Calcutta High Court (Appellete Side)
Parimesh Tapali vs The State Of West Bengal on 26 February, 2014
Author: Patherya
Bench: Asim Kumar Ray, Patherya
IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present : The Hon'ble Justice Nadira Patherya And The Hon'ble Justice Asim Kumar Ray C.R.A. No. 492 of 2008 PARIMESH TAPALI VERSUS THE STATE OF WEST BENGAL For the Appellant :Mrs. Anusuya Sinha, Adv.
For the State :Mr. Manjit Singh, PP,
Mr. Sekhar Burman, Adv.
Heard on : 19.2.13, 5.3.13, 25.3.13, 18.4.13, 24.4.13,
8.5.13 & 13.5.13.
Judgment on : 26th February, 2014.
Patherya J. :
This appeal has been filed against the judgment and order of conviction dated 27.5.2008 and sentence dated 28.5.2008 passed by the Additional Sessions Judge, Fast Track Court-I, Basirhat in Sessions Trial No. 7(4)/07 arising out of Sessions Case No. 155(12)/06 (G.R. No. 868/06) under Section 302 IPC whereby the appellant was directed to suffer imprisonment for life and to pay a fine of Rs. 5,000/- i.d. to suffer simple imprisonment for 3 months.
The case of the prosecution is that the marriage was solemnized between the victim and the appellant according to hindu rites and customs and out of their wedlock two female and one male child was born. The appellant was in the habit of taking liquor and on returning home under its influence the appellant would physically assault the victim. On 29th July, 2006 at about midnight the appellant poured kerosene oil on the victim's body and set her on fire which resulted in the victim sustaining 100% burn injury. The victim was admitted to the Basirhat hospital by her mother-in-law and brother-in-law and ultimately expired on 4th August, 2006. The incident occurred on 29th July, 2006. A complaint was lodged on 1st August, 2006 with the Basirhat Police Station by the father of the victim girl and a case under Section 498A IPC was registered and investigation initiated. During the pendency of the investigation the victim died and the charge under Section 302 IPC was included.
On completion of investigation charge under Sections 498A and 302 IPC was framed. The case was committed to the Additional Sessions Judge, Fast Track Court-I, Basirhat for disposal and the charge was read over and explained to the appellant who pleaded "not guilty" and claimed to be tried.
In course of trial 18 witnesses were examined by the prosecution and documents exhibited. On considering the evidence the order of conviction and sentence was passed on 27th May, 2008 and 28th May, 2008 and the appellant sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- i.d. to suffer S.I. for 2 months under Section 302 IPC. For the charge under Section 498A IPC the appellant was acquitted.
Being aggrieved by the said order of conviction and sentence this appeal has been filed.
Counsel for the appellant submits that the sentence has been passed on the basis of the dying declaration. The dying declaration was recorded by PW 17 (S.I) when the victim was admitted to the female surgical ward and no permission was taken to enter the said ward by PW 17 (S.I). No permission was also taken for recording the statement of the victim from the Superintendent of the hospital. It is not clear when PW 17 (S.I) entered and left the said hospital. The entry admittedly was not proper as he could not enter the female surgical ward. The evidence of PW 17 (S.I) is an improvement as it has been stated by PW 18 (I.O) that PW 17 (S.I) did not say to him that he set out from the police station to record the dying declaration of the victim girl. Therefore to that extent the evidence of PW 17 (S.I) is an improvement and it is doubtful whether PW 17 (S.I) recorded the dying declaration. Exhibits 10 and 13 are extracts of the G.D. entry. These extracts are independent and not taken from the G.D. book. No G.D. book was produced. No time is also mentioned therein. In the dying declaration no LTI of the victim girl has been taken and there is no explanation in respect thereof too. The FIR was lodged on 1st August, 2006 by PW 5 (father). In his evidence PW 5 (father) has stated that it was the victim girl who told him of the incident the following day (i.e. 30.7.2006) but the dying declaration was made on 31st July, 2006 in the presence of PW 6 (mother). PW 5 (father) did not state in the FIR filed on 1.8.2006 that he was told of the incident by the victim girl. At the time of inquest PW 7 (brother) was present but he also did not say anything about the involvement of the appellant although he claims that the victim girl told him of the incident. PW 1 (daughter) in her evidence has stated that the relation between the appellant and the victim girl was not good.
