Calcutta High Court (Appellete Side)
Avijit Chatterjee @ Abhijit Chatterjee … vs The State Of West Bengal on 14 August, 2025
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
2025:CHC-AS:1559-DB
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA 512 of 2017
Avijit Chatterjee @ Abhijit Chatterjee @ Ramu
Vs.
The State of West Bengal
Before: The Hon'ble Justice Rajarshi Bharadwaj
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellant : Mr. Soubhik Mitter, Adv.
Mr. Avishek Sinha, Adv.
Ms. Madhusree Banerjee, Adv.
For the State : Mr. Debashish Ray, Ld. P.P
Mr. P.P. Das, Adv.
Ms. Manasi Ray, Adv.
CAV On : 04.07.2025
Judgment On : 14.08.2025
Apurba Sinha Ray, J. :-
1.
The instant appeal has been preferred by the appellant against the
judgment and order dated 31.07.2017 passed by the Learned Additional
Sessions Judge, FTC-I, Sealdah, South 24 Parganas in Sessions Trial No.
1(1)2014 arising out of Sessions Case No. 5(7) of 2013 under Sections
302/34 of I.P.C on the grounds, inter alia, that the Learned Trial Judge did
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not consider the evidences of the prosecution witnesses in its proper
perspective and/or has failed to take into account the evidence of the vital
witnesses before convicting the appellant under Sections 302/34 of I.P.C.
2. The learned counsel Mr. Mitter has submitted that conviction of the
appellant was pronounced only on the basis of a dying declaration of the
deceased. In fact that is the only evidence in support of the prosecution
case. However, there are certain essential rules to accept a dying declaration
as a coherent statement of the victim. First, whether such a dying
declaration was made voluntarily. Secondly, the declarant was conscious
and mentally alert to give a coherent dying declaration. The declarant must
be aware that he is about to die. Moreover, the statement must be
consistent with other evidence in the case. The statement must not have
been made through tutoring or prompting. Mr. Mitter has also submitted
that in cases of multiple dying declarations, the court should see that they
are consistent with each other. A dying declaration gains more weight when
it is recorded before a Magistrate.
3. According to Mr. Mitter, in the case in hand, the deceased evidently
lacked physical and mental competence to give a coherent statement since
he suffered 98% burn injury all over his body. There is no certificate from
the doctor that the deceased was mentally alert. There was no application
made by the I.O. to the Learned Additional Chief Judicial Magistrate
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Sealdah or before the Superintendent of NRS Medical College for recording
the dying declaration.
4. It is also submitted by the learned counsel that the relevant dying
declaration of the deceased is not corroborated by substantial evidence of
any other prosecution witness. Even the wife and son of the deceased did
not support the prosecution case. According to them, the deceased was a
habitual drunkard and was unconscious during the relevant time.
Therefore, it is unbelievable that the deceased can give a coherent dying
declaration. It is also pointed out by Mr. Mitter that the earliest declaration
does not name any assailant though the appellant was known as the
landlord. In the last declaration, allegedly recorded by the police officer, all
the names of assailants were transpired. It is a trite law that in case of
multiple dying declarations, all must be consistent to one another. In this
case all the declarations allegedly made at different times were
contradictory. PWs 14, 15 the two police constables who were on patrolling
duty reached the place of occurrence at the earliest and arranged for shifting
the patient to the hospital. Curiously enough they had not spoken a single
line about any dying declaration given by the deceased. At 10:48pm, the
doctor noted in the hospital records that he had been inflicted burn injury
by pouring inflammable oil by “some persons”. At 11pm the victim
incriminated Appellant and others when the police recorded it. Prior to the
incident there is no evidence whatsoever that any witness saw the appellant
and the other co-accused were carrying the kerosene jar. Admittedly the
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place of occurrence remains as a busy thoroughfare in the heart of the city.
Inspite of the alleged incident occurring at 8:30 pm, not a single witness had
seen the incident. There is no evidence whatsoever about what happened
immediately after the incident occurred rather it is elicited from the
deposition of prosecution witnesses that after the victim suffered burn
injury, the appellant actually accompanied the deceased and his family
members to the hospital and was later on apprehended from his residence.
5. It is also contended by the appellant that the PW7, the wife of the
deceased in her cross-examination has admitted that the present appellant
accompanied them to the hospital which showcases his bonafide intention
and absence of guilty mind. In her cross-examination PW7 acknowledged
that the deceased was a habitual drunkard and owing to the same, various
altercations took place between the deceased and her. In the post mortem
examination the doctor being the PW13 reported that the stomach of the
deceased was found to contain 200 gms of dark fluid which was of alcoholic
nature. In her further cross-examination the PW7 stated that the deceased
even threatened his sons that he would commit suicide if needed. Even a
few months prior to the incident the deceased tried to commit suicide by
pouring kerosene oil on his body.
