Calcutta High Court (Appellete Side)

Samaresh Biswas vs The State Of West Bengal on 30 November, 2022

Author:
Debangsu Basak

Bench:
Debangsu Basak

IN THE HIGH COURT AT CALCUTTA
Criminal Application
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi

CRA 199 of 2020

Samaresh Biswas

Versus

The State of West Bengal

For the appellant : Mr. Arnab Chatterjee, Adv.
: D. Biswas, Adv.

For the State : Mr. Madhusudan Sur, ld. APP
: Ms. Sreyashee Biswas, Adv.

Heard on : 11th November, 2022

Judgment on : 30th November, 2022
Md. Shabbar Rashidi, J.:

1. The appeal is directed against the judgment of

conviction dated 24.02.2020 and consequential order of

sentence dated 26.02.2020 passed by learned 2nd

Additional District & Sessions Judge, Krishnanagar, Nadia

in Sessions Trial No. XI (II) of 2018 corresponding to

Sessions Case No. 27 (02) of 2018 under
section 302
of

the Indian Penal Code.

2. The victim i.e. the wife of the de facto complainant

used to reside alone and developed a relationship with the

accused Samaresh Kirtonia. Owing to his employment, the

de facto complainant then, used to reside outside.

3. On 08/11/2017 at about 11 pm, the accused

entered into the house of the victim and had an altercation

with her. Hearing the shouting, the elder brother of the de

facto complainant rushed to the room of the victim and

saw her blazing. Samaresh then fled away. The victim was

taken to Krishnaganj hospital for her treatment and she
was referred to Saktinagar hospital and thereafter, she

was further referred to Kalyani Jahar Lal Nehru Hospital

in a precarious condition. The victim is said to have

narrated the incident to the de facto complainant in

course of her treatment and is said to have reported that

she was set ablaze by accused Samaresh with an intention

to kill her. Being informed by his elder brother of the de

facto complainant came back and lodged the written

complaint with Krishnaganj police.

4. On the basis of such written complaint lodged by

the de facto complainant, Krishnaganj P.S. Case No.370

dated 11.11.2017 under
section 326
/
of the Indian

Penal Code was started against the convict Samaresh

Kirtonia.

5. The police took up investigation and on

completion thereof submitted charge sheet against the

convict under
section 302
of the Indian Penal Code.

6. Pursuant to the compliance of the provisions

under
section 207
of the Code of Criminal Procedure and
the case, having been committed to Court of Sessions,

charge under
section 302
of the Indian Penal Code was

framed to which the convict pleaded not guilty and

claimed to be tried. The convict stood trial.

7. In course of trial, prosecution altogether adduced

as many as 24 witnesses. In addition, prosecution also

adduced documentary evidences as well.

8. The appellant was examined under
section 313
of

the Code of Criminal Procedure where he pleaded

innocence. No defense witness was adduced by the

appellant.

9. PW1 is the de facto complainant. He has stated

that on the date of incident i.e. 08/11/2017, he was at

Pune and came down the next day. He attended his wife at

JNM Hospital, Kalyani. He came to know from Puja that

on the date of incident, accused Samaresh came to his

house in his absence, assaulted her, poured kerosene oil

over her body and set her on fire. He further stated that

his mother, elder brother and his wife used to reside in the
same house but in separate rooms. He also came to know

about the incident from his elder brother Rabindranath

Kirtonia. Subsequently, he lodged a written complaint with

the police and proved his signature thereon (Ext.1/1). He

further stated that his wife died after 10 days of the

incident at JNM Hospital, Kalyani. He also proved his

signature on the report prepared over the dead body

(Ext.2/1).

10. In his cross-examination, PW1 stated that

when he came from Pune, he visited his wife in the

hospital and found her in precarious condition and on

that very day, he lodged the written complaint. He

admitted in his cross-examination that he had no good

relations and visiting terms with the accused.

