Ashim Kumar Mukhopadhyay @ Ashim ... vs State Of West Bengal on 27 August, 2018

[Cites 8, Cited by 1]

Calcutta High Court (Appellete Side)

Ashim Kumar Mukhopadhyay @ Ashim ... vs State Of West Bengal on 27 August, 2018

P.W. 16, daughter of the victim did not disclose the role of the appellants in setting her mother on fire before the police officer. Even before the learned Judicial Magistrate she was silent with regard to the role of Tapati Banerjee in setting her mother on fire. She was in the custody of her matrimonial uncle and aunt and was tutored to implicate the appellants during trial. With regard to the dying declarations being Exts.- 11,14 and 18 respectively learned Counsel argued that none of the said declarations have been proved in accordance with law and do not inspire confidence.

Evidence of P.W. 18, who recorded Ext. 11 shows that the declaration was made in Bengali while it was recorded in English and the contents were not read over and explained to the victim. The victim had suffered 100% burn injuries and there was nothing on record to show that she was conscious and in a fit state to make the statement. On the other hand, presence of ASI, Lakshmi Ghosh, a police officer is admitted at the time of recording Ext. 11 who has not been examined in the instant case. Dr. M. K. Hazra who recorded the history of assault at R.G. Kar Medical Collage and Hospital (Ext. 18) has not been examined and, therefore, the circumstances in which the history of assault was recorded have not been proved. She severely criticized Ext. 14 recorded by P.W. 19, Investigating Officer on the ground that the victim was under sedation and had been administered moist oxygen as she was in a precarious condition even on 3.10.2005. Hence, the victim could not have made an extensive dying declaration on 5.10.2005 as appearing from Ext. 14. Contents of the said document was written by P.W. 19 and P.W. 21 admitted that he was not even treating the patient. P.W. 21 was unaware of the name of the patient as he had recorded her name incorrectly in the said document. His certificate as to the consciousness and fit state of mind of the victim is, therefore, wholly unreliable and contrary to the materials on record. Hence, none of the dying declarations could be relied upon in the factual matrix of the case.

On the other hand, appellant Ashim Mukherjee suffered injuries on the palm of his hand as is evident from the cross-examination of P.W. 18 and the defence witnesses. P.W. 18 recorded in the medical papers relating to the treatment of Ashim Mukherjee that he had suffered such injury in order to save his sister-in-law. The aforesaid circumstance, therefore, militates against the dying declarations relied upon by the prosecution. Role of appellant Swapan Mukherjee in the incident has not been established and there is hardly any evidence on record to implicate him in the instant case. Accordingly, the appellants are entitled to an order of acquittal.

Mr. Mondal appearing for the appellant, Kamala Kundu, the sister of the deceased, submitted that the dying declaration (Ext. 11) had been recorded by a medical personnel, namely, P.W. 18 who treated the victim at Barrackpore Cantonment Hospital. Role of Ashim Mukherjee and Tapati Banerjee are clearly spelt out in the said dying declaration. There is nothing on record to discredit the said document. The aforesaid dying declaration is corroborated by the subsequent dying declarations recorded at R. G. Kar Medical College and Hospital, namely, Exhibits 18 and 14. Ext. 14 was recorded in the presence of P.W. 21 who is a doctor attached to the said hospital. He gave a certificate with regard to consciousness and fit state of mind of the victim. The circumstances in which the said dying declarations were recorded, therefore, are above reproach and clearly establish the guilt of the appellants. Swapan Mukherjee did not make any effort to protect his wife from the murderous assault by the appellants, namely, Ashim Mukherjee and Tapati Banerjee. Other accused persons were also present at the place of occurrence and obstructed the entry of local people to save the victim and to give her medical aid. Hence, not only the appeal against conviction is liable to be dismissed but the acquittal of the other accused persons be reversed and they ought to be convicted as conspirators with the appellants in the murder of Sadhana.

Mr. Maity, learned counsel appearing for the State supported the submissions of Mr. Mondal and prayed for dismissal of the appeals filed by the convicts and also prayed that the appeal of the victim be allowed.