6. The learned counsel Mr. Mitter has also submitted that the learned
Judge overlooked the specific averment by PW9 a neighbor, being an eye
witness to the incident, deposed that he had seen the deceased coming
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towards his spot after setting himself on fire and thereafter jumped into the
water body. According to him, such deposition of PW9 is substantive
evidence and can be taken into consideration as the same was made before
he was declared hostile.
7. It is also contended that no inflammable petroleum product was
detected in the contents of exhibit – B and C which relates to the wearing
apparels of the deceased. The PWs 5, 6, 9, 10 and 18 supported the event of
suicide as they contended that the deceased being intoxicated set fire on
himself and succumbed to the burn injury. The seizure was made at the
police station and contents were never read to PW4 and PW6 who were
shown to be the witness to the seizure of the kerosene jar. The star witness
namely the wife (PW7) and two sons of the deceased PW8 and PW11 did not
support the prosecution story since they deposed that there was no dispute
with the appellant who was their landlord. According to the written
complaint, one phuchka lit the match and put fire on the deceased and he
was never apprehended. The learned counsel further submitted that framing
of charge of the appellant alone under Section 302/34 IPC is bad in law. The
kerosene jar was seized from the place of occurrence which is accessible to
all and further arrest of the appellant from his residence proves the
innocence of the appellant.
8. It is settled law that where a dying declaration is suspicious it should
not be acted upon without corroborative evidence. In this regard, the learned
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counsel Mr. Mitter has relied upon the case of State of Rajasthan Vs.
Shravan Ram and Anr. reported in (2013) 12 SCC 255, para 12,13,16,
18-24 and Uttam Vs. State of Maharashtra, reported in (2022) 8 SCC
576, para 14, 15, 18, 19, 22, 24, 25, 28, 38 – 40. According to Mr.
Mitter, it has been time and again held by the Hon‟ble Apex Court that
common intention implies acting in concert and existence of a pre-arranged
plan and pre-supposes prior concert. Therefore, there must be prior meeting
of minds. In this regard, he has relied on Ramashish Yadav and Ors. Vs.
State of Bihar, reported in (1999) 8 SCC 555 para 3 and also Arun Vs.
State by Inspector of Police, Tamil Nadu reported in (2008) 15 SCC 501
paragraph 23 to 30, 35 and 39. Mr. Mitter has concluded his argument by
saying that as the deceased committed suicide by pouring kerosene oil and
set himself on fire on the fateful night when he was in an inebriated
condition under the influence of alcohol, the present appellant being falsely
implicated in this case should be acquitted from the charge.
9. The learned counsel Mr. Das, appearing for the State, has submitted
that the prosecution has been able to prove the case against the present
appellant beyond all sorts of reasonable doubt. According to him, this case
was started with a written complaint dictated by the victim and reduced into
writing by the investigating officer on the date of incident i.e. 21.01.2013
wherein not only the name of the appellant was mentioned but a vivid
description was given as to how he was set on fire after pouring kerosene oil
by the appellant and two others. Mr. Das has further submitted that the
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motive of the commission of the offence was that the appellant being the
landlord asked the deceased to vacate his house but as the victim did not do
so, such incident occurred. In the earliest opportunity, the victim disclosed
the name of the appellant as one of his assailants. At the time of admission
in the hospital, non-mentioning of the assailant’s name is not very
important. The victim clearly stated that he was set on fire by some persons
and that is sufficient. Even the doctor recorded in the medical document
that the dying declaration of the victim was taken by the duty officer. Dr.
Kinkar Kumar Bhowmick who has been examined as PW12 has deposed
that he examined the victim who reiterated the name of the appellant as one
of his assailants and also mentioned the mode and manner in which he
suffered burn injury. Such statements are consistent with the version of the
victim in the FIR. The doctor has also deposed that the patient was
conscious and his pulse was 80 per minute. There were no anomalies
detected in the chest, heart and lung. The PW13 Dr. Molly Banerjee who
conducted the post mortem report opined that death was due to the effects
of burn injuries.