11. The elder brother of de facto complainant,

Rabindranath Kirtonia deposed as PW2. He stated that he

along with his wife and son went to bed at 7.30 pm. While

asleep, he heard hue and cry. Coming out, he saw his

brother's wife Puja ablaze in the courtyard and the
accused Samaresh fleeing away. PW2 poured water to

douse the fire, thereafter she was lying down on the

ground and then PW2 took her to Krishnaganj hospital for

treatment. PW2 also recorded his statement under
Section
of the Code of Criminal Procedure and proved the

statement (Ext. 3) and his signatures thereon (Ext. 3/1,

3/2 and 3/3 respectively). He also proved his signature

on the seizure list through which a bottle containing

kerosene oil was seized (Ext. 4/1) and the bottle (Mat

Ext. 1). PW2 also proved his signature on the seizure list

through which mosquito net etc. was seized by the

investigating officer ((Ext. 5/1) and the aforesaid articles

(Mat Ext. II).

12. In his cross-examination, PW2 admitted that

the seized articles were not labeled.

13. Wife of PW2 deposed as PW3. She also stated

that at the relevant time she was sleeping with her

husband (PW2). Upon hearing hue and cry, she came out

and found Puja Kirtonia in flames in the midst of the
courtyard. Her husband tried to douse the fire by pouring

water. Thereafter, they brought the victim to Krishnaganj

Hospital, where PW3 was reported by the victim that

accused Samaresh set her on fire. PW3 also stated that

Puja had earlier informed her that Samaresh used to

disturb her and try to make a relation with her but she did

not care to such proposals. Without naming her

informant, PW3 stated that she heard on the date of

incident that the occurrence was perpetrated by

Samaresh. Puja died in 7/8 days of the occurrence. In her

cross-examination, PW3 stated that none of the

neighbouring people came to her house at the date and

time of the incident.

14. PW4 is the father of the de facto complainant.

He has not supported the case of the prosecution and was

declared hostile.

15. The doctor of Krishnaganj Hospital was

examined as PW5. He treated the victim on 09.11.2017

and referred her to Saktinagar Hospital. He proved the
report prepared by him (Ext. 6). PW5 also stated that

when the victim was brought with history of burn injuries,

she was not able to speak but she could answer the

leading question put to her by nodding her head and like.

16. Another doctor of Nadia District Hospital

deposed as PW6. He stated that on 09.11.2017, he

examined the victim Puja Kirtonia referred from

Krishnaganj BPHC brought by her brother-in-law

Rabindranath Kirtonia. She had sustained 70% burn

injuries. She was admitted in the hospital. Thereafter,

police was informed and her statement was recorded. PW6

deposed to the effect that as per the statement of victim

Puja Kirtonia, she was beaten by one Samaresh Biswas

and set on fire. Thereafter, he himself put out the fire after

which Puja Kirtonia herself set her on fire. PW6 also

referred the patient to Jawahar Lal Nehru Medidcal

College & Hospital or NRS Hospital, Kolkata. He also

informed the police for recording her dying declaration.
PW6 proved his endorsements on the Bed Head Ticket

(Ext.7/1).

17. The doctor of Jawahar Lal Nehru Medidcal

College & Hospital deposed as PW 7. He stated that on

10.11.2017, one patient Puja Kirtonia, admitted under Dr.

Subikash Biswas, Dr. Chinmoy Mallick, Dr. Nipun Roy

and Dr. H. Hassa of burn unit, made a statement before

police in his presence and he signed on the statement

after recording of such statement which he proved (Ext.

8/1). In his cross-examination, PW7 admitted that there

was no note as to who scribed the statement and under

whose instructions. He further admitted that there was no

endorsement in the statement so recorded that the patient

was in a fit state to give statement and that his signature

did not contain the date.

18. One staff nurse of Jawahar Lal Nehru

Medidcal College & Hospital deposed as PW8. She stated

that on 10.11.2017 one Puja Kirtonia gave her dying
declaration before the police. She proved her signature on

the statement (Ext. 8/2).

19. In her cross-examination, PW8 admitted that

there was no date beneath her signature on the alleged

dying declaration recorded by the police and that she was

never interrogated by the police.

20. PW9 accompanied the witness Rabindranath

Kirtonia for recording his statement under
Section 164
of

the Code of Criminal Procedure.

21. PW10 is the Magistrate who conducted inquest

over the dead body of the victim. She proved the inquest

report (Ext. 9).

22. PW 11 is a police constable who collected the

viscera of Puja Kirtonia from Jawahar Lal Nehru Medidcal

College & Hospital under direction from S.I. Snehasish

Das of Krishnaganj police station. This witness has proved

the viscera requisition (Ext. 10) and his signature on the
seizure list through which the viscera was seized (Ext.

