GIRISH CHANDRA GUPTA, J. - (1.) THIS appeal is directed against a judgment dated 8th August, 1990 passed by the learned Additional Sessions Judge, 2nd Court, Alipore in Sessions Trial No. 4(6) of 1989 convicting the accused Dipankar Sandhu of the offence punishable under section 302 of the Indian Penal Code and an order dated 10th August, 1990 by which the accused Dipankar was sentenced to imprisonment for life for the aforesaid offence.
(2.) THE facts and circumstances of the case briefly stated are as follows :- In the night of 29th/30th, December 1986, Gitali Sandhu wife of the accused got 90% burnt. She was hospitalized by her husband. She died in the morning, within 3 years of marriage leaving a female child. The father of the deceased Sri Charan Kumar Saha was informed by one of his relatives that his daughter had been burnt by pouring kerosene oil. The daughter had earlier complained about ill treatment received in her father in law's house when the father had consoled her by saying that with the passage of time things would become normal. It was also alleged in the written complaint that the de facto complainant had no doubt in his mind that his daughter Gitali was burnt down by her husband. On that basis, a case under section 307 of the Indian Penal Code was started. Following death of the victim on the next day, section 302 of the I.P.C was added and ultimately the accused was charged under sections 302 and 498A of the I.P.C and was convicted and sentenced as indicated above. Mr. Basu, the learned Counsel appearing in support of the appeal made the following submissions : (a) There is only one eye witness, namely, PW-1. The incident narrated by her in Court is conspicuously absent from her statement under section 161 Cr.P.C and it is difficult to believe that the PW 1 witnessed the incident and therefore her evidence cannot be taken into consideration for the purpose of upholding the conviction. (b) The hostility in the matrimonial house alleged in the written complaint was not deposed to by the witnesses in Court. (c) The prosecution did not disclose anything as to when was the injury, resulting in hematoma detected by the Autopsy Surgeon, inflicted upon the victim. The doctor who had the occasion to examine the victim in the hospital did not find any such injury nor did lie give any treatment with regard thereto.
(3.) THESE submissions advanced by Mr. Basu, really revolve around the principal question as to whether the accused is the author of the crime. We would like to examine the evidence on record in order to answer these questions. The matrimonial house of the deceased is a two storied building consisting of the ground floor and the first floor. The ground floor was occupied by the mother of the accused. In the first floor the accused Dipankar used to reside with his wife and the tiny child. There is no doubt as regards any fourth occupant of the first floor which has also been admitted by Mr. Basu before us. The incident took place in the first floor. The complaint, it appears, was lodged at about 1.45 hours on 30th December, 1986 and the police promptly visited the place of occurrence at 02.5 hours on 30th December, 1986. The following articles were seized by the police from the landing of the stair case leading to the roof of the building. (1) One 16 k.g. tin containing some liquid substance smelling kerosene. (2) One H.P. Motor Oil 5 liter tin containing some liquid substance smelling kerosene. (3) One red colour piece of cotton cloth in burnt condition said to be the portion of saya of Gitali Sandhu. The seizure list has been marked exhibit 8. At 13.35 hours on 30th December, 1986 one Janata pattern kerosene cooker full of kerosene oil was seized vide seizure list marked exhibit 1. Inquest was held by the PW 8 at 21.30 hours on 30th December, 1986. The inquest report is Exhibit-2. The Inquest report contains the following significant information : "Smelling of K Oil was coming from her body and she had burnt injuries all over her body, particularly, face, neck, chest, abdomen etc." Cross-examination of the PW-8 was declined. PW-6 Rekha Sadhukhan, a relation of the sister of the deceased, who had accompanied the sister of the deceased to the matrimonial house of the deceased in the night of 30th December, 1986 deposed, inter alia, as follows : "I accompanied by some other inmates of my house also went to the house of the accused after some time. I found burnt clothings in the house of the accused. I also found Kerosene oil mixed with water coming down the staircase." PW-13 Papia, the sister of the deceased corroborated the evidence of PW-6 and deposed as follows : "I found kerosene oil mixed with water streaminu, down the stair case." Dr. Santunu Haider (D.W) attached to R.G.Kar Medical College & Hospital who had examined the deceased in the Emergency Department deposed that he found 90% superficial burns on the person of the deceased. The history of the injury was recorded by him which was tendered on behalf of the defence and has been marked Exhibit-A which reads as follows : "According to patient party's statement when the victim was boiling the milk for the child, suddenly the sari caught fire on 30.12.1986 at around 12-30 A.M." Dr. Haider (DW-1) clarified that by the expression 'party' he meant the accused Dipankar Sadhu who had accompanied the victim to the hospital. The victim was hospitalized at 00.50 hours on 30th December, 1986 in the night. From the written complaint marked Exhibit-5 lodged at 1.45 a.m. on 30th December, 1986, it appears that the de facto complainant found the accused Dipankar in the matrimonial house of his daughter. This has also been deposed to by the PW-13 Papia, a sister of the deceased, who deposed that : "Accused and others came back from the hospital when I came Out of the house of the accused being asked by his mother to leave the house." This has also been corroborated by the accused during his examination under section 313 of the Cr.P.C in answer to question No. 16. Burnt pieces of clothings, we already have noticed, were seized by the police at 02.5 hours. Before that the accused had been taken into custody from his house. It is therefore firmly established that after hospitalizing the victim, the accused Dipankar without loosing any further time in the hospital straightaway carne back to his house when his wife was struggling with death and as a matter of fact, died in the morning. There are allegations in the written complaint that the accused used to physically torture the victim in her matrimonial house. He also had threatened to burn her down. The allegation of torture has been proved by the evidence of PW-1, Asoka, the maid servant who deposed that : "During my stay of two years' in the house of the accused I found him assaulting his wife often." The evidence of PW-1 that the accused resorted to assaulting the victim is evidenced by the evidence of the Autopsy Surgeon Dr. Saha (P.W- 19) who found the following injuries beside the burnt injury : "1. Haematoma 2 and 1/2" X 1" involving right parietal region of the scalp above right parietal eminance obliquely placed. 2. Multiple longitudinal incisions were made all over the body." The extent of burn suffered by the victim and found by the Autopsy Surgeon is as follows : "I. Darmo epiderma involving the whole area of face neck anterior chest wall anterior abdominal, wall back of chest and abdomen, right and left glutial region, pubic region, vulve and vaginal region, right and left upper extremities, lower extremities including medial aspect of the right and left soles, right and left breasts, burnt and singing of anterior and middle parts of the scalp hairs. Both the eye-brows and eye-lashes and pubic hairs." The Autopsy Surgeon opined that "The injuries were not inconsistent with homicidal infliction. The haematoma found by the on the head of the victim could have been caused if had she been hit with a hard and blunt substance." The entire cross-examination of the PW-19 is reproduced herein below : "The haematoma noted by me could have been caused if the top of the of the head of the victim had been hit against the concrete wall or any other hard substance. I recorded more than 90 per cent bum over the body of the victim." ;