10. Mr. Das, has also submitted that it is well settled that if a charge is
framed against several persons for commission of offences along with the
common intention under Section 34 of the IPC in the absence of some other
accused, the person/persons who is/are actually facing the trial can be
convicted under Section 302/34 of IPC. In this case all the accused persons
including the present accused participated and acted in furtherance to the
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common intention to kill the victim. Therefore, from the evidence of all the
materials on record including the dying declaration of the victim it was
clearly established that there was a prior concert among accused in
committing the murder of the deceased. The other two accused persons were
absconding immediately after the incident and could not be arrested till date
despite raids by the police authorities. There is no reason to interfere with
the judgment of conviction and sentence since it is clear that the present
appellant along with others in furtherance of their common intention had
committed the offence of murder of one Sanjay Halder and as the charges
have been well established against the present appellant, the instant appeal
should be dismissed.
11. We have considered the rival submissions of the learned counsel and
also for the State. We have also taken into consideration the relevant judicial
decisions submitted on behalf of the appellants. According to the appellant
the case is of self-immolation of the deceased due to frustration, quarrel and
unhappiness in his house since he was addicted to liquor. The deposition of
the wife and sons of the deceased, according to the appellant, have
supported such a plea of the defence. The post mortem report shows that
the deceased had 200 gms of alcohol in his stomach. There are several
prosecution witnesses who supported the defence case that the deceased
committed suicide by pouring kerosene oil on his body due to family
dispute. On the other hand the State has denied such submission of the
defence counsel on the ground that dying declaration of the deceased
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recorded by the concerned investigating officer was free from blemishes and
was rightly relied upon by the learned trial judge in convicting the appellant
who along with others committed such ghastly manslaughter.
12. Brushing aside the unnecessary details, this court has hastened to
conclude that not only the wife and sons of the deceased had deposed that
they had good relations with appellant being their landlord but also other
local witnesses refused to support the prosecution case in this regard.
According to defence, the dying declarations are not corroborated with
substantial pieces of evidence and therefore cannot be relied upon.
13. After considering the relevant judicial decisions it appears to us that
there is no hard and fast rule that a dying declaration of a victim cannot be
relied upon without corroboration. In fact, the settled principles of law is
that a dying declaration which is consistent, free from blemishes can be
relied upon without further corroboration. Moreover, it is a duty cast upon
the court to ascertain the correctness, authenticity, mental alertness and
fitness of the victim at the time of recording his dying declaration from the
recorded evidence.
14. In State of Rajasthan Vs. Shravan Ram & Anr. Reported in (2013)
12 SCC 255 the Hon‟ble Supreme Court has been pleased to discuss the
principles of accepting a dying declaration as a vital piece of evidence. In
this case, the Hon‟ble Court quoted the observation of an earlier Bench in
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connection with Sharda Vs. State of Rajasthan reported in (2010) 2 SCC
85. In the said judicial decision it has been laid down as hereunder:-
“23. In Sharda v. State of Rajasthan this Court
has dealt with three dying declarations. Noticing
inconsistencies between the dying declarations,
this Court set aside the sentence ordered by the
Sessions Judge as well as the High Court and
held as follows: (SCC p. 90, para 25)“25. Though a dying declaration is entitled
and is still recognised by law to be given
greater weightage but it has also to be kept
in mind that the accused had no chance of
cross-examination. Such a right of cross-
examination is essential for eliciting the
truth as an obligation of both. This is the
reason, generally, the court insists that the
dying declaration should be such which
inspires full confidence of the court of its
correctness. The court has to be on guard
that such statement of the deceased was
not as a result of either tutoring, prompting
or product of imagination. The court must
be further satisfied that the deceased was
in a fit state of mind after a clear
opportunity to observe and identify the
assailants. Once the court is satisfied that
the aforesaid requirement and also to the
fact that declaration was true and
voluntary, undoubtedly, it can base its
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conviction without any further
corroboration.””
15. In Uttam Vs. State of Maharashtra reported in (2022) 8 SCC 576
the Hon‟ble Supreme Court has discussed the case law reported in (1992) 2
SCC 474 Paniben Vs. State of Gujarat. In the aforesaid decision several
guidelines have been given and they are quoted herein below:-
“18. ……(i) There is neither rule of law nor of
prudence that dying declaration cannot be acted
upon without corroboration. (Munnu Raja v.