11/1).

23. PW12 is another witness to the seizure list

through which the viscera was seized (Ext. 11/2).

24. PW13 is the toto driver who carried accused

Samaresh Biswas to Krishnaganj Hospital being called by

him at about 10.00 pm 5/6 months ago (from

31.05.2018). He has also stated that he found that

Samaresh Biswas had sustained burn injuries on both his

hands.

25. PW14 is another toto driver. He stated that

about 6 months ago (from 31.05.2018) he was called by

Rabindranath Kirtonia and carried Puja Kirtonia to

Krishnagang BPHC as she sustained burn injuries.

26. The mother of the victim was examined as

PW15. She stated that her daughter Puja Kirtonia was

married to Bishu@ Biswanath Kirtonia. Her son-in-law

used to reside at Dubai for his job. She also stated that
Samaresh set her daughter on fire. She rushed to the

hospital and saw her daughter in burnt condition. She

also came to know that Samaresh set her on fire and after

9 days of the incident, Puja died. In her cross-

examination, PW15 admitted having come to court for

deposition with her son-in-law and another witness

(PW16).

27. PW16 did not support the case of the

prosecution and was declared hostile.

28. PW17 though, was not declared hostile but has

not supported the case of the prosecution.

29. PW18 also did not support the case of the

prosecution and was declared hostile witness.

30. PW19 is the sister of de facto complainant. She

stated that she was reported by the victim in the hospital

that she was set ablaze by Samaresh.

31. The autopsy surgeon was examined as PW20.

He conducted post-mortem examination on the dead body
of the victim and found no other injury on her person

except the burn injuries. He proved the Post-mortem

report (Ext. 12).

32. PW21 is the recording officer. He received the

written complaint on 11.11.2017 and started Krishnaganj

P.S. Case No.370 dated 11.11.2017 under
Section
/
of the Indian Penal Code. He has proved the

endorsement of receipt (Ext. 1/2) and the formal First

Information Report (Ext. 13).

33. PW 22 is an ASI of police who conducted

inquest on the dead body of the victim in connection with

U.D. Case No. 558/2017 dated 19.11.2017. He has proved

the inquest report (Ext. 2), the dead body challan (Ext.

14) as well as requisition for the inquest (Ext. 15) and his

signature on the inquest was conducted by the S.D.O.

Kalyani (Ext. 9/1).

34. PW 23 is a Sub-Inspector of police who

recorded the dying declaration of the victim on

10.11.2017. He stated that on 10.11.2017, he visited
Jawahar Lal Nehru Medical College & Hospital, Kalyani

and recorded the dying declaration of the victim in

presence of Krishna Rout, duty staff and Dr. Sabuj Pal of

JNM Hospital, Kalyani and obtained their signatures on

the statement so recorded (Ext. 8).

35. In his cross-examination, PW23 admitted that

the contents of the statement recorded by him and his

signature thereon were in two different inks without any

explanation to this effect. Admittedly, there was no note as

to who identified the victim and that PW23 did not take

necessary permission from the superintendent of the

hospital or the attending doctors for recording such

statement. PW 23 also admitted that there was no note to

the effect that he disclosed his identity before the victim

prior to recording her statement or that the victim was

physically capable of giving such statement. PW 23 also

admitted that he did not make any note of the location of

the victim in the hospital or the exact place where the

statement was recorded. It was also admitted that the
statement so recorded did not contain any note that it was

recorded as per the statement of the victim and it was read

over and explained to her after recording. Admittedly, the

victim was not in position to put her signature or thumb

impression. He has also stated that PW23 did not make

any entry in the G.D.E. book maintained at the police

station regarding his exit and return to the Police Station,

for the purpose of recording the dying declaration of the

victim.

36. The Investigating Officer was examined by the

prosecution as PW 24. He has proved the rough sketch

map of the Place of occurrence with index (Ext. 16 &

16/1 respectively), seizure list through which mosquito

net etc. were seized (Ext. 5) and photograph of the victim

and place of occurrence (Mat Ext. III & IV respectively).

