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2007 DIGILAW 555 (CAL)

BHAJU ALIAS BHUTIA MAL v. STATE OF WEST BENGAL

2007-07-25

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2007
GIRISH CHANDRA GUPTA, J. ( 1 ) BANKURA Police Station Case No. 46 of 1995, against Bhaju Mal alias Bhutia, son of late dasarath Mai of village Ektesar in the district of bankura, was started pursuant to a complaint dated 17-4-1995, lodged by Shri tarun Mal which formed the basis of the formal FIR under Ss. 498-A/326/307 of the indian Penal Code. Subsequently with leave of the Court S. 302 was added. He was charged under Ss. 498-A and 302 of the Indian Penal code by the learned Additional sessions Judge, Bankura and was ultimately convicted under both the aforesaid sections by a judgment and order dated 5th june, 2002. By an order dated 6th'june, 2002 he was sentenced to suffer rigorous imprisonment for life as also to pay a fine of rs. 2000/- and in default to suffer further rigorous imprisonment of one year for the offence punishable under S. 302 of the Indian penal Code. No sentence was however awarded for the offence under S. 498-A. The accused has now come up in appeal. ( 2 ) THE facts and circumstances of the case briefly stated are as follows :-The accused-appellant was married to shrimati Neela Mal three or four years prior to the date of occurrence. They had no issue. On 29th March, 1995 at about 11 p. m. in the night the accused-appellant is alleged to have poured kerosene oil on Shrimati neela Mal and is further alleged to have set her on fire. She was shortly thereafter admitted to Govindangar Hospital by the accused-appellant himself in burnt condition. After admitting the victim into the hospital he sent an information to the relations of the victim and thereafter made himself scarce. Upon coming to know of the incident Tarun mal the uncle of the victim got in touch with her and lodged the complaint on 17th April, 1995 with the police disclosing the particulars of the ward and bed number where the victim was lying. The victim made a dying declaration in the presence of the Deputy Magistrate/collector and ultimately died on 18th May, 1995. ( 3 ) THE point which arises for consideration is whether the prosecution has been able to bring home the charges laid against the accused-appellant. The victim made a dying declaration in the presence of the Deputy Magistrate/collector and ultimately died on 18th May, 1995. ( 3 ) THE point which arises for consideration is whether the prosecution has been able to bring home the charges laid against the accused-appellant. ( 4 ) P. W. 3 Tarun Mal, the uncle of the victim has deposed that ever since the victim was married to the accused-appellant she was subjected to torture. P. W. 4 Sumitra, the younger sister of the victim has corroborated the aforesaid testimony of Tarun Mal. She has added that even during her marriage when the couple had gone to their village, the victim was not spared and she was assaulted. The same story was repeated by p. W. 9 Shrimati Alaka Mondal, another sister of the victim. P. W. 4 sumitra has added that the accused-appellant was unhappy with the victim because she had not borne a child. P. W. 2 Charu, a neighbour has also deposed that the accused-appellant used to assault the victim. There is thus dependable evidence to show that the accused-appellant was in the habit of inflicting physical torture upon his deceased-wife. ( 5 ) THE victim made a dying declaration which was scribed by the Sub-Inspector s. Ansari who is P. W. 6 in this case. The dying declaration was made in presence of P. W. 11 Dr. B, Sharma. The dying declaration was made to P. W. 12 Kalyan Bose, the Deputy magistrate/collector. The dying declaration is Exhibit 1/2 in this case which reads as follows : "i, Smt. Neela Mal, w/o Sri Bhaju Mal of ekteswar, P. S. + dist. Bankura am stating that my age is about 20 years. I got married three years ago. I don't have any issue. On 14th Chaitra last (Bengali Calendar) (dt. 29-3-1995 A. D.) after working in the brick-field throughout the day and having completed my household duties, I took my meal and went to bed. While going to bed, 1 saw my husband sitting in the verandah. Then at about 10/11 p. m. my husband (Bhaju) poured keorsene oil on my body and set my body on fire. When regained my senses, I found myself in the hospital and I came to know that my husband got me admitted in the hospital. Since then my husband has never come to see me till date. Then at about 10/11 p. m. my husband (Bhaju) poured keorsene oil on my body and set my body on fire. When regained my senses, I found myself in the hospital and I came to know that my husband got me admitted in the hospital. Since then my husband has never come to see me till date. This statement of mine is true and correct to my knowledge. " ( 6 ) MR. Ghosh, learned Advocate appearing by way of legal aid for the appellant submitted that the charge was defectively framed because full particulars of the offence were not disclosed. He however has not been able to show any prejudice caused to the accused-appellant by the alleged omission of the particulars in the charge. ( 7 ) HIS next submission was that the inquest report goes to show that the victim caught fire. He submitted that there is a sea of difference between the victim being set on fire and the victim catching fire. We have not been able to appreciate this submission either. The inquest report made by the