The case of accident as espoused by PW 1 (daughter) is believable as the same was corroborated by PW 15 (Doctor). PW 1 (daughter) has stated that on the following day i.e. 30th July, 2006 the victim was not in a position to speak. This is corroborated by PW 2 (mother-in-law). This is contrary to the evidence of PW 6 (mother) who has stated in her evidence that she went to the hospital at night and the next morning when she was told by the victim girl that her husband set her on fire. In cross- examination she has said that she cannot say when she went to see the victim girl in the hospital whether noon or night but she heard about the incident from the victim girl on the following day of the incident i.e. on 30th July, 2006 and thereafter she did not go to the hospital and had no talk with her daughter, therefore the dying declaration on 31st July, 2006 made in the presence of PW 6 (mother) and the LTI of PW 6 (mother) is in doubt. PW 15 (Dr.) has stated in his evidence that the dying declaration was made in his presence when the victim girl was conscious and in a condition to depose but the LTI of the victim girl was not taken. At the time of admission the victim girl informed PW 15 (Dr.) that she caught fire accidently and this has not been shaken in cross-examination.
The only reason for making the requisition by PW 15 (Dr.) was the victim's desire to change her statement. Time of recording also varies. The FIR is before the inquest and the case made in the FIR must find mention in the inquest but as no mention is made it casts a doubt as held in (2011) 1 Calcutta CrLR 687 para 11 which has followed (1994) SCC (Cri) 1390. Where there are two versions of a dying declaration the dying declarations cannot be relied on as held in (2005) 9 SCC 769. Reliance is also placed on (2006) 3 SCC 161 and 2003 SCC (Cri) 246 (Chacko -vs- State of Kerala). For all the said reasons therefore the order of conviction and sentence be set aside.
In opposing the said appeal counsel for the State submits that PW 5 (father), PW 6 (mother) and PW 8 (uncle) are vital witnesses and although PW 8 (uncle) has been declared hostile that the victim girl spoke to him the following morning cannot be ignored. Since the incident and demise of the victim girl so also at the time of admission the appellant was nowhere to be found. It was the mother-in-law (PW 2) and brother-in-law who admitted the victim girl. Therefore the conduct of the appellant is very vital. The witnesses of importance are PW 5, PW 6 and PW 7 who are vital witnesses. They came to know of the facts from the victim girl or her daughter (PW 1). PW 3 and PW 4 are seizure list witnesses, they seized the articles. PW 5's (father) statement is corroborated by the dying declaration, PW 6 (mother) has stated that the victim had capacity to speak. This has been corroborated by PW 15 (doctor). PW 1 (daughter) and PW 2 (mother-in-law) stated that the victim could not speak. From the evidence of PW 1 (daughter) and PW 18 (I.O.) no ingredient of Section 302 IPC emerges. The evidence of PW 15 (doctor) matches with the indoor patient sheet. There are two dying declarations,
- the first was told to PW 15 (doctor) at the time of admission and the second statement has been made under Section 154 CrPC to PW 17 (S.I). The indoor patient sheet mentions the name of (brother) PW 7 but the victim girl was admitted by PW 2 (mother-in-law) to the hospital. The bed head ticket does not show the presence of PW 7 (brother) at the time of admission. The first dying declaration cannot be believed as PW 7 (brother) was not there though his name has been recorded. The second dying declaration has been made before PW 15 (doctor) and PW 17 (S.I) and is believable as it was made on 31.7.2006 i.e. the following day of the incident which has also been stated by PW 6 (mother). PW 1 and PW 2 both have stated that the relation between the appellant and the victim girl was not good. PW 1 (daughter) and PW 2 (mother-in-law) are interested witnesses so also PW 5 (father), PW 6 (mother) and PW 7 (brother). Therefore in view of the dying declaration the guilt of the appellant has been proved and the order under appeal be affirmed.