State of M.P reported in (1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (State of
UP v. Ram Sagar Yadav reported in (1985) 1
SCC 552; Ramawati Devi v. State of Bihar
reported in (1983) 1 SCC 211)
(iii) This Court has to scrutinise the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had
opportunity to observe and identify the
assailants and was in a fit state to make the
declaration. (K. Ramachandra Reddy v. Public
Prosecutor reported in (1976) 3 SCC 618)
(iv) Where dying declaration is suspicious it
should not be acted upon without corroborative
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evidence. (Rasheed Beg v. State of M.P. reported
in (1974) 4 SCC 264)
(v) Where the deceased was unconscious and
could never make any dying declaration the
evidence with regard to it is to be rejected. (Kake
Singh v. State of M.P reported in (1981) Supp
SCC 25)
(vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction,
(Ram Manorath v. State of U.P. reported in
(1981) 2 SCC 654)
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not
to be rejected. (State of Maharashtra v.
Krishnamurti Laxmipati Naidu reported in (1980)
Supp SCC 455)
(viii) Equally, merely because it is a brief
statement, it is not to be discarded. On the
contrary, the shortness of the statement itself
guarantees truth. (Surajdeo Ojha v. State of
Bihar reported in (1980) Supp SCC 769)
(ix) Normally the court in order to satisfy
whether the deceased was in a fit mental
condition to make the dying declaration look up
to the medical opinion. But where the
eyewitness has said that the deceased was in a
fit and conscious state to make this dying
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declaration, the medical opinion cannot prevail.
(Nanhau Ram v. State of M.P reported in (1988)
Supp SCC 152)
(x) Where the prosecution version differs from
the version as given in the dying declaration, the
said declaration cannot be acted upon. (State of
U.P. V. Madan Mohan reported in (1989) 3 SCC
390)”.
16. In paragraph 24, the Hon‟ble Apex Court in the above decision
observed as follows:-
“24. The principles governing the circumstances
where the courts can accept a dying declaration
without corroboration, have been dealt with
extensively in Khushal Rao V. State of Bombay ,
AIR 1958 SC 22 and for ready reference,
reproduced as under: (AIR pp. 28-29, para 16)“16. On a review of the relevant provisions
of the Evidence Act and of the decided
cases in the different High Courts in India
and in this Court, we have come to the
conclusion, in agreement with the opinion of
the Full Bench of the Madras High Court
(Guruswamy Tevar, In re, 1939 SCC
OnLine Mad 411), aforesaid, (1) that it
cannot be laid down as an absolute rule of
law that a dying declaration cannot form
the sole basis of conviction unless it is
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corroborated; (2) that each case must be
determined on its own facts keeping in
view the circumstances in which the dying
declaration was made; (3) that it cannot be
laid down as a general proposition that a
dying declaration is a weaker kind of
evidence than other pieces of evidence; (4)
that a dying declaration stands on the
same footing as another piece of evidence
and has to be judged in the light of
surrounding circumstances and with
reference to the principles governing the
weighing of evidence; (5) that a dying
declaration which has been recorded by a
competent Magistrate in the proper manner,
that is to say, in the form of questions and
answers, and, as far as practicable, in the
words of the maker of the declaration,
stands on a much higher footing than a
dying declaration which depends upon oral
testimony which may suffer from all the
infirmities of human memory and human
character, and (6) that in order to test the
reliability of a dying declaration, the court
has to keep in view, the circumstances like
the opportunity of the dying man for
observation, for example, whether there
was sufficient light if the crime was
committed at night, whether the capacity of
the man to remember the facts stated, had
not been impaired at the time he was
making the statement, by circumstances
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beyond his control; that the statement has
been consistent throughout if he had
several opportunities of making a dying
declaration apart from the official record of
it; and that the statement had been made
at the earliest opportunity and was not the
result of tutoring by interested parties.”
17. Therefore, even if there are multiple dying declarations the court
should consider whether they are consistent with each other and if they are
inconsistent then the rule of prudence suggests that the court should ask
for corroboration. Otherwise, if the dying declarations themselves, due to
their coherence and unblemished nature, can inspire confidence in the
contents of the said declarations, the same can be relied upon by the court
without any further corroboration.
18. In this case, it appears that the most vital witnesses namely, Jharna
Halder, wife of the deceased being PW7, and Suvojite Halder, the youngest
son of the deceased being PW8 have been declared hostile. The defence has
relied upon their version in cross-examination. In her cross-examination
PW7, Jharna Halder has stated that her husband was a habitual drunkard
and over his such habit, altercations used to take place often between
herself and her husband. Her sons, having grown up, also used to scold her
husband. She has also deposed in her cross-examination that her husband
used to threaten her sons that he would commit suicide if so scolded.