In course of investigation, PW 24 examined available

witnesses and recorded their statements. He also collected

and seized the viscera of the victim under a seizure list

(Ext. 11). On completion of investigation PW 24, he
submitted charge sheet under
section 302
of the Indian

Penal Code.

37. The convict stood the trial and upon

conclusion of the trial, the learned trial court, by the

impugned judgment and order convicted the accused for

the offence punishable under
Section 302
of the Indian

Penal Code and sentenced him to undergo life

imprisonment and to pay a fine of Rs.20,000/-

38. The appellant has sought to assail the

judgment and order of conviction and sentence on the

ground that learned Trial Court did not consider the delay

in lodging the First Information Report. It has also been

pointed out that the impugned judgment is perverse so far

as in spite of presence of several houses in the vicinity, no

independent witness has been examined or has supported

the case of prosecution, rendering its veracity highly

doubtful. The appellant has also challenged the

genuineness of the alleged dying declarations of the victim
banking upon the contradictory accounts narrated by the

victim at different times.

39. According to the narrative set out by the

prosecution, on the fateful day i.e. on 08/11/2017 at

about 11 pm, the victim was sleeping in her room. The

husband of the victim was at Pune. The brother-in-law,

wife of brother-in-law and other relatives of the victim

were also sleeping in the adjoining rooms of the self-same

house. Suddenly, the relatives of the victim heard a hue

and cry. Coming out, they saw the victim in flames. The

brother-in-law of the victim (PW 2) claims to have seen the

convict, fleeing away from there. The husband and wife of

the brother-in-law of the victim have claimed that they

were reported by the victim herself that she was set ablaze

by the convict.

40. The victim was first taken to Krishnaganj

Hospital, wherefrom she was referred to Saktinagar

Hospital and ultimately, she was shifted to Jawahar Lal

Nehru Medical College and Hospital, Kalyani on
09.11.2017. The wife of the brother-in-law of the victim

(PW 3) has categorically stated in her deposition that she

met the victim in Krishnaganj Hospital where she reported

to her that she was set on fire by the convict. However,

neither the brother-in-law of the victim (PW 2) nor his wife

(PW 3) reported the matter to police instantly. The hospital

authorities, received a patient with burn injuries of critical

nature and referring her for better treatment, recorded her

statement which is relied by the prosecution as dying

declaration, yet no steps appear to have been taken for

reporting the matter to the police which ought to have

been done in usual course.

41. The husband of the victim was allegedly

informed of the incidence at Pune and he is said to have

returned on the day following the incident i.e. on

09.11.2017. Upon return, he met his wife at JNM

Hospital, Kalyani where he was reported by his victim wife

that on the date of incidence, the convict, Samaresh
entered into the room of his wife, assaulted her, poured

kerosene oil and set her on fire.

42. From the story set up by the prosecution, it is

evident that the victim died of burn injuries and that the

injuries so inflicted were the outcome of the overtact

perpetrated by the convict Samaresh. For the aforesaid

reasons, the said Samaresh was put to trial for causing

death of the victim and was ultimately, convicted for the

offences punishable under
Section 302
of the Indian Penal

Code, 1860.

43. So far as the death of the victim is concerned,

it is not challenged from any corner. There are ample

evidences that the victim was found on fire on the fateful

night. She sustained burn injuries in the incidence and

was taken to Krishnaganj Primary Health Centre for her

treatment. She was later moved to Saktinagar Hospital

and owing to her precarious condition; she had to be

moved to Jawahar Lal Nehru Medical College & Hospital

for better treatment. In course of her treatment, she
succumbed to the injuries so inflicted in the incidence.

The oral evidence of PW 1, PW 2, PW 20 and other

witnesses together with the testimony of Ext.-12 (Post-

mortem Report) and Ext. 2 (inquest report) goes to prove

that the victim died at JNM Hospital on 19.11.2017.

Exhibit 12 is explicit that the death was due to septic

absorption from infected ulcer resulting from burn injuries

which were ante-mortem.

44. As regards the cause of injuries so inflicted, it

is the case of the prosecution, that convict entered into the

room of the victim, assaulted her, poured kerosene oil and

set her on fire.

