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2014 DIGILAW 252 (CAL)

Mohan Hansda v. State of West Bengal

2014-03-21

NISHITA MHATRE, TAPASH MOOKHEREJEE

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Judgment : Nishita Mhatre, J. 1. The appellant has been convicted by the Sessions Judge, Uttar Dinajpur for offences punishable under Sections 448, 326, 307, 436 and 302 of the I.P.C. He has been sentenced to pay a fine of Rs.500/- for the offence punishable under Section 448 of the I.P.C. or in default to suffer rigorous imprisonment for 2 months. He has also been sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-. In default of payment of fine he shall undergo rigorous imprisonment for 6 months. For the offence punishable under Section 307 of the I.P.C. the appellant has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/-. In default of payment of fine he shall undergo rigorous imprisonment for 6 months. A similar sentence of life imprisonment has been awarded for the offences punishable under Sections 436 and 302 of the I.P.C. and to pay a fine of Rs.5000/- or in default rigorous imprisonment for 6 months. All the sentences are to run concurrently. 2. The case of the prosecution in brief is that on 18th August, 2001 the complainant – PW 5 heard cries from the house of Musai @ Chhoto Hembram. He ran to the house and found that his brother Musai, his wife Malati and their three daughters were burnt and were seriously injured. Several villagers gathered there and the victims were rushed to the Kaliaganj Hospital. On the advice of the Doctor present there, the injured were admitted to Raiganj Hospital. One of the daughters of Musai died in the hospital, while Musai and his wife and two children were admitted in the hospital for treatment. According to the prosecution someone entered the house of Musai at about 12.30 a.m., poured some cold fluid on the victims who saw that the appellant had set them ablaze and then fled away. The case of the prosecution is that Mohan Hansda, the appellant herein, had acted in this manner because his expression of love for Malati was spurned by her. Musai who sustained 70 per cent burn injuries survived and has been examined as one of the witnesses for the prosecution. Malati and their 3 children succumbed to the burn injuries. 3. The prosecution has examined 17 witnesses to prove the guilt of the appellant. PW 1 is the mother of Malati. Musai who sustained 70 per cent burn injuries survived and has been examined as one of the witnesses for the prosecution. Malati and their 3 children succumbed to the burn injuries. 3. The prosecution has examined 17 witnesses to prove the guilt of the appellant. PW 1 is the mother of Malati. She has stated that her daughter told her about the incident in the hospital. In the crossexamination she has stated that on seeing the condition of her daughter and grand-daughters she had become unconscious and that she was not aware of what happened in the hospital thereafter. She has admitted that it was only after returning from the hospital that she gathered the details of the incident from the villagers. She did not know personally the manner in which the accident occurred. 4. PWs 3 and 4 who were Home Guards, posted in the Raiganj Police Station, delivered the bodies of the deceased to the morgue for the post mortem examination. 5. PW 5 is the complainant. He is the elder brother of Musai Hembram. He has stated that the appellant had a dispute with Musai because he was attracted to Musai’s wife Malati. According to him, it was because of the unrequited love of the appellant that he entered into the house of Musai, poured petrol on the body of the members of the family and set them ablaze. According to him, Musai and his wife Malati saw the appellant standing in the room before setting them ablaze. This witness has claimed that when the victims were rescued from the blaze and were being taken to Kaliaganj hospital, they were still in their senses. He has deposed that while transferring the victims from Kaliaganj Hospital to Raiganj Hospital on the advice of the Doctor, the little girl Sajil @ Minati died, while the others were admitted to the Raiganj Hospital. Malati and her other two children died in the hospital two days later. This witness had also mentioned that Malati had informed him that the appellant had proposed to her and when she spurned his overtures he threatened to set her on fire. According to PW 5, the FIR was written by Suresh Mahato, who has been examined as PW 16, on his instructions. This witness had also mentioned that Malati had informed him that the appellant had proposed to her and when she spurned his overtures he threatened to set her on fire. According to PW 5, the FIR was written by Suresh Mahato, who has been examined as PW 16, on his instructions. In his cross-examination PW 5 has stated that one month prior to the date of the incident there was an altercation between the appellant and Malati because she had refused his proposal due to which he had threatened her with dire consequences. The family, i.e., Musai, Malati and their three children went to stay with the parents of Malati thereafter. There was a settlement in the village between the concerned parties regarding the aforesaid incident. 6. This witness has more or less adhered to the contents of his complaint which was registered as the FIR on 19th August, 2001 at 11.05 a.m. pursuant to which Kaliaganj Police Station Case no. 87 of 2001 dated 19th August, 2001 was started. The FIR was sent to the Sub- Divisional Judicial Magistrate on 24th August, 2001. 7. PW 6 is a witness to the seizure. In his cross-examination he has stated that he did not have any opportunity to speak to either Musai or Malati when they were being driven to Kaliaganj Hospital in a van. He has admitted that there was a dispute earlier between Musai and his wife which had been settled in the village. 