Calcutta High Court (Appellete Side)
Prasanta Sil vs The State Of West Bengal on 6 March, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 06.3.2017
CRA 228 of 2009 Prasanta Sil Vs. The State of West Bengal Mr. Soubhik Mitter Mr. Rajiv Lochan Chakraborty Mr. Debapratim Guha Mr. Priyanjit Kundu ..for the Appellant Mr. Subir Banerjee Mr. Sudip Ghosh Mr. Rudradipta Nandy ..for the State The facts and the evidence before the trial court are not much questioned by the appellant. The appellant merely states that the circumstances leading to the unfortunate act of the appellant should have earned him a lesser sentence as there was no evidence that the appellant premeditated or even intended to murder his wife.
It appears from the dying declaration of the victim obtained on July 7, 2007 that the appellant herein was inebriated. The appellant beat the victim and poured kerosene on her before trying to set her ablaze for the victim not handing over the keys to an almirah that the appellant demanded. It is best to 2 notice the contents of the dying declaration recorded on July 7, 2007:
"As per the statement of patient, she was sleeping at her own home. At about 2.30 p.m. (sic, a.m.) on 4.7.07 at night her husband entered the house in a drunk state. Her husband asked her to give him the key of Almirah but she did not complied (sic, comply), then her husband started beating her with hands. Then he poured kerosine oil on her person and tried to set fire with match stick but failed. Then her husband put fire on handkey (sic, handkerchief) and thread (sic, threw) the lighted handkey on her body. Then she started crying and tried to save her by running. Her husband then came forward to put down the fire."
In course of the deposition of the concerned medical officer, such medical officer testified to the veracity of the statement attributed to the victim. He recounted that at the end of the statement, the victim narrated that the husband had tried to put off the fire once he found that she was ablaze.
The appellant says that nothing in the evidence would suggest that the appellant entered the room with the intention of murdering his wife. The appellant was in a drunken state and may have wanted the keys to the almirah to obtain more money. Upon the wife protesting or resisting him, the appellant became violent and started hitting her. The kerosene was in 3 the room and the appellant poured the same on his wife. Even after the burning handkerchief was thrown at the wife and she caught fire, the appellant attempted to douse the flames and such position was asserted by the victim herself. Considering the circumstances, it appears that the appellant went in to a fit of rage, lost control over himself and his senses and set the victim ablaze in his rage without really intending to kill her. The subsequent conduct of the appellant was neither cruel nor unusual as he tried to save the victim and put off the fire. The conduct of the appellant can be seen to fall within the fourth exception to Section 300 of the Penal Code. As a consequence, the appellant should have been found guilty under the second part of Section 304 of the Penal Code.
Accordingly, CRA 228 of 2009 is allowed in part by modifying the order of conviction from one under Section 302 of the Penal Code to the second part of Section 304 of such Code. In view of the mitigating conduct of the appellant, as evident from the statement of the victim, that he immediately tried to put off the fire after the magnitude of his foolishness dawned on him even in his drunken condition, the appellant is 4 awarded a sentence of eight years' rigorous imprisonment. The term will be set off against any time that may already have been spent in prison by the appellant.
Since the appellant has served out four years, he is required to serve out the balance sentence. The bail bonds furnished by the appellant stand discharged and the appellant is directed to surrender as expeditiously as possible.
Let a copy of this order be immediately forwarded to the appellant. The lower court records be sent down forthwith along with a copy of this order for immediate appropriate action in accordance with law.
(Sanjib Banerjee, J.) (Siddhartha Chattopadhyay, J.)