45. PW 2 is the only person, who has claimed that

he saw the convict Samaresh fleeing away from the scene

of occurrence. According to his version, on 08.11.2017 at

about 11 pm, while he was sleeping in his room with his

wife (PW 3) and child, he heard hue and cry and coming

out of his room, he saw the victim in flames. He also saw

the accused Samaresh fleeing away He tried to douse the
fire by pouring water and brought the victim to the

hospital. PW 3 the wife of PW 2 also came out of her room

hearing the screams. She, though, did not claim to have

seen the accused at that time, however, she stated to have

been reported by the victim in the Primary Health Centre

itself that she was set on fire by accused Samaresh.

46. Neither PW 2 nor PW 3 reported the incident to

the police. It appears that they just waited for the arrival

of the husband of the victim and did not take any steps to

inform the police about the incidence. It seems quite

astounding that the hospital received a patient with

serious burn injuries and that too with the history of

culpability by someone and yet no steps were taken to

inform the police. Not only that, the de facto complainant

i.e. the husband of the victim who was allegedly at Pune

on the date and time of incidence came back on the

following day being informed about the occurrence. He met

his wife in JNM Hospital on the following day where she

reported her that she was set ablaze by accused
Samaresh. Nevertheless, no police complaint was lodged

by the husband of the victim (PW 1) on the day he was

reported i.e. 09.11.2017. There is also no explanation as

to why the police report was not made on the following day

as well i.e. on 10.11.2017 and the entire day of

11.11.2017 until 16.25 hrs.

47. The police complaint appears to have been

lodged after two days i.e. on 11.11.2017 at 16.25 hrs. No

explanation, whatsoever, appears to have been advanced

on the part of the prosecution as to the delay in lodging

the First Information Report. Such an inordinate delay in

lodging the First Information Report casts serious doubts.

48. According to the testimony of PW1, he

returned from Pune on the day following the occurrence.

He alleged that on return, he handed over the air tickets to

the investigating officer to substantiate his bona fide

absence on the date and time of incident. However, no

such document has been brought forth by the

prosecution. Neither the said air tickets appear to have
been seized by the investigating officer nor has the same

been proved on the part of the prosecution.

49. For prosecuting the appellant, the prosecution

has relied upon the evidence of PW 2 who alleged to have

seen him fleeing away from the place of occurrence just

after the incident. However, the testimony of PW 2 has not

been corroborated by any independent witness. Evidence

is forthcoming that there are so many houses around that

of the victim and there was a hue and cry which drew PW2

and PW3 but no one from the locality came forward to

support the version of PW2.

50. In order to bring home the charges levelled

against the appellant, the prosecution has also banked

upon the dying declarations given by the victim. In the

instant case, the victim is said to have given three different

statements at different point of time which are sought to

be utilized as dying declarations of the victim. The first

dying declaration was recorded by Dr. Ramprasad Mallick

(PW5), the Medical Officer of Krishnaganj BPHC (Ext. 6).
The testimony of PW5 as well as Exhibit 6 goes to show

that the victim was not in a position to talk and she

answered the leading questions put to her by nodding. In

such statement, the victim stated that she poured

kerosene oil on her body and put on fire herself. The

incident happened at her house on 08.11.2017 at 10 pm.

She, however, kept silent when asked about the reason.

Exhibit 6 also goes to show that the victim was brought to

Krishnaganj Block Primary Health Centre on 09.11.2017

at 12.10 a.m. and at that time, she was not able to speak.

This belies the statement of PW3 that the victim reported

her in the said Krishnaganj BPHC that she was set on fire

by the appellant.

51. The second dying declaration (Exhibit 7/1) was

recorded by Dr. Nobarun Banerjee (PW6) of Nadia District

Hospital. The victim was admitted in the said hospital at

1.30 a.m. on 09.11.2017 and she was examined by PW6 at

01.40 a.m. The victim made a statement before PW6 to the

effect that she was beaten by Samaresh Biswas and he set
fire upon her body. Then he put out the fire himself after

which the victim set fire upon herself and brought herself

to the present condition. At the time of such examination

of the victim, PW6 found the patient sustained 70% total

body surface area mixed burn.

52. The third dying declaration was recorded by SI

of police Prosenjit Ghosal (PW23) on 10.11.2017 at

01.45.am at JNM Hospital in presence of on duty staff

Krishna Rahul (PW8) and on-duty medical officer Dr.

