- (1.) On or about October 14, 1988 Md. Unush Ali Molla of village Sarberia, Police Station Sandeshkhali, District North 24-Parganas made a written complaint with the Sandeshkhali Police Station to the effect that he was sitting in his home along with Gobinda Biswas, Tapan Das, Majnu Gazi and Kalo Gazi when they heard a cry "fire fire". They rushed to the house of Pear Ali Gazi and found his son in-law Mamud Ali lying nacked in the courtyard having suffered burn injury all over his body. None of the household came forward to save him. On being asked, Mamud told that his father in-law Pear Ali Gazi, wife Bhodi Gazi and sister in-law Marzina Bibi had poured kerosene oil all over his body and set fire to kill him. They escorted the victim in a rickshaw van to the local hospital and informed Sarberia Camp. Doctor gave him firstaid and considering his precarious condition, advised shifting to any Calcutta Hospital. He took the victim to Nil Ratan Sarkar Hospital at Calcutta being accompanied by Arun Sen, Moslem Sekh, Lutfar Molla, Moslem Molla, Mozed Molla, Gobinda Biswas and Nesar Ali and got him admitted there. Mamud Sekh ultimately died at the Nil Ratan Sarkar Hospital. Police arrested Pear Ali and his two daughters being Bhodi and Morzina and charged them for committing an offence punishable under Section 302/34 of the Indian Penal Code. The accused pleaded innocence and faced trial. The learned Trial Judge held Pear Ali guilty of the offence and convicted him under Section 302 of the Indian Penal Code and sentenced him imprisonment for life. The learned Judge, however, acquitted two ladies from the charges.
(2.) Perusal of the judgment and order of the Court below depicts that the learned Judge based the conviction on the dying declaration made by Mamud Ali firstly before the FIR informant and thereafter at the Nil Ratan Sarkar Hospital.
(3.) Being aggrieved, Pear Ali preferred the instant appeal that was heard by us on the above mentioned date. Unush Ali Molla, the defacto complainant deposed as PW-1. He reiterated what he had stated in the complaint before the police. He also deposed that all parts of the body of the victim was burnt out. He along with his companions removed the victim initially to Fakirtakia Mission Health Centre by a van rickshaw and thereafter on being recommended by the doctor to Nil Ratan Sarkar Hospital by lorry. He deposed that Sri Tapan Das had written the complaint on his instruction. He deposed that while Mamud was slipping his "body was set fire." While the victim was being removed from Mission Health Centre to Nil Ratan Sarkar Health Centre by a lorry Mamud told him and others present there that while he was asleep Pear Ali poured kerosene oil on his body, so was his wife Bhodi as well as his sister in-law Morzina. He, however, admitted that he or any of his companions did not mention the name of the accused before the doctor. According to him, the victim also did not mention the name of the accused to the doctor at the Health Centre. He also deposed in cross-examination that on the way to hospital he was unable to speak, Pear Ali was also following them. Pear Ali had told them that as his wife had refused to accompany him to his father's place for settling family dispute he had committed suicide by setting fire.;