From the rival submissions made across the bar, it appears that the prosecution case essentially hinges on the version of P.W. 16, the daughter of the victim who was an eyewitness to the incident and exhibits 11, 14 and 18 being the dying declarations recorded at the medical institutions where the victim was treated.

In order to bring home the guilt of the appellants and other accused persons (who have been acquitted in the instant case), prosecution examined 23 witnesses who may be clubbed in the following categories:-

P.W.s 1, 2, 3, 4, 6, 7, 8, 10 and 12 are the neighbours of the matrimonial home of the victim where the incident occurred.

P.W.s 5, 9, 13, 16 and 17 are the relations of the victim. P.W. 16 is the daughter of the victim who claimed to have been present at the time of occurrence.

P.W. 11 is the private tutor of P.W. 16, daughter of the victim. P.W. 14 is a co-employee with appellant Swapan Mukherjee at SBST. P.Ws.18, 20 and 21 are the medical personnel who were examined. P.W. 15 is the police officer who recorded the first information report at the police station while P.Ws.19 and 22 are the Investigating Officers in the instant case.

P.W. 23 is the Judicial Magistrate who recorded the statement of P.W. 16 during investigation.

Analysis of the evidence of P.Ws.1 to 4, who deposed to be the tenants under accused Karuna Mukherjee, mother-in-law of the victim (since deceased) show that on the night of 2.10.2005 around 9.00 - 9.30 there was a commotion and the victim Sadhana was seen standing in front of the bathroom of the house of the appellants in flames. P.W. 1 rushed to the spot and found that Sadhana was accompanied by P.W. 16, her daughter. He tried to put off the fire. At that time, his sister P.W. 2 also joined him at the place of occurrence. His evidence has been corroborated by other neighbours like P.Ws.3 and 4. P.Ws. 3 and 4 claimed that when they came to the spot the victim made a dying declaration stating that she had been set on fire by her bhasur, Ashim Mukherjee and nanad Tapati Banerjee. P.Ws. 1 and 2 claimed that they took her to Barrackpore Cantonment Hospital. P.Ws. 1 to 4 were cross-examined and they admitted that they had tenancy disputes with Karuna Mukherjee, their landlady and litigations were pending over such issue. P.W. 6 is also a neighbour who rushed to the place of occurrence and saw Anil Chowdhury (P.W. 1) pouring water on the body of Sadhana and Durga Gupta (P.W. 3) changing her sari. He heard from para people that the victim had made dying declaration implicating her bhasur, Ashim Mukherjee and nanad, Tapati Banerjee in the incident. He deposed that Swapan Mukherjee had illicit connection with Sandhya Seal. The victim Sadhana had approached him to compromise the matter. He had sent her to Satya Chatterjee (P.W. 10), the Secretary of the CPIM Party. He handed over a letter of Sadhana to the police which was seized under a seizure list (Ext. 2).

P.W.s 7, 8 and 12 are also neighbours. P.W. 8 claimed that when he came to the spot after hearing the shouts 'bachao bachao', he found mother-in-law of the victim was sitting in a chair and she did not open the gate of the house. P.W. 12 claimed that on 2.10.2005 at 11.00 hours the victim had come to Nayabasti and asked him to show CPI(M) Party Office where she intended to deposit a letter and around 6.30 P.M. on that day she went to the house of the accused persons.

On the way she informed him that her bhasur and husband wanted to sell off the house.

P.W. 10, Satya Chatterjee was the Secretary of CPI(M) Party. He heard from Tamal Bramhachari, Councilor (P.W. 6) that the victim was murdered on 2.10.2005. Police seized a written petition of the victim Sadhana which had been produced at party office on 2.10.2005 at 10.00 - 11.00 hours.

P.W. 11, Tamal Das is the private tutor of Sudipa, daughter of Sadhana Mukherjee. He deposed that on 30.09.2005 he had been to the house of Sadhana at Bose Para, Khardah and the deceased had asked him to write a letter as per her instructions. He wrote the letter (Ext. 5).