Sabuj Pal (PW7). In such statement, the victim stated that

her neighbor, Samaresh used to love her but she did not

pay any heed. For this reason, she called the said

Samaresh over phone to her house for compromise talks.

There she was assaulted by Samaresh. In order to terrify

him, the victim herself poured kerosene on her body.

Samaresh was not scared and put her on fire. She used to

be loved by her husband.

53. It has been contended on the part of the

appellant that there are material-contradictions in the
three dying declarations and such statements on the part

of the victim cast serious doubts over the veracity of the

prosecution story and cannot be relied upon to secure

conviction. The impugned judgment of conviction is

therefore perverse.

54. In at least two of the dying declarations, the

victim appears to have stated that she herself poured

kerosene on her person and self immolated herself. In two

of her such statements, she appears to have stated that

she was assaulted by the appellant. However, the story of

alleged assault is not corroborated by the medical

evidence.

55. Moreover, the victim herself called the

appellant to her residence at considerable late hours of

evening for a settlement. This shows some kind of

relationship between the victim and the appellant.

56.
In this context, the appellant has relied upon

the decision reported in (2009) 1 SCC (Cri)287
(
Mehiboobsab Abbasbai Nadaf vs State of Karnataka
). In

the aforesaid case, it was observed that,

"7. Conviction can indisputably be based on a

dying declaration. But, before it can be acted

upon, the same must be held to have been

rendered voluntarily and truthfully.

Consistency in the dying declaration is the

relevant factor for placing full reliance

thereupon. In this case, the deceased herself

had taken contradictory and inconsistent

stand in different dying declarations. They,

therefore, should not be accepted on their face

value. Caution, in this behalf, is required to be

applied."

57. Appellant also relied upon the judgment in the

case of
Kashi Vishwanath vs State of Karnataka

(2013)3 SCC (Cri) 257. The facts of the case are very

identical to the case at hand. The reliability of the three

dying declarations in the afore-cited case was negated by
the Hon'ble Apex Court on two counts. First, there were

material-contradictions in the statements so recorded and

secondly, the same was recorded in a language which the

victim did not speak. The Hon'ble Court also took into

account the possibility of the victim being influenced by

somebody in making the dying declarations. So is the case

in the present case. The victim gave her first statement by

nodding which was taken down in English. The second

dying declaration was recorded on the same day i.e.

09.11.2017. Whereas, the third dying declaration was

recorded on the following day when her husband had

arrived and met her. Such inconsistencies in the three

statements create reasonable doubts regarding its

reliability and a conviction based on such inconsistent

dying declarations does not seem to be safe.

58. The appellant has also taken a stand that in

the facts and circumstances of the case, intention to kill

was not explicit. The appellant tried to drench the fire and

in doing so sustained burn injuries himself. Therefore, the
conviction under
Section 302
of the Indian Penal Code was

not justified. He could have been guilty of abetment of

suicide punishable under
Section 306
of the Indian Penal

Code since the first dying declaration discloses that the

victim herself put her on fire with a view to scaring the

appellant. In the event of other two dying declarations

being considered, a case punishable under
Section 302

was not made out. Rather, at the best, a case punishable

under
Section 304
Part II of the
Indian Penal Code
. It has

also been contended that the learned Trial Court could

have legally convicted the appellant under
Section 306
of

the Indian Penal Code instead of
section 302
of the Indian

Penal Code even if no charge was framed therein.
In this

regard, the appellant has relied on the decision of Hon'ble

Supreme Court in the case of
Dalbir Singh v State of UP

(2004) 5 SCC 334, wherein it was held that,

"17. There are a catena of decisions of this

Court on the same lines and it is not necessary

to burden this judgment by making reference to
each one of them. Therefore, in view of
Section
CrPC, it is possible for the appellate or

revisional court to convict an accused for an

offence for which no charge was framed unless

the court is of the opinion that a failure of

justice would in fact occasion. In order to judge

whether a failure of justice has been

occasioned, it will be relevant to examine

whether the accused was aware of the basic

ingredients of the offence for which he is being

convicted and whether the main facts sought

to be established against him were explained

to him clearly and whether he got a fair

chance to defend himself. We are, therefore, of

the opinion that Sangaraboina Sreenu [(1997)

5 SCC 348 : 1997 SCC (Cri) 690] was not

correctly decided as it purports to lay down as

a principle of law that where the accused is

charged under
Section 302
IPC, he cannot be
convicted for the offence under
Section 306

IPC."