In reply counsel for the appellant submits that when the victim girl was being taken to the hospital the appellant came and exclaimed again you have done so. Although it has been stated by PW 15 (doctor) that PW 7 (brother) brought the victim to the hospital but the name of PW 7 (brother) has not been marked as exhibit but has been marked for identification. Therefore the document has not been proved. The presence of PW 7 (brother) in the bed head ticket is also absent. The evidence of PW 5 (father) and PW 6 (mother) also does not say that PW 7 (brother) took her to the hospital. PW 6 (mother) has not mentioned anything about LTI. PW 1 (daughter) and PW 2 (mother-in-law) have not been declared hostile. Therefore the order of conviction and sentence be set aside.
Having considered the submissions of the parties PW 3, PW 4, PW 9, PW 10, PW 11 and PW 16 are formal witnesses. PW 8 has been declared hostile. Although PW 1 (daughter) does not support the case of the prosecution, she has not been declared hostile. PW 2 (mother-in-law) and PW 1 (daughter) have categorically stated that the victim girl was not in a position to speak when taken to hospital. The father (PW 5) is the FIR maker. He has not made out a case of pouring kerosene oil. Mother (PW 6) has spoken of 100% burn injury and although she went on the following day i.e. 30th July, 2006 she found the victim capable of speaking. The brother (PW 7) visited the victim on 30th July, 2006 and 31st July, 2006. PW 15 is the doctor on duty at the time of admission of the victim girl and has recorded in the BHT that the victim girl had suffered 100% burn injury. PW 14 (PM Dr.) has stated that the victim girl suffered 95% burn injury and in his opinion death was due to such burn injury. PW 15 (doctor) was present when the 2nd dying declaration was recorded by PW 17 (S.I). PW 18 (I.O) conducted the investigation.
Therefore there are 2 dying declarations of the victim. One before PW 15 (Dr.) at the time of admission and the other before PW 17 (S.I) also in the presence of PW 15 (Dr.) In the BHT at the time of admission on 30.7.2006 at 12.35 a.m. it has been recorded that the patient (victim girl) stated that she caught fire by accident from the kerosene lamp while sleeping under the mosquito net. This finds corroboration with the evidence of PW 15 (Dr.). This was not demolished even in cross-examination.
PW 1 (daughter) has also stated in her evidence that her mother the victim poured kerosene on her body and the saree of the victim caught fire from the flame of the burning kerosene lamp.
The statement of the victim girl in the 2nd dying declaration before PW 17 (S.I) is at a variance and is contrary to what was stated by her at the time of admission to PW 15 (Dr.) and the evidence of PW 1 (daughter). This makes the 2nd dying declaration doubtful. The 2nd dying declaration also does not bear the LTI of the victim and the mother (PW
6) could not have been present at the time of making the dying declaration by the victim as PW 6 (mother) has categorically stated that she went to the hospital at night and on the following day (i.e. 30.7.2006) at 8 a.m. Thereafter she did not go to the hospital on 31.7.2006 and the LTI of PW 6 (mother) is doubtful.
Another reason for doubting the 2nd dying declaration is that since the time of the incident at midnight of 29.7.2006 the victim had met PW 5 (father), PW 6 (mother), PW 7 (brother) and therefore tutoring cannot be totally ruled out. PW 1 (daughter) and PW 2 (mother-in-law) have both stated that they visited the victim the next day and the victim was not in a position to speak. There is no reason to disbelieve either PW 1 (daughter) or PW 2 (mother-in-law) as neither of them have been declared hostile.
Although PW 15 (Dr.) has stated that PW 7 (brother) brought the victim girl to the hospital, PW 7 (brother) has nowhere stated that he took his sister the victim girl to the hospital. The evidence of PW 15 (Dr.) cannot be relied on.
In the absence of PW 1 being declared hostile, her evidence so also the evidence of PW 2 (mother-in-law) in so far as the speaking capacity of the victim is concerned cannot be doubted. This renders the 2nd dying declaration clouded in doubt. The aforesaid therefore does not point to the guilt of the appellant.
For all the said reasons the order of conviction and sentence cannot be sustained and is set-aside. The appellant in case in jail be set free if not wanted in any other case. The appeal is allowed and disposed off.
Let photostat copy of the order passed be sent to the concerned Correctional Home, in case the appellant is in jail.
(Patherya, J.) I agree (Asim Kumar Ray, J.)