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19. The PW8 Suvojite, who was declared hostile, was not cross-examined
by the defence. Now let us see whether the submission of the defence that
the deceased committed suicide due to his habit of drinking and consequent
family resentment is reliable or not. It is true that in the post mortem report
the deceased’s stomach contained liquor of alcoholic nature. But that does
not mean that due to his consumption of such liquor on the fateful night
there was a quarrel between the members of his family and himself.
However, the examination-in-chief of Jharna Halder is to be looked into to
ascertain whether there was any scope of quarrel between Jharna Halder
and the deceased at the relevant point of time. She has categorically stated
that the incident took place on 21.01.2013. She was at her work place at
Oriya Bagan which is about half an hours‟ walk from her house. After
returning to her house at about 8:45 p.m. she found her husband was
standing in a pond in front of her house. He was burnt. She took her
husband to hospital. Her husband was not conscious at that time. This goes
to show that when the incident of pouring kerosene oil on the body of the
deceased, either by himself or by the present appellant along with others
took place, the PW7 was not present. In other words, before reaching her
house on the fateful night, the PW7 found that the incident already
occurred. Therefore there was no scope of quarrel between herself and the
deceased. Now let us turn to the deposition of PW8 Suvojite Halder being the
younger son of the deceased. According to PW8 his father used to sell toys at
the footpath near B. Sarkar Bazar. He used to assist his father in his
business. After the demise of his father, he is carrying on that business. His
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elder brother works in a shoe shop and mother works as a caretaker in a
house. On 21.01.2013 at about 8:45 p.m. he got information that his father
was lying in a pond. He became tense and after wrapping his business he
rushed to his house. Arriving at the place of occurrence he saw that his
father was standing in the pond in knee deep water in a fully burnt
condition. He could not talk with his father as he was unconscious. This
also goes to show that there was no scope of quarrel between the deceased
and PW8 since PW8 was not present at the place of occurrence when the
incident occurred. He was one of the post occurrence witnesses. Therefore,
there was no scope either for the PW7 or PW8 to scold the deceased for
consuming liquor and as a result the deceased committed suicide. The PW7
and PW8 appear to be won over witnesses and, therefore, this court cannot
give much reliance on their deposition not only because they had turned
hostile but also due to the fact that they were not present at the relevant
time on the fateful night when the incident occurred.
20. The defence has categorically stated that the deposition of PW7 and
PW8 disclosed that the victim was unconscious at the relevant point of time
and therefore, the victim‟s alleged dying declaration is nothing but a
creature of the investigating officer in connivance with the doctor. I have
already mentioned that the PW7 and PW8 were won over witnesses and
therefore, it is very difficult to rely upon the deposition of PW7 and PW8.
Moreover, it appears to me that the deposition of PW7 and PW8 are
internally weak and cannot be relied upon. The PW7 and PW8 claimed that
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the victim was unconscious when they found him in the pond. It is
categorical statements of PW7 and PW8 that when they reached the place of
occurrence they found that the deceased was standing in the pond and he
was completely burnt. It is further deposed by the PW8 that he found his
father was standing in the pond in knee deep water in a fully burnt
condition. He could not talk with his father as he was unconscious. The
defence has relied heavily upon these statements of the witnesses being PW7
and PW8. But in our view if a person were unconscious he cannot remain
standing in the pond. This is unbelievable and accordingly, cannot be
acceptable.
21. The defence also took the plea that from the deposition of PW7, wife
of the deceased it is found that the present appellant went to the hospital for
the treatment of the deceased. He was subsequently arrested by the police
from his house. This, according to the learned defence counsel, shows the
innocence of the appellant. Had he committed such an offence he would not
have accompanied the PW7 and PW8 to the hospital for the treatment of the
victim. This plea also cannot be acceptable since there is no documentary
evidence showing that the appellant accompanied the victim‟s relatives to
the hospital at the relevant point of time. Even for the sake of argument, if it
is considered that he accompanied the victim‟s relatives to the hospital that
does not prove his innocence since in many a cases it is found that a person
who attended the funeral of a deceased suffering an unnatural death, was
turned out to be the principal accused in the relevant matter subsequently.
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Therefore, mere presence of the appellant along with the victim‟s relatives in
the hospital at the relevant point of time does not ipso facto prove the
innocence of the appellant.
22. Therefore, it is rightly submitted by both the counsel of the parties
that the dying declarations are the actual evidence in this case and the fate
of the appellant is dependent upon the fact how such multiple dying
declarations can be construed by the court.
23. According to learned counsel Mr. Mitter there are at least two dying
declarations in this case. In the first dying declaration before the doctor who
recorded the same in the bed head ticket, the names of the assailants were
not mentioned but in the last dying declaration allegedly by the police officer
the names of the assailants of the deceased were transpired.
