Manojit Mandal, J.
1. At the outset, it is submitted that appellant Narottam Das has expired. Copy of Death Certificate and copy of postmortem examination report are placed on record. Hence, it is recorded that the appeal by Narottam Das has abated due to the death of said appellant. Appeal involving others is taken up for hearing.
2. The appeal is directed against the judgment and order of conviction dated 26.07.2005 and 27.07.2005 passed by the learned Sessions Judge, Bankura in Sessions trial No. 7(8) of 2001 arising out of Sessions Case No. 7(7) of 2001 convicting the appellants for Commission of Offence punishable under Section 302 of the Indian Penal Code, 1860, and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for another three months.
3. The gist of the prosecution case levelled against the appellants is to the effect that victim Arati Mahanta got married with one Ajit Mahanta of Charerdanga, Bankura, before 10 years from the date of FIR according to Hindu Rites and Customs. In the wedlock, a daughter was born to them. Before 5 years from the date of lodging FIR, victim Arati being widow returned to her elder brother's house at village Fapsa along with her daughter. They started living at the custody and care of PW 1 Manik Mahanta, elder brother of the victim. Subsequently, victim Arati developed an illicit love relation with the appellant Narottam Das, their neighbour. The appellant Narottam Das was a married man having his wife and son. Appellant Narottam Das enticed away victim Arati from the custody of her brother from an unknown place in the middle of Jaistho of 1402 BS. PW 1 and others were in search of the victim but to no effect. All on a sudden on 25.03.1998 , appellant Narottam Das and victim Arati returned to village Fapsa at night and arrived at the house of Narottam Das. Thereafter around 8.30 p.m. on the same day, PW 1 and others heard a cry "Banchao Banchao" from the house of the appellants. PW 1 and others rushed to that place and on arriving, they noticed that victim Arati was lying on the varanda of the appellant Narottam's house in burnt condition. On asking victim Arati stated before them that appellant Narottam pressed her mouth with cloth, his wife appellant Samara Das poured kerosene oil on her person and his son appellant Dhrubopada Das set her on fire by the help of match stick. Victim Arati died on the spot within a short time. PW 1 informed the incident to the local Pradhan of Susunia at first and then he went to the Chhatra Police Station to report the incident. Police arrived at the spot.
4. On the basis of the statement made by the PW 1 and recorded by PW 13, the Investigating Officer, an FIR was registered at the said Police Station against the appellants under Sections 302/34 of the Indian Penal Code. After usual investigation, police submitted a charge-sheet against the appellants.
5. Charge under Section 302 of the Indian Penal Code was framed against the appellants.
6. Prosecution examined 13 prosecution witnesses and marked several documents as exhibits. On the other hand, the accused persons did not examine any witness as defence witness. In conclusion of trial, the learned Trial Judge by judgment and order dated 26.07.2005 and 27.07.2005 convicted and sentenced the appellants aforesaid.
7. It is submitted by Mr. Samiran Mandal, learned Senior Advocate appearing on behalf of the appellants, at the very outset, that guilt of the convicts was not proved on the basis of deposition of any witnesses. According to Mr. Samiran Mandal PW 1, PW 6, PW 7 and PW 10 were not present in the place of occurrence. They used to reside at a distance from the place of occurrence. None of the above witnesses saw the appellants to kill the deceased. He further submitted that evidences were purely circumstantial in nature. According to him, the circumstances from which the conclusion of guilt was drawn had not been fully established. It is further submitted that public witnesses, PW 4, PW 5, PW 8, PW 11 and PW 12 did not support the case of the prosecution. So, the appellants have been wrongly convicted and they should be acquitted from this case.
8. On the other hand, Mrs. Kakali Chatterjee, learned Additional Public Prosecutor submitted that the guilt of the accused was proved. It is further submitted that on the basis of the oral dying declaration of the deceased before PW 1, PW 7 and PW 10, the learned Court below passed the judgment and order of conviction and sentence. The above dying declaration was corroborated by the above mentioned witnesses. So far as the place and time of occurrence were concerned, according to her, the same was proved on the basis of the evidences of PW 1, PW 6, PW 7 and PW 10.