S. I. does not and cannot have any evidentiary value as regards the cause of the fire. ( 8 ) HIS third submission was that the victim was not in a physical condition to make a dying declaration. This submission is equally without any force. The dying declaration was made in the presence of a doctor and the Deputy Collector of the district. It is on record that the victim survived for more than one and half months after the date of occurrence. Not only that the dying declaration was made and taken down by the deputy Collector, such declarations were also separately made to P. W. 3 and P. W. 4. We therefore, have no doubt in our mind that the victim was in a physical and mental condition to make the dying declaration. ( 9 ) THE fourth submission made by Mr. Ghosh was that a conviction cannot be recorded merely on the basis of a dying declaration. This submission of mr. Ghosh is erroneous in point of law. It has authoritatively been held in the case of Khushal Rao v. State of Bombay, reported in 1958 SCR 552 that conviction can be arrived at solely on the basis of a dying declaration and no corroboration is required in that regard. This submission of mr. Ghosh is erroneous in point of law. It has authoritatively been held in the case of Khushal Rao v. State of Bombay, reported in 1958 SCR 552 that conviction can be arrived at solely on the basis of a dying declaration and no corroboration is required in that regard. ( 10 ) THE fifth submission of Mr. Ghosh was that the conduct of the accused/appellant should be taken into consideration. He did not run away. He admitted the patient into the hospital. He informed the relations of the victim. Therefore, the conduct of the accused goes to show that he is innocent. We are unable to give any credence to this submission. It is true that the accused-appellant informed the relations of the victim and it is equally true that after admitting the victim in the hospital and informing her relations he was nowhere near the victim. ( 11 ) ASSAILING the dying declaration once again he submitted that the dying declaration does not contain a certificate that the victim was, competent to make the dying declaration. It is true that such a certificate is not there but this deficiency has been more than made up by the evidence of the deputy Collector/magistrate in whose presence the dying declaration was made as also the evidences of the doctor, S. I. , P. Ws. 3 and 4 each one of whom personally heard the victim to make the dying declaration. We therefore find no substance in this submission. ( 12 ) THE seventh submission of Mr. Ghosh was that the F. I. R. was lodged at a belated stage. It is true that the FIR was lodged on 17th April, 1985 whereas the incident occurred on 29th March, 1995. The FIR could not have been lodged earlier because the relations of the victim were ignorant about the incident. Only after they were informed they rushed to the hospital, met the victim and lodged the FIR. Therefore the delay in lodging the FIR is not material in this case. ( 13 ) THE eighth submission of Mr. Ghosh was that the investigation was not properly conducted. No garments of the victim were seized. When the incident itself was not disclosed to the relations of the victim for such a long time it hardly lies in the mouth of the accused-appellant to contend that the garments were not seized. ( 13 ) THE eighth submission of Mr. Ghosh was that the investigation was not properly conducted. No garments of the victim were seized. When the incident itself was not disclosed to the relations of the victim for such a long time it hardly lies in the mouth of the accused-appellant to contend that the garments were not seized. ( 14 ) LASTLY it was submitted that the accused-appellant did not intend to kill the victim. She, as a matter of fact, died of septic absorption and, therefore, it is a case in which punishment could at the highest have been inflicted under Part II of S. 304 of the indian Penal Code. Dr. M. N. Dey who assisted late dr. J. N. Roy in conducting the post-mortem upon the body of the deceased deposed that death was due to septic absorption as a result of burn injury. Therefore, the cause of death is the burn injurj which degenerated in septic absorptior causing greater pain and suffering to the victim. The case is one which squarely comes under Cl. 3 of S. 300. The victim was intentionally set on fire after pouring kerosene oil on her person and the injury caused tc the victim was sufficient in the ordinary course of nature to cause death. The doctor has deposed that it is the burn injury which degenerated in septic absorption. There is therefore no escape from the conclusion that the injury inflicted was sufficient in the or dinary course of nature to cause death, naturally consequence of the injury inflicted upon the victim cannot but be said to have been intended by the accused-appellant. Such an intention shall be presumed in the absence of any explanation from the accused-appellant. There is no such explanation in this case. If any authority is needed for the view we have taken reference may be made to the case of Virsha Singh v. State of punjab, reported in AIR 1958 SC 465 . "the question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warant an opposite conclusion. " ( 15 ) WE therefore are of the view that it is a clear case of murder. There is thus no scope for any interference. The appeal in the result fails and is dismissed. Appeal dismissed.