24. Now let us examine the two dying declarations of the deceased to
ascertain whether there is any incongruity or inconsistency between the said
declarations. The first dying declaration was recorded by Dr. Joyanta Biswas
on 21.01.2013 at 10:46 P.M. which has been marked as exhibit-14. It has
been recorded as follows:-
“Patient had been admitted directly from ER through ER Slip by on duty
SROD at about 10:30 p.m. on 21.01.2013.
History taken as per patient‟s own statement.
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The patient had been inflicted burn injuries by pouring inflammable oil by
some other persons as a homicidal attempt.
Date/time of incident:- 21/01/2013 at about 8:30 p.m.,
Place of Injury :- Thakurbagan Beliaghata, P.S.
O/E:- Conscious/cooperative /oriented to time/place and person.
P-100/per min feeble,
BP 100/70….
External Injury:- Burn injury of approximately 98% of the total body surface
area of varying depth including face and genital area.”
25. This first dying declaration shows that the patient had categorically
stated that he had suffered burn injury as some persons poured
inflammable oil upon him as a homicidal attempt. It is true that there is no
record of names of the persons who committed such offence but it appears
that the patient had clearly stated that there were some persons who poured
the inflammable oil upon him. Such history was taken from the patient’s
own statement and the doctor had recorded that at the time of giving such
statement the victim was conscious, cooperative, oriented to time, place and
person. Therefore, the physical and mental condition of the patient was
assessed by doctor Joyanta Biswas. It appears from the record that Dr.
Joyanta Biswas has been examined as PW21 and he has categorically
proved such a dying declaration before the court. Now, it appears to me that
the said dying declaration was in tune with the prosecution case apart from
disclosure of the names of the assailants. It is clear from the said dying
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declaration that it was alleged by the victim that there were some persons
who committed such burn injuries on the person of the victim by pouring
inflammable oil. Apart from not naming the assailants the entire dying
declaration recorded on the bed head ticked on 21.01.2013 at 10:45 p.m.
was in conformity with the prosecution allegations.
26. Now let us examine the second dying declaration of the deceased
Sanjoy Halder recorded by SI R.P. Maity on 21.01.2013. The said dying
declaration shows that the victim was asked some preliminary questions
and answers are recorded as hereunder:-
“My name is Sanjoy Halder
My father‟s name is Late Kundupada Halder
My age is 46 years at present residing at 33/1A/11 Barwaritala Road, P.S.
Beliaghata, Kolkata – 700010.
I have a gift item shop in footpath at B. Sarkar Bazar near Phoolbagan, Kali
Mandir”
27. After this initial statement, the I.O. has recorded further statement of
the victim:-
“Today I came back home at about 8:30 p.m. from my shop and after
returning, I found that some members of Bright Athletic Club were
consuming liquor and ganja in front of my house. The names of those
persons are Madhu, Phuchka and Avijit Chatterjee @ Ramu. At my protest
an altercation took place between us. Thereafter, Phuchka, Madhu and
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Avijit forcibly poured kerosene oil on my body and head. Thereafter,
Phuchka lit a match stick and threw it to my body. As a result fire caught
upon me and my whole body was burnt. Finding me in this condition they
fled away. Being unable to bear the severe burning sensation I jumped in
the pond in front of my house. Within a few minutes police came to the spot
and recovered me from the pond and thereafter being accompanied by my
wife and son Suvojite Halder the police brought me to NRS Hospital for
treatment. My landlord Ramu @ Avijit Chatterjee repeatedly asked me to
vacate the tenanted room but as I did not agree, he tried to cause my death
by setting me on fire with the help of Phuchka and Madhu”.
28. This has been marked as exhibit-13. The said dying declaration shows
that the same was recorded by R.P. Maity and thereafter the same was read
over and explained to the victim and further the same was admitted to be
correct by the victim. There was a certificate of Dr. Joyanta Biswas to the
effect that the statement was recorded in his presence at about 11:00 p.m.
on 21/01/2013. The LTI was not marked as an exhibit due to objections.
However, it is found that the words „LTI of Sanjoy Halder‟ was mentioned by
the side of the said LTI. It is true by whose pen the words “LTI of Sanjoy
Halder” were written, has not been mentioned.
29. Now let us consider whether the second dying declaration is in
conformity with the first dying declaration or not. It goes to show that both
the dying declarations have categorically pointed out that Sanjoy Halder, the
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victim, did not commit suicide by pouring kerosene oil by himself. On the
other hand, they indicated that there were persons “who poured
inflammable oil on his body and thereafter set him on fire”. In the first
declaration the names of the assailants were not there but in the second
declaration not only specific names but also the manner in which such
offences were committed were vividly described.
