PARIMAL DAS Vs. STATE OF TRIPURA
LAWS(GAU)-2020-7-88
HIGH COURT OF GAUHATI
Decided on July 07,2020

Parimal Das Appellant
VERSUS
STATE OF TRIPURA Respondents




JUDGEMENT

ARINDAM LODH,J. - (1.)The convict, Parimal Das has preferred the instant appeal questioning the legality and propriety of the judgment and order dated 31.3.2018, passed by the learned Additional Sessions Judge, West Tripura, Agartala, in case No. S.T. (T-1) 120 of 2012, whereby and whereunder the appellant has been convicted under Section 302 of IPC and thereby sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with default stipulation.
(2.)The Relevant Facts and Background:-
2.1. The prosecution case, as has been unfurled, is that on 19.03.2008, one Amulya Barman, appearing at Melaghar police station, submitted a written complaint stating, inter alia, that about 15 years back, his sister Ratna Barman(Das) was given marriage with Parimal Das and after their marriage two children were born out of their wedlock. After a few years Parimal Das developed an illicit relation with one of his neighbour, namely Laxmi Chakraborty who used to torture his sister in presence of Parimal Das and, on 18.03.2008, at about 11 p.m. said Parimal Das poured kerosene oil on the body of Ratna Barman (Das) whereby she was set ablazed.

2.2. Upon receipt of the aforesaid written ejahar, the Officer-In-Charge of Melaghar Police Station registered Melaghar P.S. Case No. 22/2008 under Section 302/109 of IPC against the accused persons, namely, Parimal Das and Laxmi Chakraborty. Thereafter, the case was endorsed to Shri Sanjoy Laskar, Sub-Inspector of Police for investigation.

2.3. During investigation, the investigating officer visited the scene of crime, prepared the hand sketch map, seized some articles from the place of occurrence in presence of the witnesses and recorded statements of the available witnesses under Section 161 Cr.P.C. He also arrested the accused persons and forwarded them before the court. However, the investigating officer, Sri Sanjoy Laskar handed over the case to the O/C Melaghar P.S. as, in the meanwhile, he was transferred. Thereafter, S.I. Milan Datta took up the investigation of the case on 29.03.2008. He collected the dying declaration of the deceased from Melaghar Hospital, fire service report and also collected the post-mortem report. After completion of investigation, I.O submitted the charge-sheet with regard to the alleged commission of offence under Sections 302/109 against Smt. Laxmi Chakraborty and under Section 302 of IPC against Parimal Das, the appellant herein.

2.4. The case was committed to the Court of learned Sessions Judge. Having received the records of the case, the learned Addl. Sessions Judge framed charge against the Parimal Das under Section 302 of IPC. However, vide order dated 18.11.2009, Smt. Laxmi Chakraborty, the co-accused, who was charge-sheeted under Sections 302/109 of IPC was discharged.

2.5. During trial, the prosecution examined as many as 22 witnesses to substantiate the charge. After recording of evidence, the accused-appellant was examined under-Section 313 of Cr.P.C., to which he denied all the incriminating materials as surfaced from the prosecution evidence. He denied the evidence as false and reiterated that he has been falsely implicated in connection with this case.

2.6. The learned trial court took up the following points for discussions and decision:

(i) Whether the accused person had intentionally set fire by pouring Kerosene oil to his wife Ratna Barman on 18.03.2008 at about 11 pm and consequently Ratna Barman died at GBP Hospital, Agartala on 19.03.2008 at about 8.30 am due to the severe burn injury?

(ii) Whether the accused person had intentionally committed murder setting fire by pouring Kerosene oil?

2.7. After hearing the arguments of both sides, learned trial court held the appellant guilty of committing offence and convicted and sentenced him as afore-stated.

2.8. Hence this appeal.

(3.)Submission of the Learned Counsel for the Appellant:-
3.1. Criticizing the findings returned by the learned trial judge, Mr. S. Kar Bhowmik, learned counsel for the appellant strenuously argued before us that the learned Trial Judge ought to have held that the instant case was a clear case of suicide. Mr. Bhowmik, learned counsel tried to persuade this Court that the deceased, being suffered 95% burn injuries, lost her consciousness on the spot and she was not in any way be said to be in a fit condition to give a dying declaration as she never regained her senses. He further contended that P.W.-21, though was informed about the commission of cognizable offence, did not lodge suo moto complaint which led the prosecution case being doubtful.