9. PW 1 is the de facto complainant, who is the elder brother of the deceased Arati Mahanta. It is his evidence that about six years back, appellant Narottam Das taken away Arati Mahanta for illegal purpose. They searched for his sister but could not get her information. After two years, his sister Arati came back with the appellant Narottam Das to his house on 10th of Chaitra and on the same night they heard hue and cry as "Agun Agun" and they rushed to the house of appellant Narottam Das and found that Arati was lying in burnt condition on the varandah of his house. His sister told him that appellant Narottam Das caught hold of her by pressing mouth and appellant Rangini put kerosene oil on her person and appellant Dhrubapod Das set her on fire. His sister Arati remained alive for about one hour/one hour 15 minutes and then died. It is also his evidence, he went to the house of Pradhan of Susunia and Pradhan advised him to go to the Police Station and to inform. He went to the Police Station and reported the incident to the Darogababu verbally and Darogababu accompanied them to the village by car and narrated the incident in details and Darogababu reduced the same into writing. He signed on the same after the contents were read over to them. This witness was cross-examined by defence. He stoutly denied the defence suggestion that his sister did not state to him that appellant Narottam held her mouth and his wife poured kerosene oil and his son set her on fire. Therefore, on scrutiny of the evidence of PW 1, I find that the PW 1 had taken prompt action after occurrence and he had fully corroborated his earlier statement made in the F.I.R. (Exhibit-1/2). I find nothing to shake the credence of his evidence. There is no reason to believe why he would depose falsely against the appellants we do not find any of the justified reasons why PW- 1 would implicate the appellants falsely.
10. PW 7 is the husband of the elder sister of victim Arati Mahanto. He has deposed that on 25.03.1998, deceased Arati returned with the appellant Narottam Das at his house in the same village at about 7/8 p.m.. They heard a cry from the house of the appellant Narottam Das saying "save and save". Going to the house of the appellant Narottam Das, they saw that Arati was burning in the courtyard and the appellant Narottam Das, his son Dhrubo and his wife were fleeing away from the house. On being asked, victim Arati stated to him that appellant Narottam Das caught hold her mouth and his wife poured kerosene oil on her body and son Dhrubo set her on fire by a match stick. Within an hour Arati died on the spot. They all tried to control the fire and fire was extinguished. Police came and seized one jaricane, one match box and stick, partly burnt clothing and a bag containing personal belongings of Arati. Police prepared seizure list and he signed on the seizure list. This witness has proved his signature on the seizure list (Exhibit-4) into evidence.
11. The evidence of PW-10 including his cross-examination reveals that victim Arati Mahanto was his co-villager and she became widow and she used to live at her parent's house at Fapsa. Victim Arati left her father's house with the appellant Narottam Das as she felt in love with him. After 2 years Arati came back to their village and on that date at about 8-8:30 p.m., they heard a sound of Arati "Save Save". He ran to the house of appellant Narottam Das hearing the shout and saw Arati on the varandah and her body was burning. Victim Arati reported that appellant Narottam Das forcefully put cloth on her mouth and pushed her down and appellant Samara Das, wife of appellant Narottam Das, poured kerosene oil on her person and appellant Dhrubopada Das, son of appellant Narottam Das, set her on fire by a match stick. They tried to extinguish the fire and the fire was controlled but the entire body of Arati was burnt and within a very short period, she died on the spot. The appreciation of this evidence of PW 1, PW 7 and PW 10 makes it clear that they met with the deceased when she was burning in the house of the appellant Narottam Das and they came to know from the deceased herself that appellant Narottam Das put her down by pressing her mouth at the varandah and appellant Samara Das poured kerosene oil on her person and appellant Dhrubapada Das set her on fire by a match stick.
12. Post mortem was held by Dr. J.N. Dey (PW-6). On examination, he found the following injuries on the person of the deceased:-
"Darmophylaxix burn over the scalp, all sides of face, under surface of lower jaw, all sides of neck, upper half of front of neck, whole back of chest, all sides of abdomen, external glueteal regions perineum, all sides of both upper and lower limbs including hand, fingers, feet toes with burning and singing of scalp hairs, eye brows, eye lashes, auxiliary hairs and pubic hairs. Burn area shows signs of inflammation and peperative changes. No mark of injury seen anywhere in the body mainly on back of chest though mentioned in the inquest report. Smell of kerosene oil present."
13. Dr. J.N. Dey (PW-6) has opined that death was due to the effect of burn injuries which was ante mortem in nature and there had been 85 to 90% burn of the deceased. The said doctor has proved the post mortem report (Exhibit-3) into evidence. On consideration of the evidence of PW-6 and the post mortem report (Exhibit-3), we hold that deceased died due to the effect of burn injuries which is ante mortem in nature.
