors would be the best persons to say so. Undoubtedly, the deceased was in a position to make the statements. We have only to examine very carefully whether the statements can be accepted as containing the truth.
16. Ordinarily, a dying declaration is entitled to much weight, considering the situation that it is like a message from the grave. Ordinarily again a person who is in a dying condition, or is aware that he or she will face death soon, is not likely to make a false statement at that stage. The possibility of imminent death gives a sanctity to the whole matter. At the same time, however, we cannot take it as a rule of universal application that death is the surest rectifier. Human psychology, in spite of some modern advancement, remains by and large an uncharted region and a fathomless sea. The shocks and responses of the different persons vary according to the mental frameworks of the persons concerned. If circumstances are placed, which tend to show that the dying declaration may not be true, then the Court also cannot confidently rely on the dying declaration. In this case, there are circumstances indicating that the dying declarations may not contain the absolute truth. Evidence on the side of the prosecution discloses that Ira was laid down with fever on that occasion. That is the evidence of PW-18, the sister of Ira. Her evidence need not be accepted as sacrosanct, because she is the sister of Ira, Even though she was a prosecution witness, she was declared hostile. PW-27 is another sister of Ira, coming to depose that Ira was laid down with fever that day. Even though she was not declared hostile formally, as she is the sister of Ira much importance may not be attached to her evidence. But there are other pieces of evidence coming from independent sources which suggest that Ira could not have done that crime. PW-22 says that she saw smoke and burning oven. That is very suggestive. It suggests that Renuka might have caught fire by accident and the source of the fire was the burning stove. It is not for the defence to make out any specific case, but it is for the prosecution to show that no hypothesis other than the guilt of the accused, is possible in view of the evidence led. PW-22's evidence cannot exclude the possibility of accidental fire.
17. Mr. Mukherjee, the learned Public Prosecutor appearing for the state, has argued that if it was a case of accidental fire, such extensive burn injuries could not have been received. That alone cannot fix the responsibility of the accused because we have also the evidence of PW-34, the doctor who held the post mortem examination, that he found no marks of violence. In the concluding part of his evidence, he has answered that he agrees with the proposition that in order to determine a homicidal case, there ought to be marks of violence and injury. He found none. Therefore his stray statement that it was homicidal in nature, cannot have any basis. Now, we come to the evidence of PW-23. Immediately after Renuka was severely injured, he took the guilt from the hand of one person and extinguished the fire by covering the victim with the quilt. He brought her down taking her in his arms and put her in a vehicle. According to him, the victim was telling him that her father should be informed. At that earlier stage, Renuka did not say that Ira applied fire. That is significant. In the Supreme Court case of State of Gujarat v. Mohan Bhai , it was noted that in the earlier stages, the deceased did not implicate the accused. That is a factor to be considered in this case also, in the light of the evidence of PW-23. PW-24's evidence is also significant. We get from him that Smriti and Ira were present there. There cannot be any doubt about the presence of Smriti at the relevant time, because, as we have discussed earlier, Smriti was desperately trying to save Renuka. Now, a very pertinent question would be, if Smriti was trying to save Renuka, would he allow Ira to set fire to Renuka? We further get from PW-24 that Smriti Ghosh had received burn injuries and Ira Ghosh was weeping. That Ira Ghosh was weeping may not by itself suggest conclusively that she was not guilty. But, at any rate, if discloses some conduct on the part of Ira. If Ira was minded to kill Renuka, she would not be crying after Renuka had caught fire. One may sometimes pretend, but even then, something would appear from the conduct so as to detect the pretention. Nowhere we get from any evidence that Ira's conduct was such as could be the behaviour of a guilty person. Then there is a very significant answer in his evidence which goes a long way towards suggesting that the fire was accidental. Towards the close of his evidence, just before cross-examination, he has clearly replied that he found that the fire in the stove had been extinguished and the bread had fallen on the floor. Evidently, as it is, it suggests that the stove was the source of fire. Added to that is the fact that no smell of kerosene oil was detected by anybody. It is unusual for a woman to cause such burn injuries, without the help of another. Specially we have noted that there were no marks of violence on the body of the deceased. It is also highly improbable that a woman would set fire to another in a house which is very much crowded. We have no doubt that Exts. 7 and 33, containing the dying declarations of Renuka, were recorded on the statement of the deceased, Renuka Ghosh. But whether those statements represent the truth is a matter for examination. If upon a consideration of the other facts and circumstances, the Court has reason to doubt whether the statements are true or not, it would be unsafe to lose conviction on such statements alone. We have referred to the various circumstances going against the case of Ira's setting fire to Renuka. As already mentioned, human Psychology is very complex and one does not know what would be the exact response of a particular person. PW-6, the doctor, has expressed the clear opinion that shock emanating from burns may give rise to confussional insanity. In this case, we get from PW 6, that there was total dehydration and that causes confusion in the brain always. No doubt, Renuka could speak. But, whether she had a confusion in her mind, as a result of serious shocks, one cannot say clearly. It may even be that she was under an obsession in relation to Ira. We have already discussed the evidence regarding the hostility on the part of Ira. There cannot be any doubt that the relation between Ira and Renuka was, for whatever reason, quite bitter. Bitterness might have prompted Renuka to implicate Ira. The incident might have been accidental or suicidal. It is not possible for us to say exactly what was the situation. It is not for the defence to prove this or that affirmatively. If some suggestions are thrown on the basis of objective factors and if it appears that such suggestions cannot be ruled out, then the prosecution does not prove that the evidence led is incompatible with the innocence of the accused. Considering all that, we find that Ira is also to get the benefit of doubt.
18. Summing up, we find that there is no legal evidence against Smriti and on the contrary, there are strong circumstances indicating his innocence. The prosecution has completely failed to prove the case against Smriti by legal evidence. So far as Ira is concerned, materials on record give rise to reasonable doubt about her involvement. Consequently, she is entitled to get the benefit of doubt.
19. The appeal, therefore, succeeds. The judgment and order of the learned trial Court convicting the appellants, Smt. Ira Ghosh and Sri Smriti Kumar Ghosh Under Section 302/34 of the IPC and sentencing them to imprisonment for life are set aside. The accused appellants, Smt. Ira Ghosh and Sri Smriti Kumar Ghosh are found not guilty of the offence Under Section 302/ 34 of the IPC. They are acquitted of the charge. They be set at liberty at once, if not required to be detained in connection with any other offence.
Amarabha Sengupta, J.
20. I agree.