P.W. 14, Pratap Chandra Ghosh is an employee of SBTC. He deposed that Swapan Mukherjee was also employed in the same concern. He knew Sadhana as the wife of Swapan Mukherjee. Sadhana submitted a letter at the union office which was seized by the police under seizure list (Ext. 8) on 10.10.2005.

P.W. 5, Prasanta Kundu, P.W. 9, Madhabi Kundu and P.W. 17 Bijoli Dhara are the brother and sisters respectively of the victim.

P.W. 5, deposed that on 21.03.1998 the victim Sadhana was married to Swapan Mukherjee. After marriage the victim couple resided at her father's house at Khardah. A female child was born from the wedlock. Six months prior to her sister's death the appellants, namely, Ashim Mukherjee and Moloy Banerjee came to the house at Khardah and gave a proposal to his deceased sister to sell the house at Khardah and money be handed over to them and thereafter she should reside at the matrimonial home. His sister did not agree to the proposal. Her husband also ill-treated her. His sister submitted a complaint at Barrackpore CPI(M) office against her husband. On 02.10.2005 his sister went to Barrackpore party office and lodged complaint. She returned to her house at Khardah at 12.00 noon. Thereafter, Ashim Mukherjee called his sister to their house at Nayabasti for settlement of the dispute. At about 5.00/6.00 P.M. his sister went to the house of the appellant with her daughter. After entering the house she went to the bathroom. In the bathroom Ashim Mukehrjee poured kerosene on her body. Then Tapati Banerjee set her on fire. She tried to come out of the bathroom but the appellant Ashim Mukherjee did not allow her to come out and forcibly kept her inside by obstructing her with a burning bamboo. She somehow came out of the bathroom and shouted 'bachao bachao' but nobody saved her. A para boy, namely, Anil came there and poured water on the body of his sister. The para people took his sister to the Barrackpore Cantonment Hospital. Thereafter, she was referred to B.N. Bose Hospital and therefrom to R.G. Kar Hospital. On the way to R.G. Kar Hospital his sister stated that Ashim Mukherjee and other in-laws of his sister had called her to their house at Nayabasti for compromise and thereafter they set her on fire.

P.W. 9, Madhobi Kundu corroborated the evidence of P.W. 5 and deposed that on 03.10.2005 the victim made an oral dying declaration to her and stated that her husband did not save her and fled away.

P.W. 17, Bijoli Dhara also corroborated the evidence of P.W. 5. She deposed that the victim had made an oral dying declaration on her way to R.G. Kar Hospital in the ambulance.

P.W. 16, Kumari Sudipa Mukherjee, daughter of the victim, is the most vital witness in the instant case. She was around 10 years old when she was examined. Trial Judge put questions to her in order to determine her competence to depose and thereafter she deposed about the incident. She stated that the incident occurred about three years ago in the bathroom of the house of the accused persons. Her mother had entered the bathroom. Her Jetha Ashim Mukherjee came out of his house and came in front of the bathroom. He poured kerosene oil on her mother by taking oil from the kitchen. Her pisi Tapati Banerjee set her mother on fire. Her mother tried to come out of the bathroom. Her jetha Ashim Mukherjee obstructed her mother with a bamboo. At that time her two other pisi and grandmother were present at the verandah. Her father was also present but he fled away jumping over the boundary wall. After the incident her mother came out of the bathroom shouting ''bachao bachao amar basur amar gaye agun deyeche'. Then Anil kaku poured water on her mother. Then her masi took her mother to B.N. Bose Hospital and thereafter to R.G. Kar Hospital. Her mama Prabir Kundu and masi Bijoli Dhara accompanied her mother to the hospital. After the incident on 7th day of the month her mother expired at R.G. Kar Medical College and Hospital. Police asked her about the incident. She stated the incident to police. She also made statement before the Magistrate. She put her signatures on the statement recorded before the Magistrate.