8. PW 7 is a villager who has corroborated all the version of PW 5 that the appellant had made advances to Malati which she had spurned. In his cross-examination he has stated that Malati and the appellant had a love affair and that the village elders had cautioned them not to indulge in such activities. This witness accompanied the victims in the van and he has stated that they had no capacity to utter any word as they were crying. He is also a witness to the seizure, but he could not identify any of the seized articles in Court. 9. PW 8 owns land in the Khotasa village where the incident had occurred. His deposition is merely hearsay evidence as he had not witnessed the crime and he had heard about the incident from PW 5. In his cross-examination PW 8 has deposed that he has no personal knowledge of the incident. 9. PW 8 owns land in the Khotasa village where the incident had occurred. His deposition is merely hearsay evidence as he had not witnessed the crime and he had heard about the incident from PW 5. In his cross-examination PW 8 has deposed that he has no personal knowledge of the incident. He was supposedly a witness to the seizure. However, his signature is not appended to the seizure list. 10. PW 9 Musai Hembram is the husband of the victim Malati. He has described the incident and stated that he was sleeping in the room along with his family. The door was not bolted as it was summer. The appellant entered the room and poured petrol on all the members of the family and set them ablaze. In his cross-examination he has admitted that he awoke after hearing the crying of his wife and found flames of fire engulfing him. He has admitted that neither he nor his wife nor his children were in a position to talk after the incident as they were unconscious and had no knowledge about how they were admitted to hospital for treatment. This witness has admitted that there was a dispute between him and his wife, he assaulted his wife because of which his wife went off to her father’s house. A settlement was arrived at in the village over this incident. He has candidly admitted that the villagers suspected that the appellant had set fire to them and it was because of that he had accused the appellant of having committed the crime. Surprisingly this witness has stated that he awoke only after he heard his wife crying out. He made no attempt to apprehend the accused when the latter was pouring petrol on himself and the members of his family. This conduct is incongruous and ludicrous to say the least. 11. From the evidence of the aforesaid witnesses, there is no material to indicate that it was the appellant who had committed the crime. In fact, PW 9, the husband of the victim has stated that he has accused the appellant of having committed the dastardly act only at the instance of the villagers. 12. There is a dying declaration of Malati which has been recorded by PW 10, the Executive Magistrate. He has stated that the Hospital Superintendent Dr. In fact, PW 9, the husband of the victim has stated that he has accused the appellant of having committed the dastardly act only at the instance of the villagers. 12. There is a dying declaration of Malati which has been recorded by PW 10, the Executive Magistrate. He has stated that the Hospital Superintendent Dr. S. Bhattacharjee had examined the patient and declared that she was fit to give a declaration. He has also stated that the dying declaration was recorded in the presence of police officers, hospital employees and other patients. In the examination in chief he has deposed that the patient affixed her left thumb impression on the statement in his presence. He has contradicted himself in the crossexamination when he has stated that the patient had no capacity to endorse the dying declaration with her left thumb impression. He has also admitted that there is no endorsement on the dying declaration to the effect that the same was read over and explained by him to the patient. He has conceded that the Doctor had not issued a certificate stating that the patient was mentally fit and alert to have her statement recorded. 13. The dying declaration of Malati has been exhibited as Exhibit 10 before the Sessions Court. It has been recorded in a question-answer form at 7 p.m. on 19th August, 2001. She has stated that she, her husband and their 3 children were sleeping when a man entered the room. He walked about and poured some liquid on her and her children from a plastic jar, all this while her husband was sleeping. She has identified the man as Mohan, the appellant. However, immediately thereafter she has stated that because it was dark she could not recognise the person who set fire to her. Thus, there is no definite identification of the appellant by the victim in her dying declaration. Surprisingly her statement was recorded under Section 161 of the Cr.P.C. However, there is no indication as to the time and place where the statement was recorded. She has stated therein that she saw Mohan poured cold oil on herself and members of her family and set them ablaze after which he fled away from there. She has spoken about Mohan’s overtures to her. She has also mentioned that this was the reason for an altercation between her husband and Mohan. 14. She has stated therein that she saw Mohan poured cold oil on herself and members of her family and set them ablaze after which he fled away from there. She has spoken about Mohan’s overtures to her. She has also mentioned that this was the reason for an altercation between her husband and Mohan. 