3.2. Next, the learned counsel contended that P.W.-1 was not the eye-witness of the incident and he admitted in his cross-examination that he found the appellant in the lock-up wearing a towel. Contrary to that statement, P.W.-21, the investigating officer, Sri Sanjoy Laskar in his cross examination stated that he arrested Parimal Das from his house at about 1750 hours on 19.03.2008 as per case dairy No.1(c). According to him, the defence story finds corroboration from the statement of P.W.-1 that the accused-appellant went to the police station wearing a towel to seek police help. However, he was detained there illegally. He argued with vehemence that had he been understood that he would be implicated with the murder of his wife, he never would have gone to the police station immediately after the incident. Learned counsel urged that the conduct of the appellant just after the incident was relevant and required to be looked into.

3.3. Learned counsel also tried to discredit the versions of P.W.-3 Smt. Lila Barman one of the two staff nurses, who were the witnesses of the dying declaration recorded by P.W.-10, Dr. Dhruba Prasad Pal. Showing the duty roster of Melaghar Hospital on the relevant date and time, learned counsel for the appellant tried to convince us that P.W.-3 could not be said to be present at the time of recording of the dying declaration by P.W.-10 since, from the evidence of P.W-22, i.e. the last investigating officer, who submitted charge-sheet, stated that he recorded the statement of Lila Barman and Sipra Ghosh on 29.03.2008 at 12.00 noon at Melaghar Hospital. According to the learned counsel, at that point of time, none of the nurses were on duty as per Exbt-D-1 ( the duty roster of the nurses of the Melaghar Hospital for the month of March 2008 ). Relying upon this, the learned counsel urged before us that the statement made by P.W.-3, Lila Barman under Section 161 of Cr.P.C. should not be believed.

3.4. Learned counsel for the appellant also relied upon the register of female patients (Exbt-D2) to nullify the statements of P.W.-22 that he collected the dying declaration from Melaghar Hospital. According to him, from the register of female patients (Exbt-D2) it would be evident that one Subrata Pal, A.S.I. received the dying declaration on 9.5.2008 from Anamika Das. For the same reason, learned counsel submitted that there were two dying declarations which surfaced in the instant case making the prosecution case all the more doubtful.

3.5. It was further contended that in the injury report dated 25.03.2008 of Melaghar Hospital ( Exbt-4 ) which was written by P.W.-10 with initial stating that:

"the patient was referred to G.B.P.H. within hours after resuscitation "

according to learned counsel, there were serious doubts in regard to insertion of another sentence against which no initial was found, and ultimately, the learned counsel for the appellant contended that the dying declaration was a manufactured one and could not be relied upon.

3.6. Next, learned counsel submitted that the neighbouring witnesses who deposed before the Court should not be believed as because many of them actually had enmity with the accused-appellant and the persons who shifted the victim to Melaghar Hospital were not examined and there was no explanation from the investigating officer as to why they were not examined. Relying upon the evidence of P.W.-11, Smt. Dipti Rani Das @ Payel, Mr. Bhowmik, learned counsel submitted that she was the only witness who had reached the scene of crime and she was cross-examined on 05.09.2011, when she was minor and under the captivity of her maternal uncle and aunts. She was examined again on 25.11.2011 for the second time when she turned major and came out of the clutches of her maternal uncle and aunts. In her cross examination on 25.11.2015, she stated that her mother had committed suicide on 18.03.2008 at night by setting fire to her person and her father tried to extinguish the fire and in that process suffered burnt injuries to his person. She further deposed that her mother was unconscious on the spot and which she never regained till her last breath. Learned counsel for the appellant pointed out that her said statement was found in corroboration of the statement of P.W.-4, Pinku Dey. The learned counsel relied upon the following judgments of the Supreme Court as well as this Court:-

"1. 2014(2) TLR 566. (Para 12-23) Cog. Offence. O.C. duty bound to lodge FIR.

2. 2007 (13) SCC 501. (Para 26) In Murder case FIR cannot be lodged after Inquest.

3. 2016(4)SCC 96. (Para 20) Delay in recording 161 statement.

4. 1995 Supp(4)SCC 126. (Para 11,12,13) Dying Declaration, Physical and mental state.

5. 1976(3)SCC 618. (Para 11, 12) Dying Declaration. Fit State of mind and body.

6. 2017 (3) SCC 330. (Para 18, 21, 24, 28, 29) Without pronouncement of Judgment in open Court, signed and dated, it cannot be treated as Judgment."'



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