30. To rely upon a dying declaration, the duty of the court is to ascertain
whether the victim was mentally fit and alert to make such a statement. In
the first dying declaration the doctor has categorically mentioned that the
patient was conscious and oriented to time, place and person. This goes to
show that at the relevant time the victim was mentally alert. The second
dying declaration was taken immediately after recording of the first FIR in
presence of the said Dr. Joyanta Biswas. It is true that there is no certificate
in the second declaration that the victim was conscious and mentally alert
to make such statement but as the said doctor a few minutes back in the
medical record noted the condition of the patient regarding his mental
alertness, non-recording of the same mental condition of the maker of the
dying declaration once again in the second declaration, we think, that
cannot be treated as serious lacuna in the prosecution case. Apart from
that, the court has a duty to ascertain from the dying declaration itself
whether or not the patient was conscious and alert to make such a
statement. If we go through the initial statement of the victim in his second
dying declaration we shall find that he correctly uttered his name and
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father‟s name. He has also correctly mentioned his age. Further, he has also
correctly mentioned the residential address along with pin code. This goes to
show that he was mentally alert to make such a statement. To fortify such
observation we again peruse the said dying declaration once again. He has
categorically stated the location of his gift shop in the footpath of B. Sarkar
Bazar near Phoolbagan, Kali Mandir. He has not only mentioned that he has
a gift shop, he has specifically mentioned the area and address where his
gift shop was located. From such initial statements we find that the victim
was mentally alert to make such statements.
31. It is also found that after recording such statements by the police
officer he had read over and explained the same to the victim, and the victim
admitted that the same was correctly recorded. Moreover, the said statement
was recorded in presence of the doctor who examined the victim and
recorded the victim‟s mental alertness in the hospital records immediately
before the recording of the second dying declaration and the said doctor also
supported the second dying declaration before the court as a witness. Now it
is true that one LTI was taken in the said second dying declaration but the
same was not marked as an exhibit since there is no signature of the
identifier of the alleged LTI of the victim and for that reason alleged LTI of
the victim was not marked as exhibit. However, in his deposition the I.O. SI
R.P. Maity has categorically stated that the words „LTI‟ of Sanjoy Halder by
the side of the alleged LTI of the victim in the exhibit-13 was written by him.
As he has stated on oath that he was the identifier of the LTI of the victim in
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the exhibit-13 we do not find any legal predicament to accept the said LTI as
the LTI of the victim Sanjoy Halder.
32. Therefore, after making a comparison of two dying declarations as
stated above we do not find any internal incongruity between their contents.
However, the defence has submitted that no other local people have
supported the prosecution case.
33. The defence has stated though all other local witnesses turned hostile,
one of the witness namely PW9, Kalachand Das @ Chotka has deposed that
he saw the victim to commit suicide. After scanning his deposition, we do
not find any whisper in his deposition that he saw the victim to pour
kerosene oil on his body and thereafter to light a match stick. Such
deposition is also not acceptable and reliable since if the victim himself
poured kerosene oil and lit a match stick to commit suicide, then, in all
probability, there would have been not only the kerosene jar but also the
match box. Had the victim poured kerosene oil on his body then after
lighting the match he will certainly leave the match box or the lighter on the
spot since in that case he would not have the opportunity to keep the said
match box or lighter in his pocket, but had the victim was set ablaze by
other persons they had the opportunity to flee away with such match box or
lighter by which the victim was set ablaze. In fact, though the kerosene jar
was found in the vicinity of the place of occurrence, neither any match box
nor any lighter was found in the place of occurrence signifying that the
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accused who ignited the body of the victim left with such a match box or
lighter. Therefore, in view of such deposition of the prosecution witness as
stated above, the defence plea is not acceptable.