P.W. 18, Dr. Krishna Mukherjee is the medical officer who treated the victim at Barrackpore Cantonment Hospital where she was brought immediately after the incident. She deposed that she found that the victim had almost 100% burn injuries over her body. The victim told her that she was burnt by kerosene oil by her elder brother-in-law and elder sister-in-law inside the bathroom of the residence. She proved the injury report (Exbt 11). Thereafter, she gave one injection and referred the patient to any State Hospital for proper treatment. She proved her attendance register at the emergency department of the hospital (Ext.

12). In cross-examination she stated that the patient told the history of assault in Bengali. Injury report did not mention that the history of assault was stated in Bengali and she translated the same in English. She did not read over and explain the history of assault to the victim after recording it. She did not take any signature of the patient on the injury report. Subsequently, she gave sedative injection to the patient to relieve her pain. In Ext. 12 the sister concerned wrote referred to any other State Hospital and she wrote 'diazepam with police escort'. A.S.I. Laxmi Ghosh took the patient to State hospital. She also stated that on 03.10.2005 one Ashim Mukherjee was brought by police for medical checkup. She proved the ticket of Ashim Mukherjee. Ashim Mukherjee stated that he suffered burn injury when he tried to save her sister-in-law from burns on 02.10.2005 and he was assaulted by public.

P.W. 21, Dr. Amitava Majumder was posted at R.G. Kar Medical College and Hospital at that time as a Medical Officer. He proved medical report dated 02.10.2005 signed by Dr. M.K. Hazra, his colleague. He knew his handwriting and signature (Ext. 18). The bed head ticket registration number of Sadhana Mukherjee was RG 05234400. On 05.10.2005 Sadhana Mukherjee made a statement before the police in his presence and he affixed a certificate at the bottom of the statement and signed the same (Ext. 14/1). In cross-examination, he stated that he never treated the patient. As per bed head ticket on 2.10.2005 the victim was under the treatment of Dr. Subhobrata Das and Dr. H. Mondal. On 03.10.2005 at 00.30 hrs., the condition of the victim was noted "Nothing per mouth and moist oxygen inhalation". In case of precarious condition, moist oxygen inhalation is advised. In his certificate he did not mention that the victim was physically and mentally alert to give statement. Dr. M.K. Hazra did not write Ext. 18 in his presence.

P.W. 20, Dr. Samar Sinha Das is the postmortem doctor who found burn injuries on the body of the victim. He opined that the victim had died due to burn injuries as per postmortem report.

P.Ws. 19 and 22 are the investigating officers in the instant case. P.W. 19 deposed that he took up investigation on 02.10.2005. He was posted as S.I. at Barrackpore Police Station at the material point of time. He took up investigation of the case as per direction of I.C of that P.S. He visited place of occurrence and prepared rough sketch map with index. He recorded the statements of available witnesses. He seized one broken bucket with smell of kerosene oil and some portions of burnt sari from the place of occurrence and prepared seizure list. He arrested the accused persons. He recorded the statement of daughter of the victim on 05.10.2005. He went to R.G. Kar Hospital and recorded the dying declaration of the victim. On 02.10.2005 the victim was taken to Barrackpore Cantonment Hospital and then she was referred to Dr. B.N. Bose Hospital and on the same date at 23.22 hrs., she was referred to R.G. Kar Hspital. He took up the investigation on 22.15 hrs. Case diary does not mention as to why on 03.10.2005, 04.10.2005 he did not go to R.G. Kar Hospital. On 05.10.2005 between 13.30 hrs. and 14.00 hrs. he recorded the dying declaration of the victim. He did not call Executive Magistrate before recording dying declaration of the victim. He asked Dr. Amitava Majumder (P.W. 21) to record the dying declaration of the victim but he did not record the said dying declaration. P.W. 21 told him to record the statement and also said that he would sign on the statement recorded by him. He did not ask the Superintendent of the hospital to record the statement of the victim. He proved the dying declaration of the victim (Ext. 14). He collected the postmortem report. He collected treatment papers of B.N. Bose Hospital and R.G. Kar Hospital on 7.10.2005. The case was endorsed to Officer-in-Charge for further investigation. In cross-examination he stated that case diary did not mention the name of persons at the place of occurrence on 02.10.2005 at 21.40 hrs. Anil Chowdhury did not write the complaint in his presence. Written complaint was received by him at the place of occurrence and he sent it to police station through constable Ratan Ghosh. At that time one Laxmi Ghosh was the R. T. Officer. He did not cite Laxmi Ghosh as witness to this case.

P.W. 22 concluded the investigation and submitted charge-sheet. From the evidence-on-record it appears that the victim had suffered burn injuries in the night of 02.10.2005 around 9/9.30 p.m. at her matrimonial home. Local people saw her standing in front of the bathroom with burn injuries. P.W. 16 her daughter aged around 6 years at the time of occurrence, was standing beside her. P.W. 1 rushed to the spot and poured water on her person. P.W. 2 wrapped her in a saree. Other people including P.Ws. 3, 4, 6 and 8 also came to the place of occurrence. The victim was thereafter shifted to Barrackpore Cantonment Hospital where she was treated by P.W. 18. P.W. 18 recorded the history of assault as stated by the victim marked as Ext. 11. This is the first written dying declaration of the victim. The said dying declaration was followed by two other declarations recorded at R.G. Kar Hospital where the victim was subsequently admitted on the selfsame night and finally expired on 07.10.2005.

Learned counsel for the convicted appellants submitted that Ext. 11 ought not to be relied on as it was written in English language while the victim made a statement in Bengali. P.W. 18 claimed that she had not read over and explained the statement to the victim after recording it. The author of Ext. 18 (history of assault recorded at R. G. Kar Hospital) has not been examined in this case. Challenging the authenticity of Ext. 14, the dying declaration recorded on 05.10.2005, it was submitted that the victim was in a precarious condition and was administered with moist oxygen on 03.10.2005. Therefore, she cannot be in a fit state to make the statement on 05.10.2005. On Recording of the aforesaid statement is hrouded in mystery. P.W. 21 gave a wrong name of the patient in his certificate. It is argued on behalf of the convicted apellants that Ashim Kumar Mukhopadhyay also suffered injuries and it appears from his treatment sheet and the evidence of the defence witnesses and cross-examination of P.W. 18 that he claimed that he suffered the injuries while trying to save the victim from burns. This fact clearly improbabilises the contents of the dying declarations.

It is trite law that conviction of an accused may be founded on a dying declaration if it is proved that its maker was conscious and in a fit state to make the declaration and the declaration is a truthful one as appearing from the facts and circumstances of the case.

I have, therefore, examined the written dying declarations of the victim from that perspective. Ext. 11 was written by P.W. 18, medical officer attached to Barrackpore Cantonment Hospital where the victim was brought immediately after the incident. There is nothing on record to show that the said medical officer was inimical to the interest of the accused persons. She was an independent witness. In the course of her discharge of official duty she recorded the history of assault as narrated to her by the victim herself wherein the latter implicated the appellants Ashim Kuamr Mukhopadhyay and Tapati Banerjee as the persons who set her on fire. I have no reason to believe that P.W. 18 incorrectly recorded the history of assault and falsely implicated the appellants. After recording the dying declaration, she administered medicine to the victim. Hence, such administration of medicine could not have affected the faculties of the victim while making the statement.

It has been argued that as the victim suffered 100% burn injury she could not have made the dying declaration.

From the evidence of the prosecution witnesses it appears that the victim was conscious when she was taken to the hospital. P.W. 18 categorically stated that the victim herself made the dying declaration to her. From Ext. 11 it appears that the doctor had prescribed sedatives only after recording the dying declaration of the victim. There is nothing on record to show that there was any vitiating influence which may affect the credibility of the dying declaration. On the other hand, after recording the dying declaration which indicated homicidal burns, P.W. 18 directed that the victim be shifted to another hospital with police escort. The aforesaid declaration was followed by another dying declaration (Ext.

