Bapi Bagdi vs The State of West Bengal

Ashim Kumar Roy, J.—This criminal appeal is directed against a judgment and order passed in a sessions trial, where the appellant Bapi Bagdi was convicted under section 302 IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- and in default to suffer rigorous imprisonment for 2 years for having committed murder of his wife Gita Bagdi.

The FIR of the case was registered on the basis of a complaint in writing made to the local police station by the father of the victim Sankar Chandra Bagdi. In the said FIR, it was alleged that about 9/10 years back his daughter was given in marriage with the appellant and in their said wedlock two male children were born, who are aged about 9/10 years. On the previous day at about 11.30 p.m. she was admitted at Bankura Sammilani Medical College and Hospital with burn injuries and succumbed to her injury on that day. Her husband Bapi Bagdi was responsible for the occurrence.

Although the FIR was registered for the offences punishable under section 498A/306 IPC but after completion of investigation charge sheet was submitted under section 498A/302 IPC. In the trial the appellant was charged under section 498A/302 IPC and was finally convicted under section 302 IPC and was acquitted for the offence punishable under section 498A IPC.

To establish the charge against the appellant the prosecution examined as many as 15 witnesses, while defence examined none and it was the specific defebce case that she set her on fire for some unknown reason and the appellant is innocent.

On perusal of evidence on record we find out of total 14 witnesses, the key witnesses are PW/3 Ramesh Bagdi and PW/6 Suresh Bagdi @ Chotu, the sons of the petitioner, who were present at the house at the time of occurrence. The other vital witnesses are the next door neighbour of the appellant PW/2 Ranu Bagdi and PW/5 Jayanti Bagdi. However, during the trial all of them were declared hostile by the prosecution. Out of the remaining witnesses, PW/1 Sankar Chandra Bagdi was the father of the victim, PW/7 Kartick Bagdi, brother of the victim, PW/8 Usha Bagdi, aunt of the victim, PW/9 Uma Rani Bagdi, the mother of the victim and PW/10 Anath Bagdi, uncle of the victim. None of these witnesses however has any direct knowledge as to the occurrence and according to them, they are residing at the nearby places and having received the information about the incident, they rushed to the spot and removed the victim to the hospital. The PW/4 Debdas Bagdi although supported the case of the prosecution that during her lifetime Gita was tortured by her husband but disclaimed his direct knowledge about the incident of fire, i.e., how she caught fire. PW/11 is a police constable, PW/12 is the investigating officer of the case, PW/13 is the police personnel and PW/14 is the post-mortem doctor.

We find from the evidence of both her sons PW/3 Ramesh Bagdi and PW/6 Suresh Bagdi @ Chotu Bagdi that both of them were present at the scene of occurrence i.e. at their house, when the incident of fire took place. We find they were aged about 10 years and 8 years at the time of occurrence. During the trial, the trial court before recording of their evidence put to them several questions to ascertain their capacity to depose as witness from their capacity to understand the question and give rational answer. We further find the evidence of both the sons are identical. According to them........"on that day my mother with my brother and me was watching T.V. inside our room. All of a sudden my mother got up from her seat and went outside the room and locked the door from outside by fastening the small chain used for locking door. Next my mother poured kerosene oil on her body and set herself on fire. I saw this through the gap of the door. My mother raised no hue and cry. Prior to the death of my mother, myself, my brother used to reside with our parents. Thereafter they raised hue and cry and local people came to the place rescued their mother, removed her to the hospital". Although PW/3 Ramesh Bagdi admitted that he was examined both by the police and a Judicial Magistrate but PW/6 Suresh Bagdi @ Chotu Bagdi claimed that he was never interrogated by the police but narrated everything to a Judicial Magistrate. After their such evidence, both of them were declared hostile on the prayer of the prosecution and prosecution was permitted to cross-examine them. During the cross-examination by the prosecution, both the witnesses denied that they stated before the police there was a quarrel between their parents and during such quarrel, the father mercilessly assaulted their mother and after pouring kerosene oil on her, set her on fire. Both the witnesses during their cross-examination by the defence claimed that after the incident they were taken to their house by their maternal grandmother and they stayed there for 20 days. It was further claimed that at that time both their maternal grandfather and grandmother tutored them to say before each and every person that their father set their mother on fire and being so tutored they made their statements before the Magistrate.

According to the provision of section 154 of the Evidence Act, the court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. A party presents a witness in the court for his or her examination presumably because to it such a witness is a trustworthy witness and such witness shall speak the truth and unfold the actual incident and that is the precise reason why a party is normally not permitted to cross-examine his own witness. The above provision is a departure from such rule. If a witness turns hostile that is if he or she resiles from and denies his or her statement made to a person legally authorise to record such statement like police under section 161 CrPC and a Judicial Magistrate under section 164 CrPC and does not support the case of the party who calls him, then with the permission of the court such witness can be cross-examined to impeach his credit. The credit of a witness can be impeached in the manner as provided under section 155 of the Evidence Act. To impeach the credit of any witness by the party calls him, it is not enough to declare such witness hostile with the consent of the court and then to confront him or her with their earlier statement, the credit of such witness can said to be impeached only when his or her former statement earlier recorded is proved inconsistent with any part of his or her evidence which is liable to be contradicted, by examining the person who recorded such statements.

