Ashis Bag vs State Of West Bengal

This appeal which was initially filed by both the convicted persons in a case in which charge was framed for offences punishable under Sections 498A and 304B of the Indian Panel Code or, in the alternative, under Section 302 of the Indian Penal Code, now stands with only one appellant, the other having died.

The prosecution is that the victim and first accused, Ashis Bag, were married on 02-09-1991 and on 13-06-1996, she succumbed to 100% burn injuries. The trial Court examined various witnesses. However, only PW 1 to PW 8 were cross-examined. Request of the accused for adjournment for cross-examination of the other witnesses was turned down each time. The Executive Magistrate who is stated to have recorded a dying declaration from the hospital was not even examined on behalf of the prosecution. That person was examined as defence witness. Certain other persons whom the prosecution had given up were also examined as defence witnesses. Ultimately, the trial Court found that the offence punishable under Section 302 Indian Penal Code has been made out. Consequently, both the accused persons, the husband and the father-in-law of the victim were sentenced on that count. Hence, this appeal.

The father-in-law of the victim is no more and the appeal has abated insofar as it relates to him.

On behalf of the first appellant, who was indisputably the husband of the victim, learned counsel argued, among other things, that the trial of the case in hand is nothing short of travesty of justice inasmuch as the records of the case would disclose that request for adjournment for cross-examination made by the accused was time and again refused on and from the recording of evidence of PW 9. The uncontroverted testimonies of those witnesses have been used to enter conviction as if they are legal evidence though that was not put for scrutiny and subjected to cross-examination. That position notwithstanding it is further argued that the so-called dying declaration and evidence of the person who is said to have recorded the so-called dying declaration were not even part of prosecution materials before the Court below.

Learned counsel for the State argued that in the instant case, opportunities extended to the accused to cross-examine witnesses were not utilized and it cannot be treated as a case where due process has not been carried in terms of the Code of Criminal Procedure and practice regarding conduct of criminal trials in the Sessions Courts.

We have gone through the entire materials on record in the case including the evidence of the witnesses.

PW 1 and PW 3 are the brothers, PW 5 is the mother, PW 6 is the brother-in-law and PW 8 is a niece of the victim. The evidence of those witnesses are specifically being referred to by us because cross-examination was permitted only as regards PW 1 to PW 8. Whatever be the reasons attributed, the records disclose that the accused had cooperated with the trial Court and even if there was no representation through a lawyer of his choice, he ought to have been provided legal assistance at State expense. We also see from the records that attempt was made by the surviving appellant by requesting the Court below for such legal aid. The examination of witnesses from PW 9 onwards which includes the autopsy doctor and different other persons, were carried without any cross-examination. The postmortem certificate read along with the testimony of the autopsy doctor shows that the victim had suffered 100% burn injuries and had severe burn injuries even in her throat, neck and all vital parts and the entire surface of the body except a small portion of both the wrists and the waist. However, we have bestowed our anxious consideration to see whether even if the conviction is not sustainable under Section 302 IPC, it can be a case where we could alter the count and modify the conviction and sentence to be at least for offences punishable under Section 498A IPC. But the fact of the matter remains that the offence punishable under Section 302 IPC cannot be converted to one under Section 304B or under Section 498A since they are not offences which fall within the chain where the principle of tapering down could be applied. The necessary ingredients to sustain the allegation for an offence punishable under Section 498A and under Section 304B IPC are fundamentally different from those allegations on the basis of which a charge under Section 302 IPC would lie. The order of acquittal of the accused persons insofar as Sections 498A and 304B are concerned, remains unchallenged by the State. The High Court had also not issued any notice, at least in revisional jurisdiction, to interfere with such finding and order of acquittal.

For the aforesaid reasons, having found that the conviction and sentence imposed on the accused under Section 302 does not stand on the basis of materials on record, we allow this appeal and acquit the first appellant as regards whom alone this appeal survives.

The appeal is, thus, allowed. The conviction and sentence under appeal is set aside. The bail bonds shall stand discharged.

Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.