59. In support of his contention, learned Advocate

for the appellant also relied upon the judgment reported in

(2009)8 SCC 796 Maniben v State of Gujrat. In the

aforesaid judgment, the Hon'ble Apex Court was pleased

to hold that,

"20. There is also evidence on record to prove

and establish that the action of the appellant to

throw the burning tonsil was preceded by a

quarrel between the deceased and the

appellant. From the aforesaid evidence on

record it cannot be said that the appellant had

the intention that such action on her part

would cause the death or such bodily injury to

the deceased, which was sufficient in the

ordinary course of nature to cause the death of

the deceased. Therefore, in our considered

opinion, the case cannot be said to be covered
under clause (4) of
Section 300
IPC. We are,

however, of the considered opinion that the case

of the appellant is covered under
Section 304

Part II
IPC
."

60. Eliciting the similar point, the appellant also

relied upon a decision reported in (2005) 10 SCC 737

Sree Vijaykumar & Anr. V State, by Inspector of Police.

In the said case also, the accused were tried and convicted

for the offence punishable under
Section 302
of the Indian

Penal Code. However, in appeal, the Hon'ble Supreme

Court observed that in absence of clear intentions, the

case came under
Section 304
Part II of the said Code, in

the following terms, that's to say:

"17. The next question is what are the

conclusions to be drawn as regards the offences

committed by the two appellants, going by the

version in the dying declaration coupled with

the evidence of PW 1 to the extent it is in

conformity with the dying declaration. Accused
1 hit the deceased on his head with a bottle.

Assuming that some liquid spread over the

body, there is no satisfactory evidence to

establish that it was petrol or kerosene or such

other highly inflammable liquid. This aspect we

have already adverted to. If the idea of A-1 was

to pour some inflammable liquid on the body of

the deceased, in all probability, he would not

have resorted to the odd way of hitting the

bottle containing the offensive liquid on his

head. In the dying declaration there is no

reference to the fact that any inflammable

liquid spilled over from the bottle. Even if some

liquid came out of the bottle as per the version

of PW 1, it cannot be taken for granted that it

was inflammable liquid. Coming to the act of

the second accused in throwing a burning

kerosene lamp soon after the attack of A-1 with

bottle, we are inclined to think that it was a

random act resorted to by the second accused
on the spur of the moment, apparently to cause

harm to the deceased. It was not a pre-planned

act done with the definite intention of causing

death. It is not the case of the prosecution that

A-2 went close to the deceased and lit up his

clothes with the kerosene lamp. Hurling a small

burning lamp towards a person may not

definitely cause fire to the clothes. No doubt it

was a dangerous act and it was likely to cause

fire. But in view of the fact that the candle-like

lamp comes into contact with the clothes of the

targeted person for a split second, it may or

may not be in a position to ignite the fire. A

person throwing the kerosene lamp in that

fashion cannot at any rate be imputed with the

intention to cause the death or causing such

bodily injury as is likely to cause death. He can

only be imputed with the knowledge that by

such a dangerous act, he was likely to cause

death. The overt act of Accused 2 in throwing
the burning kerosene lamp at the deceased

would, in our view, give rise to the offence of

culpable homicide not amounting to murder

punishable under Part II of
Section 304
. The

discussion supra also leads to the inference

that the appellants would not have shared the

common intention though the common intention

could spring up at the spot. One accused hitting

the deceased with a bottle on his head which

did not cause even a visible injury and the other

accused throwing a burning kerosene lamp from

a distance cannot be said to be acts done in

furtherance of common intention to cause the

death of Rajeswaran. These are random acts

done without meeting of minds. They can only

be held guilty for the individual overt acts. A-2

is, therefore, liable to be convicted under

Section 304
(Part II). Accordingly, he is

convicted and sentenced to undergo

imprisonment for seven years and to pay a fine
of Rs 500. In default of payment of fine, he

shall undergo imprisonment for a further period

of three months. His conviction and sentence

under
Section 302
IPC is set aside."