In other words, in a criminal case, the entire exercise to impeach the credit of its own witness by the prosecution, involves firstly to declare such witness hostile with the consent of the court and then to cross-examine him or her by putting leading question with a view to confront such witness with reference to his earlier statement and secondly to examine the person who recorded such former statement to prove inconsistency between the same. In the event, a witness is declared hostile by the prosecution and then such witness is confronted with his or her former statement by the prosecution and the witness denied to make any such statement but the person recorded the former statement is not examined with reference to such statement, the inconsistency between those two statements is not proved in the eye of law and the credit of such witness cannot be said to be impeached.

In the case at hand, although both Ramesh Bagdi PW/3 and Suresh Bagdi @ Chotu Bagdi PW/6 were declared hostile and then were cross-examined by the prosecution with reference to their former statement made to the police and they denied to have made such statement but the investigating officer of the case (PW/12) was never examined by the prosecution with reference to such inconsistencies. Consequently, the evidences of these two witnesses in chief remain unimpeached and even though they were formally declared hostile, their evidence in chief can very much be utilised by the defence to prove the innocence of the accused. Accordingly, we do not find any valid reason to disown the statement of sons of the victim to hold that it was not the appellant who set the victim on fire after an alleged quarrel but the victim while watching T.V. for the reason best known to her went out and pouring kerosene oil on her person set her on fire.

It be noted the statements of both PW/3 and PW/6 were recorded under section 164 CrPC by PW/15, a Judicial Officer, but none of those two witnesses was cross-examined by the prosecution with reference to their former statements recorded under section 164 CrPC. Although it assumes no importance after above findings still it be noted the prosecution has also not proved the inconsistency between the former statements recorded under section 164 CrPC with any part of the statement made by those witnesses in their examination in chief to contradict the same.

There are two more witnesses viz., Ranu Bagdi PW/2 and Jayanti Bagdi PW/5, both are close neighbour of the appellant, were also declared hostile. However, so far as they are concerned to confront their evidence in chief, the prosecution examined investigating officer of the case PW/12 to prove their former statements. Only thing that remains not contradicted is this that victim caught fire on the fateful night at her matrimonial home and they being attracted by the hue and cry raised by her two children rushed to the spot.

According to PW/4 Debdas Bagdi, a neighbour, PW/9 Uma Rani Bagdi, mother of the victim and PW/10 Anath Bagdi, her uncle, while the victim was removed to the hospital she disclosed to them that she was set on fire by the appellant.

Witness Debdas Bagdi (PW/4) admitted in his evidence that he was never interrogated by the police and whatever he deposed, in his evidence it was disclosed for the first time. In view of such, we do not incline to rely on his evidence.

Coming to the evidence of PW/9 Uma Rani Bagdi and PW/10 Anath Bagdi, we find that on the very night the victim disclosed to them how she caught fire and they removed the victim to the hospital and on the next morning around 8 a.m., the victim succumbed to her burn injuries and thereafter PW/1, the father of the victim, after receiving the news of her death, lodged the FIR on the same day at 21.15 hrs. i.e. at 9.15 at night. However, in the FIR there is no whisper about such dying declaration although the maker of the FIR had enough time to be conveyed about the same by his wife PW/9 Uma Rani Bagdi and his brother Anath Bagdi.

In this case, the victim after the incident was admitted at Bankura Sammilani Medical College and Hospital and was treated there for 8 hrs., but PW/12, the investigating officer of the case has admitted in his evidence that the emergency ticket and bedhead ticket of the victim was not seized. We are, therefore, unable to know what was the history of the case noted therein, whether the victim was in a position to speak or not. This act of the investigating officer of the case certainly gives rise to an adverse presumption under 114(g) of the Evidence Act against the prosecution.

The prosecution case that before her death she was regularly subjected to torture by the appellant has not been proved and appellant has been acquitted of the charge under section 498A IPC.

We find from the evidence of autopsy surgeon PW/14 Dr. Swapan Kumar Bhowmick that in his chief he claimed the possibility of homicide may not be ruled out considering the nature of injuries. At the same time and at the end of his cross-examination the same witness admitted that from the nature of the burn injuries sustained by the victim, the possibility of the suicide may not be ruled out. Therefore, the medical evidence as to the cause of death is contradictory and inconsistent.

In view of above, we are of the opinion the case against the appellant has not been proved beyond shadow of doubt. Accordingly, the order of conviction is set aside and the appellant, who is in custody, at once be released, if not detained in connection with any other case.

Office is directed to communicate this order to the trial court and to send down the Lower Court Records.

Urgent Xerox certified copy of this judgement be given to the parties, if applied for, as early as possible.

Malay Marut Banerjee, J.—I agree.