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2001 DIGILAW 530 (CAL)

Pradip Ghosh v. State of West Bengal

2001-08-22

Narayan Chandra Sil, Nure Alam Chowdhury

body2001
JUDGMENT Narayan Chandra Sil, J.: This appeal was directed against the judgement and order of conviction passed by Sri A. K. Dasgupta, learned Sessions Judge, Maida in connection with Sessions Case No. 38 of 1991 corresponding to Sessions Trial No. 36 of 1991. The learned Sessions Judge was pleased to find the appellant guilty for committing an offence under section 302 I.P.C. and sentenced him to suffer imprisonment for life. 2. This is a bride burning case, but here the husband set fire and the wife succumbed to her injuries. The appellant/ husband used to reside with his wife Champa in J.M.C.D. buildings at Harishchandrapur. There were several other tenants in the said buildings residing side by side in separate tenanted accommodations in the same J.M.C.D. buildings. The appellant and the victim had strained relation. The appellant was also in the habit of taking liquor. In the mid night of 7.4.1984 the co-tenants heard the sounds of breaking glass coming from the tenanted room of the appellant where at the material point of time the appellant, his wife and two children had been residing. The co-tenants as many as 5/6 in numbers and others woke up and found smoke and flame coming out of the room where the appellant had been residing. They also heard the cry of the victim Champa asking to save her. They also found Champa burning. They smelt kerosene oil on the spot. The co-tenants found the appellant to put the nylon mosquito net and saree on the burning body of the victim in order to cause further damage. In the milieu the appellant, Pradip Ghosh, the husband of the victim managed to escape from the spot. Thereafter one of the co-tenants called the Ambulance over telephone and the victim was taken to the hospital where she immediately succumbed to her injuries. 3. It appears from the records of the learned lower court that the appellant absconded for about. long seven years after the occurrence and ultimately on 13.3.1991 he was brought. under arrest by Calcutta• Police of Shampukur Police Station and produced before the learned S.D.J.M., Maida. After commitment the learned Sessions Judge framed the charge against the appellant for the offence under section 302 I.P.C. when the appellant pleaded not guilty and claimed to be tried. As many as 17 witnesses had been produced by the prosecution. under arrest by Calcutta• Police of Shampukur Police Station and produced before the learned S.D.J.M., Maida. After commitment the learned Sessions Judge framed the charge against the appellant for the offence under section 302 I.P.C. when the appellant pleaded not guilty and claimed to be tried. As many as 17 witnesses had been produced by the prosecution. After conclusion of the trial the learned Sessions Judge was pleased to find the appellant guilty for committing offence under section 302 I.P.C. and sentenced him to the terms already mentioned. 4. It is argued by the learned Advocate for the appellant in the instant case that the conviction was made mainly on the post mortem report. It is pointed out by him that from the post mortem report it appeared that both the soles of the victim were burnt in the occurrence. The learned Advocate for the appellant tries to impress upon us that both the soles can be burnt only if somebody stands on the burning substance. According to him the occurrence is accidental in nature and not homicidal. It is also pointed out by him that the appellant tried to extinguish the fire and this goes to support that the occurrence was accidental in nature. The learned Advocate for the appellant has further argued that the I.O. had eschewed himself from preparing any sketch map of the place of occurrence and as such it cannot be said that there was a separate kitchen. In fact, it is the case of the defence, according to the learned Advocate for the appellant, that the room in question was being used as bed room-cum-kitchen and the accident took place at the time of preparation of food. The learned Advocate for the appellant tries to find out the contradiction between the evidence of the P.W.3 and the report of the chemical examiner and thus, though the P.W.3 smelt kerosene oil on the place of occurrence, the chemical examiner opined that the samples were too skimpy to be identified. As regards the abscondence of the appellant. immediately after the occurrence, the learned Advocate for the appellant has argued before us that the appellant had gone to district of Bagura of Bangladesh. As regards the abscondence of the appellant. immediately after the occurrence, the learned Advocate for the appellant has argued before us that the appellant had gone to district of Bagura of Bangladesh. It is also pointed out by him that the children of the victim were not examined by the I.O.; although the question on their alleged statement had been asked by the learned trial Judge during the examination of the appellant under section 313 Cr. P.C. According to the appellant, the P.WA is the main witness. The learned Advocate for the appellant is sceptical in placing reliance on the evidence of the P.W. 1 who is the father of the victim. 5. In the instant case there is no eye witness of the occurrence and the conviction made by the learned Sessions Judge is based on circumstantial evidence. In a case of conviction based on circumstantial evidence all precautions must be made to chain the circumstances cautiously to avert any chasm. The circumstances must be so articulate in nature that there may not be any occasion for any speculation otherwise. 