61. The appellant has challenged the very

conviction in a case based on the testimony of three

contradictory dying declarations. In the alternative, it has

been contended that if the dying declarations are taken to

be true and reliable, at the best, the appellant could have

been convicted under
Section 306
or 304 Part II of the

Indian Penal Code
.

62. On the contrary, learned Advocate for the state

has submitted that the conviction of the appellant for the

offence punishable under
Section 302
of the Indian Penal

Code is well founded based on reliable dying declarations

and deserves no interference.
In support of his contention,

learned Advocate has relied upon the decision in
Laxman

v State of Maharashtra
reported in 2002 C Cr. L R

(SC)1022 corresponding to (2002) 6 SCC 710. In the
aforesaid decision, it was
laid down by
the Hon'ble Apex

Court that,

"3. The juristic theory regarding...................

What is essentially required is that the person

who records a dying declaration must be

satisfied that the deceased was in a fit state of

mind. Where it is proved by the testimony of the

Magistrate that the declarant was fit to make

the statement even without examination by the

doctor the declaration can be acted upon

provided the court ultimately holds the same to

be voluntary and truthful. A certification by the

doctor is essentially a rule of caution and

therefore the voluntary and truthful nature of

the declaration can be established otherwise."

63. Although, recording of dying declaration by a

police officer has not been challenged by the appellants in

the present appeal but learned Advocate for the State, in

his wisdom, has opted to rely upon a decision reported in
(2000) 7 SCC 254 Gulam Hussain v State of Delhi. In

the said case, statement recorded by an ASI of Police even

before the investigation actually started was held to be a

dying declaration.

64. So far as the present case is concerned, we

have concluded on the basis of evidence on record that the

victim died of burn injuries. The cause of the injuries so

inflicted, according to the First Information Report, is said

to be an altercation between the victim and the appellant.

65. PW 2 claimed to have seen the appellant

fleeing away from the scene just after the occurrence. No

independent witness has come forward to support the

statement of PW 2, though, there is evidence on record

that there were several houses in the locality. PW 3 claims

to have been reported by the victim herself that she was

set on fire by the appellant, at a time when, according to

the doctor, the victim was not in a position to speak and

gave her statement by nodding. The circumstances raises
serious doubts with regard to the case implicating the

appellant.

66. We have already considered hereinbefore, that

in her statements which have been considered by the

prosecution as well as the learned Trial Court as dying

declarations (Exhibits 6, 7 and 8), the victim appears to

have made undulating statements. She herself claimed to

have called the appellant for a settlement. In, at least, two

of the statements so recorded, she claimed that she herself

poured kerosene on her person. In her first and second

statements, she stated her self-immolation. The story of

assault by the appellant is not supported by any medical

evidence. In one of such statements, the victim has stated

in unambiguous terms that the appellant put her on fire

and then doused it and, thereafter, she herself put her on

fire. In the wake of such swindling statements by the

victim, the dying declaration does not stir much reliability

about its veracity, sufficient enough, to secure conviction
of the appellant for an offence like 302 of the
Indian Penal

Code
.

67. It is well settled that in order to achieve a

conviction, the evidence must point to one and only

proposition and that in every probability, it points to the

guilt of the accused. It is also settled principle that where

there can be two or more propositions possible, the one

which is in favor of the accused should be accepted and

the accused should be extended with the benefit of doubt.

68. The present case falls in the second category.

There appears to be serious doubts with regard to veracity

of the story set out by the prosecution and the evidence

adduced to bring home the story so set forth. The

appellant deserves the benefit of doubts. For the aforesaid

reasons, the impugned judgment of conviction dated

24.02.2018 and order of sentence dated 26.02.2018 are

liable to be set aside.

69. Accordingly, the appeal being CRA (DB) 199 of

2020 is allowed. The appellants shall be released from
custody, if not wanted in any other case, upon execution

of a bond to the satisfaction of the Trial Court which shall

remain in force for a period of six months in terms of

Section 437A
of the Code of Criminal Procedure.

70. Lower Court Records along with a copy of this

judgment be sent down at once to the learned Trial Court

for necessary action.

71. Photostat certified copy of this order, if

applied for, be given to the parties on priority basis upon

compliance of all formalities.

[MD. SHABBAR RASHIDI, J.]

72. I agree.

[DEBANGSU BASAK, J.]