18) which was recorded at R.G. Kar Medical College and Hospital at the time of her admission on 02.10.2005 at 23.22 hrs. Ext. 19 was recorded by Dr. M.K. Hazra and proved by P.W. 21, another doctor of the hospital. Ext. 18 reads as follows :

"Asim Mukherjee poured kerosene on her body and Tapati Baenreje kindled her body, in presence of Karunamoyee Mukherjee, thus she was burnt on 2.10.05 at 9 P.M.".

Although, Dr. Hazra was not examined, the document has been duly proved by P.W. 21 his colleague who was acquainted with his hand writing.

Finally on 05.10.2005 in the presence of P.W. 21, P.W. 19 (investigating officer) recorded the statement of the appellant in question answer form in Bengali. The said document has been exhibited as Ext. 14. The dying declaration is certified by P.W. 21 who stated that the victim was conscious and were answering the questions clearly. The certificate of P.W. 21 has been criticized on the ground that he was not treating the victim and he had, in fact, endorsed an incorrect name in his certificate. I am unable to accept such contentions.

P.W. 21 is a qualified medical practitioner who was present at the time of examination of the victim by P.W. 19. He found the victim conscious and able to answer the questions clearly. Although, it appears from the bed head ticket that the victim had been given sedatives earlier and was administered moist oxygen on 03.10.2005, there is no evidence on record that on the date of recording of the said statement of the victim, that is, 05.10.2005, she was not conscious or was unable to make a statement. On the other hand, certificate of P.W. 21, a doctor who was present at the time of declaration, dispels all doubts in that regard. Incorrect recording of name by P.W. 21 in the certificate has been clarified by referring to the registration number of the victim clearly showing that it was the victim herself who made the statement to P.W. 19 (investigating officer) in the presence of P.W. 21.

I have examined all the three written dying declaration and they consistently state the roles of the appellant Ashim Kumar Mukhopadhyay, elder brother-in-law and Tapati Banerjee, elder sister-in-law who set the victim on fire.

The aforesaid dying declarations are corroborated by the daughter of the victim P.W. 16 who was present at the place of occurrence. Her evidence has been challenged on the ground that she was merely six years of age and there are clear embellishments as regards the roles of Ashim Kumar Mukhopadhyay and Tapati Banerjee in the incident. Learned counsel has drawn my attention to the earlier statements of the said witness to the police officer as well the Magistrate. Before the police officer the witness did not spell out the specific roles of the said appellants and before the Magistrate, she was silent as to the role of Tapati Banerjee. The evidence of a child witness aged around six years who claimed to have seen her mother being set on fire before her own eyes has to be examined with some degree of sensitivity. She was examined by the police on the very next day and naturally due to the utter trauma suffered by her she was unable to narrate the incident in details. She, however, in her earlier statements clearly indicated the presence of her elder uncle Ashim Kumar Mukhopadhyay and elder aunt Tapati Banerjee at the place where the victim was set on fire. Hence, her evidence substantially corroborated the aforesaid dying declarations recorded by or in presence of medical personnel and lands credence to their truthfulness. On the other hand, the desperate effort of Ashim Kumar Mukhopadhyay to extricate himself from guilt by claiming that he suffered burn injuries in order to save the victim is most flimsy and fraught with improbabilities. Had Ashim Kuamr Mukhopadhyay really tried to save the victim and consequentially suffered burn injuries, it is patently absurd that he would be assaulted by local people as recorded in the history of assault. On the other hand, such conduct of the local people reinforces the prosecution case of homicidal death and wholly discredits the defence version, as aforesaid.

Hence, I am inclined to hold the appellants namely, Tapati Banerjee (appellant in CRA 430 of 2013) and Ashim Kumar Mukhopadhyay @ Ashim Mukherjee (appellant in CRA 431 of 2013) are guilty of commission of offence punishable under Section 302 of the Indian Penal Code.

Accordingly, CRA 430 of 2013 and CRA 431 of 2013 are dismissed. Coming to the conviction of Swapan Mukherjee, husband of the victim which is challenged in CRA 428 of 2013, I note that there is no evidence on record connecting Swapan in setting the housewife on fire on the fateful night.