6. P.Ws. 2, 3, 4, 5 and 11 are all the co-tenants of the appellant and, in fact, they are the close-door neighbours of the appellant. It appears from the evidence of all those witnesses that there was incident of glass breaking before flame and smoke were noticed and after sometime the witnesses came out of their respective rooms and found flame and smoke coming out of the room of the appellant. It was also found that the appellant was putting nylon mosquito net and nylon saree on the body of the victim to aggravate the fire. Those co-tenants have stated in their evidence that the victim cried to save her and in the milieu the appellant managed his escape from the place of occurrence leaving his two tender aged children on the spot. It is in the evidence of the P.W.2 that he had a telephone in his room for his being an employee of the Telephone Department. He informed the Hospital Authority over the telephone to send the Ambulance. There is no cross-examination of the P.W.2 on this point, although the appellant stated at the time of his examination under section 313 Cr. P.C that he went to bring Ambulance against the question that he had escaped the place of occurrence. He informed the Hospital Authority over the telephone to send the Ambulance. There is no cross-examination of the P.W.2 on this point, although the appellant stated at the time of his examination under section 313 Cr. P.C that he went to bring Ambulance against the question that he had escaped the place of occurrence. P.W.3 stated in his evidence that he got the smell of kerosene oil from the place of occurrence and the accused fled away when the witnesses thronged there. The statement of the P.W.3 was confronted in his cross-examination and it was stated by him that he made the same statement before the I.O. that he got the smell of kerosene oil in the room of the accused. P.W. 17 is one of the Las. who had recorded the statement of the witnesses under section 161 Cr. P.C. The attention of the P.W.17 was drawn to the statement of the P.W.3 and the I.O. stated that the P.W.3 stated before him that the accused put nylon mosquito curtain and clothings on the body of Champa when she was engulfed in flames. The defence was conspicuous not to put any question to the P.W.17 as regards the evidence of the P.W.3 that he found the appellant to escape from the place of occurrence. The P.W.4 also got the smell of kerosene oil from the place of occurrence and found the appellant to press the burning body of the victim with mosquito curtain and other beddings to aggravate the flame. There is no cross-examination of the P.W.4 on that point, excepting a suggestion in the form of in-direct admission that the accused made attempt to save his wife by pressing nylon mosquito curtain and other bedding on her body. According to the P.W.5 relation between the victim and the appellant was strained as the accused was addicted to liquor. He also found the appellant to run away from the room where the occurrence took place. There is no cross-examination of the P.W.5 excepting one suggestion put that the accused did not flee away from the place of occurrence which was, of course, denied. The P.W.11 is the wife of the P.W. 4. She stated in her evidence that on the night of occurrence she heard the sound of assault coming out of the room of the appellant. The P.W.11 is the wife of the P.W. 4. She stated in her evidence that on the night of occurrence she heard the sound of assault coming out of the room of the appellant. She also found flame in the room of the accused and heard the deceased Champa weeping. According to the P.W.11 there were frequent quarrels between the victim and the appellant. It is stated by the P.W.11 in her cross-examination that she was not examined by the I.O. 7. It is the defence case, as it appears from the examination of the accused under section 313 Cr. P.C., that at the time of occurrence when the fire broke out there was none in the room and just then the appellant came up there from his shop and he tried to extinguish the fire. It is also the case of the defence that on his shouting the other people assembled there and he went to the hospital to call the Ambulance. When the appellant was asked as to whether he would adduce any evidence he negated the same. 8. It is now the settled principle of law that the examination of the accused under section 313 Cr. P.C. is not a matter of formality and a responsibility is cast on the defence to substantiate any case, if made out at the time of examination of accused under section 313 Cr. P.C. In the instant case the appellant had fled away the place of occurrence when the co-tenants assembled there, leaving his two hapless and helpless children in the ocean of uncertainty and according to the learned Advocate for the appellant, he had gone to Bagura in Bangladesh. The fact suggests that the appellant was apprehended by the Calcutta Police of Shampukur Police Station and thereafter produced before the learned SDJM, Maida after almost seven years. The defence has miserably failed to bring out any motive of the witnesses to implicate the appellant in this case and even not a single suggestion had been put to those witnesses on their motive of going against the appellant. This is a case where the evidence of the witnesses is articulate enough to draw the inevitable conclusion that the appellant committed the murder of his wife by setting fire. 9. This is a case where the evidence of the witnesses is articulate enough to draw the inevitable conclusion that the appellant committed the murder of his wife by setting fire. 9. We do not thus find anything to interfere with the judgment and order of conviction passed by the learned Sessions Judge although the learned Sessions Judge appears to have overlooked the mandatory provisions of section 302 I.P.C. to impose fine in case of conviction. But for that reason only the judgment and conviction passed by the learned Sessions Judge are not vitiated particularly when the conviction is for the term of life. 10. The appeal is thus dismissed on contest. A copy of this judgment along with the L.C.R. be sent down immediately to the learned lower court. Nure Alam Chowdhury, J.: I agree. Appeal dismissed.