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IN THE HIGH COURT OF CALCUTTA
Nadira Patherya and Asim Kumar Ray, JJ.
Parimesh Tapali – Petitioner
Versus
State of West Bengal – Respondent
C.R.A. No. 492 of 2008
Decided On : 26-02-2014
DYING DECLARATION - ADMISSIBILITY - DOUBTFUL - CONVICTION SET ASIDE - SECTION 302 IPC - SECTION 498A IPC
Fact of the Case:
The appellant was convicted and sentenced to life imprisonment for the murder of his wife by pouring kerosene oil on her and setting her on fire. The prosecution's case was based on the dying declaration of the victim and the testimony of her father, mother, and brother.
Finding of the Court:
The court found that the dying declaration was doubtful as it was made in the presence of the victim's mother, who had not been present at the time of the incident, and that the victim was not in a position to speak when she was taken to the hospital.
Issues: 1. Whether the dying declaration was admissible in evidence. 2. Whether the evidence of the victim's father, mother, and brother was sufficient to prove the guilt of the appellant.
Ratio Decidendi: The court held that the dying declaration was doubtful and could not be relied upon as it was made in the presence of the victim's mother, who had not been present at the time of the incident, and that the victim was not in a position to speak when she was taken to the hospital. The court also held that the evidence of the victim's father, mother, and brother was not sufficient to prove the guilt of the appellant beyond reasonable doubt.
Final Decision: The court allowed the appeal and set aside the conviction and sentence of the appellant.
Nadira Patherya, J.
1. This appeal has been filed against the judgment and order of conviction dated 27.5.2008 and sentence dated 28.5.2008 passed by the Additional Sessions Judge, Fast Track Court-I, Basirhat in Sessions Trial No. 7(4)/07 arising out of Sessions Case No. 155(12)/06 (G.R. No. 868/06) under Section 302 IPC whereby the appellant was directed to suffer imprisonment for life and to pay a fine of Rs. 5,000/- i.d. to suffer simple imprisonment for 3 months.
2. The case of the prosecution is that the marriage was solemnized between the victim and the appellant according to hindu rites and customs and out of their wedlock two female and one male child was born. The appellant was in the habit of taking liquor and on returning home under its influence the appellant would physically assault the victim. On 29th July, 2006 at about midnight the appellant poured kerosene oil on the victim's body and set her on fire which resulted in the victim sustaining 100% burn injury. The victim was admitted to the Basirhat hospital by her mother-in-law and brother-in-law and ultimately expired on 4th August, 2006. The incident occurred on 29th July, 2006. A complaint was lodged on 1st August, 2006 with the Basirhat Police Station by the father of the victim girl and a case under Section 498A IPC was registered and investigation initiated. During the pendency of the investigation the victim died and the charge under Section 302 IPC was included.
3. On completion of investigation charge under Sections 498A and 302 IPC was framed. The case was committed to the Additional Sessions Judge, Fast Track Court-I, Basirhat for disposal and the charge was read over and explained to the appellant who pleaded "not guilty" and claimed to be tried.
4. In course of trial 18 witnesses were examined by the prosecution and documents exhibited. On considering the evidence the order of conviction and sentence was passed on 27th May, 2008 and 28th May, 2008 and the appellant sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- i.d. to suffer S.I. for 2 months under Section 302 IPC. For the charge under Section 498A IPC the appellant was acquitted.
5. Being aggrieved by the said order of conviction and sentence this appeal has been filed.
6. Counsel for the appellant submits that the sentence has been passed on the basis of the dying declaration. The dying declaration was recorded by PW 17 (S.I) when the victim was admitted to the female surgical ward and no permission was taken to enter the said ward by PW 17 (S.I). No permission was also taken for recording the statement of the victim from the Superintendent of the hospital. It is not clear when PW 17 (S.I) entered and left the said hospital. The entry admittedly was not proper as he could not enter the female surgical ward. The evidence of PW 17 (S.I) is an improvement as it has been stated by PW 18 (I.O) that PW 17 (S.I) did not say to him that he set out from the police station to record the dying declaration of the victim girl. Therefore to that extent the evidence of PW 17 (S.I) is an improvement and it is doubtful whether PW 17 (S.I) recorded the dying declaration. Exhibits 10 and 13 are extracts of the G.D. entry. These extracts are independent and not taken from the G.D. book. No G.D. book was produced. No time is also mentioned therein. In the dying declaration no LTI of the victim girl has been taken and there is no explanation in respect thereof too. The FIR was lodged on 1st August, 2006 by PW 5 (father). In his evidence PW 5 (father) has stated that it was the victim girl who told him of the incident the following day (i.e. 30.7.2006) but the dying declaration was made on 31st July, 2006 in the presence of PW 6 (mother). PW 5 (father) did not state in the FIR filed on 1.8.2006 that he was told of the incident by the victim girl. At the time of inquest PW 7 (brother) was present but he also did not say anything about the involvement of the appellant although he claims that the
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