14. Considering the FIR and this statement recorded under Section 161 Cr.P.C., in our opinion, no definitive inference can be drawn to the effect that the appellant had committed the crime. Malati, while naming Mohan as the person who set them ablaze, has stated that she could not identify the person who committed the act because it was dark. There are too many discrepancies in the dying declaration for it to be accepted and for a conviction to be based on such a document. Moreover, the Executive Magistrate has stated that the patient had no capacity to endorse the dying declaration with her left thumb impression. The Doctor, who issued the certificate of fitness before the dying declaration was recorded, was examined as PW 15. She is a child specialist. According to her, the victim was in a position to make a statement. The fitness certificate that she had issued has been marked as Exhibit 16. All that has been mentioned in the certificate is “the patient is able to speak”. In her cross-examination PW 15 has admitted that she did not know the general condition of the patient nor whether the patient was under influence of any sedatives as that could be ascertained only from the bed head ticket. Surprisingly the bed head ticket has not been seized. PW 15 has admitted that she had not attended to or treated the victim, and that her only relation with the patient was that she issued a fitness certificate. In the light of such evidence it is difficult to believe the dying declaration of Malati. 15. PW 17, who was the Medical Officer attached to the Raiganj District Hospital when the victims were admitted, has admitted that he advised the administration of saline, campose and pethidin which are sedatives and pain relievers. From the record he has mentioned that the patient was not examined by a Doctor on 19th August, 2001 at 7.30 p.m. which is the time of the recording of the dying declaration. From the record he has mentioned that the patient was not examined by a Doctor on 19th August, 2001 at 7.30 p.m. which is the time of the recording of the dying declaration. It is therefore, impossible to believe that the victim was in a mentally fit condition and alert to have her statement recorded. Moreover, the discrepancies in the dying declaration indicates the state of mind of the victim as she was not able to identify the man who walked into their room and poured liquid on them and set them ablaze with any degree of certainty. 16. Malati’s aunt has been examined as PW 11. She has stated that she was present when Malati’s dying declaration was being recorded. In her cross-examination she has admitted that Musai, i.e., the husband of Malati, has married twice after the death of Malati. 17. The testimony of the Police Officers who conducted the inquest had been recorded as PWs 12 and 13. PW 13 has admitted that he prepared the inquest report and on a preliminary enquiry from the relatives of the deceased it was revealed that the incident had occurred due to an accident because of the kerosene lamp (kupi) placed near the heads of the victims had tilted. 18. Considering the evidence as a whole, in our opinion, it is not possible to accept the case of the prosecution. The FIR has been submitted to the Sub-Divisional Judicial Magistrate after a delay of 5 days. There is no explanation from the prosecution for this delay. When the villagers and family of the victims had mentioned at the inquest that the blaze could have occurred due to the oil lamp tipping over, the Investigation Agency has not bothered to determine whether the deaths were accidental. We have already mentioned the dying declaration is not reliable at all and it would be inappropriate to convict a person on the basis of such a document. There is material on record that there was previous enmity between Malati’s husband Musai and the appellant because of the overtures made by the appellant to Malati. There is also material on record to indicate that Musai had assaulted Malati because of which she and the children had left for her father’s place. There is material on record that there was previous enmity between Malati’s husband Musai and the appellant because of the overtures made by the appellant to Malati. There is also material on record to indicate that Musai had assaulted Malati because of which she and the children had left for her father’s place. Apart from this, Musai himself as stated that it was at the instance of the villagers that he had accused the appellant of having set them ablaze. We have already found that his conduct when the incident occurred was incongruous and questionable. 19. The investigation in the present case has been extremely shoddy. The I.O. who has been examined as PW 14 has stated that he recorded the statement of Malati in the hospital and because of her critical condition he requisitioned the presence of the Executive Magistrate for recording her dying declaration. He has admitted that the dying declaration was made in the presence of PW 1 and PW 11. Therefore, given the mental condition of Malati, it is not improbable that they were able to influence her to mention the name of the appellant. He has admitted that it was because of a mistake that he could not cite the names of the Medical Practitioners or the scribe of the FIR as witnesses in the charge-sheet. In the cross-examination he has admitted that he did not seize the bed head ticket of Malati. He has also admitted that he did not seek the opinion of forensic expert to ascertain the reason for the fire. He has also stated that though the articles in the house caught fire, the house itself was unaffected by it. 20. Thus, taking into consideration the deaths of 4 persons in the blaze it was the duty of the Investigating Agency to be more alert and conscientious and diligent in order to ascertain the real reason for their deaths. It is apparent that the prosecution has failed to prove the involvement of the appellant in the case. In our opinion, therefore, the appellant deserves to be acquitted as there were too many contradictions and discrepancies in the evidence of the prosecution. 21. Accordingly the judgment and order of Sessions Court is set aside. The appellant is acquitted. He shall be set at liberty forthwith if he is not required in any other case.