It has been alleged that Swapan as the husband of the victim did not make any attempt to save her, on the contrary, he fled away from the spot. Evidence on record shows that marriage of Swapan with the victim was not accepted by the in-laws. The couple started residing together at Khardah in a house purchased by the father of the victim. Thereafter, relationship soured and Swapan withdrew from the company of the victim. Few weeks prior to the incident he had deserted the victim and started residing with his relations. The victim pursued him to his office as well as his residence. Pressure was put on the victim to sell the property at Khardah. However, nothing has come from the mouth of the victim in her dying declarations that she was tortured by Swapan during her lifetime. The letter dated 30th September, 2005 submitted to the Secretary of the local political party (P.W. 10) does not inspire confidence. It is claimed that the said letter was written by P.W. 11 on the dictation of the victim. There is no explanation why the victim, an educated lady, chose not to write the letter by her own hand but dictated the same to P.W. 11 who scribed the same. Such unnatural conduct is not explained in the facts of the case.

I do not wish to give credence to the said document of suspicious origin to come to a finding that Swapan had subjected the victim to torture. In none of the dying declarations (Exts. 11, 14 and 18) has the victim spoken about the presence of Swapan at the place of occurence. She is also silent with regard to the allegation that Swapan had fled away from the spot. In Ext. 14 she merely states that Swapan and Ashim had pressurised her to sell the house at Khardah. On the basis of such flimsy evidence and the fact that the victim does not in any of the dying declarations state that Swapan ran away from the place of occurrence and did not try to save her, I am unwilling to come to the conclusion that Swapan abetted the act of murder by his brother, Ashim Mukherjee and sister, Tapati Banerjee, as aforesaid.

In the light of the aforesaid discussion, conviction and sentence of Swapan Kumar Mukhopadhyay @ Swapan Mukherjee, appellant in CRA 428 of 2013 is set aside.

CRA 428 of 2013 is accordingly, allowed.

With regard to the evidence against the other accused persons who are the younger sisters-in-law of the victim and husband of the elder sister-in-law namely, Tapati Banerjee, I find that the victim had not referred to them in any of her dying declarations. P.W. 8 stated that mother-in-law of the victim, Karuna, did not open the gate. There is no specific allegation against the acquitted accused persons that they obstructed the neighbours from entering the house. There is also no evidence that they subjected the victim to torture. Their mere presence at the place of occurrence, even if believed, cannot lead to any inference of culpability as they ordinarily resided in the house where the incident occurred.

It is settled law that the presumption of innocence of an accused is reinforced when an order of acquittal is passed in his favour and such acquittal ought not be disturbed if the view is a reasonable one. In Dhanna Etc. vs State of Madhya Pradesh, (1996) 10 SCC 79, the Apex Court held as follows:-

"Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been following by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has to bear in mind: first, that there is a general presumption in favour of the ignorance of the person accused in criminal cases that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him. He would retain that benefit in the appellate court also. Thus, appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to the interfered with or disturbed."

Applying the aforesaid ratio to the facts of the case, I am of the view that the acquittal recorded against the other accused person is a reasonable one and the evidence on record does not give rise to an absolute assurance of their guilt. Hence, the order of acquittal does not call for interference.

Acquittal of the accused persons namely, Mandira Mukherjee, Shipra Mukherjee, Moloy Bramhachari @ Banerjee and Sandhya Seal is upheld.

CRA 719 of 2013 is accordingly, dismissed.

The period of detention undergone by Tapati Banerjee (appellant in CRA 430 of 2013) and Ashim Kumar Mukhopadhyay @ Ashim Mukherjee (appellant in CRA 431 of 2013) during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon them in terms of Section 428 of the Code of Criminal Procedure.

Swapan Kumar Mukhopadhyay @ Swapan Mukherjee (appellant in CRA 428 of 2013) shall be discharged from his bail bond after six months from date in terms of Section 437A of the Code of Criminal Procedure.

All the appeals are accordingly, disposed of.

The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.

(Joymalya Bagchi, J.) I agree.

(Ravi Krishan Kapur, J.)

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Calcutta High Court (Appellete Side)