34. It is alleged that the concerned police personnel being the I.O. did not
make any prayer to the Learned Additional Chief Judicial Magistrate or any
other Magistrate for deputing any Magistrate to record the dying declaration
of the victim. Therefore, the police have shown excessive enthusiasm to
record the dying declaration by themselves. From the record it is revealed
that the victims sustained 98% burn injury and there was every possibility
for the deceased to collapse. In such a situation, if the concerned police
personnel recorded the dying declaration in anticipation of the death of the
victim, we do not find any illegality or irregularity in doing the same. It is
also found from the record that the victim died within 17 hours of his
admission into the hospital and therefore the I.O. has rightly recorded such
dying declarations in compliance with the relevant Regulation under Police
Regulation of Calcutta 1968:-
“72. Dying declaration. [S. 3, Bengal Act II
of 1866, S. 9, Bengal Act IV of 1866.] –
(a) If it is not possible to have the statement of a
person whose evidence is required and who
is in imminent danger of death recorded by a
Magistrate and it becomes necessary for
some other person to record a dying
272025:CHC-AS:1559-DB
declaration, this shall be done, whenever
possible, in the presence of the accused or of
attesting witnesses. A dying declaration
made to a police officer shall be signed by the
person making it.
(b) If a seriously injured person, not in imminent
danger of death, is sent to hospital the
investigating officer shall warn the medical
officer about having the persons’ statement
recorded by a Magistrate, should be the
necessity for such a course arise.
(c) In case of doubt whether action under clause
(a) or under clause (b) should be taken the
investigating officer shall act in accordance
with clause (a)”
35. We have also taken into consideration the judicial decision of
Ramashish Yadav and Ors. (supra) wherein it has been held by the Hon‟ble
Apex Court that two accused persons came and caught hold of the deceased
where after other two accused came with gandasa and gave blows, it cannot
be said that the accused who had held the deceased shared any common
intention with the accused who inflicted the blows which resulted in the
death of the deceased. In our opinion, the above case law does not apply to
our case since if a person holds the victim tightly and another person
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assaulted the victim by a blunt instrument it can be said that the former
might not have the intention of killing the victim. But in our case, it is seen
that the appellant and other absconding accused poured kerosene oil and
another absconding accused Phuchka lit the fire and set the deceased
ablaze. Law does not prescribe the time required for meeting the minds of
the culprits. It may be one month or it may be a minute. Law, therefore,
does not prescribe any time period. When two persons poured kerosene oil
on the body of a person it is presumed that they had already prepared their
mind to set the victim ablaze because pouring of kerosene oil only on a
human body does not kill the victim unless fire is set on the body which is
drenched with kerosene oil. In this case, when the appellant and other
absconding accused poured kerosene oil and thereafter another accused lit
the fire, we consider that pouring of kerosene oil by two accused and to
throw a lighted match stick towards such body of the victim which was
drenched with kerosene oil were part of the same transaction. The appellant
along with others had the requisite meeting of minds and therefore
provisions of Section 34 of IPC relating to common intention has been
rightly framed against the appellant and he has been rightly convicted in
this regard.
36. It is true that a kerosene jar was recovered from the public place and
the seizure list witnesses have stated that their signatures were obtained in
the police station compound. From the medical document and also from the
dying declaration it has come to light that the victim died out of burn
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injuries which were ante mortem in nature. The PW4 Ajoy Kundu was
declared hostile and another seizure list witness was also a hostile witness.
However, the said seizure of kerosene jar from public places has been
doubted from the side of the defence. Even the seizure list was not proved
beyond reasonable doubt but from the dying declaration and medical papers
it is found that the victim died of burn injuries and the same was done by
pouring kerosene oil. Even, if such seizure was not proved beyond
reasonable doubt, from the conspectus of the circumstances, we find that
the prosecution case does not fail. The chemical examiner‟s report was also
doubted from the side of the defence but it appears that the incident
occurred on 21.01.2013 and the chemical examiner received the article on
05.02.2013 and he examined the articles on 16.07.2014. Though, the
relevant chemical examiner‟s report has disclosed that there was kerosene
oil in the relevant jar but he did not find the element of kerosene or
petroleum in any other articles. Such observation is acceptable since such
examination took place almost one and half years after the incident.
37. Considering all aspects of the matter, we find that the relevant
judgment of conviction and sentence cannot be interfered with and the
prosecution had been able to prove the case against the present appellant
beyond all sorts of reasonable doubt and accordingly the impugned
judgment and order dated 31.07.2017 passed by the Learned Additional
Sessions Judge FTC-I, Sealdah, South 24 Parganas in Sessions Trial No.
1(1)2014 arising out of Sessions case No. 5(7) of 2013 under Sections
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302/34 of I.P.C is hereby affirmed. The present appeal thus fails. No order
as to costs. The trial court record be sent to the concerned court
immediately.
38. Accordingly, CRA 512 of 2017 is disposed of.
39. Urgent photostat certified copies of this Judgment, if applied for, be
supplied to the parties on compliance of all necessary formalities.
I Agree
(RAJARSHI BHARADWAJ, J.)
(APURBA SINHA RAY, J.)