14. The evidence of PW 1 goes to show that the conduct of PW 1, is normal human conduct of a person of ordinary prudence in such situation.
15. The statements of PW 7 and PW 10 stand corroborated by the first information report given by PW 1. The relevant portion of that report is as under:-
"On interrogation deceased disclosed that appellant Narottam Das fell her down by pressing her mouth at the verandah and wife of Narottam Das poured kerosene on her person and his son Dhruba Das set her on fire lighting by match stick."
This oral dying declaration made by the deceased immediately after the occurrence does not suffer from any infirmity. The name of the appellants as the assailants had appeared in the first information report, recorded within few hours of the actual occurrence and the fact of the deceased making a dying declaration to them had also been mentioned therein.
16. PW 1, PW 7 and PW 10 have stated that the deceased in unequivocal words had stated before them that "appellant Narottam Das fell her down by pressing her mouth at the verandah and wife of Narottam Das poured kerosene on her person and his son Dhruba Das set her on fire lighting by match stick." we accordingly, hold that the oral dying declaration which was later on reduced into writing in the first information report is truthful and convincing. There is nothing on the record to disbelieve the statement of PW 1, PW 7 and PW 10.
17. From the testimony of PW 1, PW 7 and PW 10 it appears that they had heard the cry of the deceased and rushed to the house of the appellant Narottam Das and they found the deceased lying on the floor of the verandah of the appellant while the appellants were fleeing away from their house. None of the appellants made any attempt whatsoever to extinguish the fire and save the deceased. They raised no alarm. Their conduct, thus, runs consistent with the hypothesis of their guilt and betrays that of an innocent person. In their statement under Section 313 of the Cr.P.C. they did not deny their presence in the house at the time of the occurrence but denied their involvement in that crime. The normal human conduct of any person finding someone engulfed in flames would be to make all efforts to put off the flames and save the life of the person. But the appellants here did not do anything of the kind. The appellants rendered no fast aid to the deceased. Their conduct at the time of the occurrence, therefore, clearly points towards their guilt and is inconsistent with their innocence. The appellants did not even carry the deceased to the hospital. They did not take any steps to remove the deceased to the hospital. This conduct also is inconsistent with their innocence and consistent only with hypothesis as stated by the deceased in her oral dying declaration that "the appellant Narottam Das fell her down by pressing her mouth at the verandah and wife of Narottam Das poured kerosene on her person and his son Dhruba Das set her on fire lighting by match stick."
18. There is no reason to disbelieve the dying declaration made by the deceased to PW 1 and PW 10 in the event they are residents of same village and the natural witnesses to the dying declaration made by the deceased. Reference may be made the decision reported in (2002) 6 SCC 399 (Pothakumari Srinivasulu v. State of A.P.) and the relevant portions of the decision are set out below:-
7. We find no reason to disbelieve the dying declaration made by the deceased to the witnesses PWs 1, 2 and 3. They are all residents of the same village and are natural witnesses to the dying declaration made by the deceased. No reason is assigned, nor even suggested to any of the three witnesses, as to why at all any of them would tell a lie and attribute falsely a dying declaration to the deceased implicating the accused-appellant. Though each of the three witnesses has been cross-examined but ther
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e is nothing brought out in their statements to shake their varacity." 19. Considering the record in hand, we find that the dying declaration was made by PW 1 who was the elder brother of the deceased. Such declaration was corroborated by PW 10 who was the resident of local area. The above dying declaration was made immediately after the incident. The injuries as mentioned in the post mortem report also corroborate the evidence of PW 1, PW 7 and PW 10. So, we are of view that the evidence of PW 1, PW 7, PW 10 and PW 6 are cogent, reliable and acceptable. We are of the view that there was no legal impediment to make it the sole basis of conviction. 20. PW 4 and PW 5 did not support the prosecution case and they have been declared hostile by the prosecution. The fact that they have deposed falsely, has been proved by the statement of Investigating Officer (PW 13). 21. In view of the above observations made hereinabove, we do not find any substance in the submissions made by the learned Advocate appearing for the appellants. The circumstances from which the conclusion of guilt was drawn cannot be interfered with. 22. We are, therefore, not inclined to interfere with the impugned judgment and order of conviction and sentence. 23. This appeal is thus dismissed. 24. Let the Lower Court Record along with copy of this judgment be sent to the learned Court below expeditiously. 25. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking.