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2007 DIGILAW 1 (CAL)

Jiten Besra v. STATE OF WEST BENGAL

2007-01-03

ALOK KUMAR BASU, PARTHA SAKHA DATTA

body2007
Judgment :- Alok Kumar Basu, J. Appellant Jiten Besra through a petition forwarded by the Superintendent, Midnapore Central Correctional Home has challenged his conviction under section 302 of the IPC and the consequential sentence of life imprisonment imposed against him by the learned Additional Sessions Judge, 1st Track Court, Purulia in connection with Sessions Trial No. 16 of 2003 corresponding to Sessions Case No. 11 of 2003. 2. Treating the petition of Jiten Besra as an application for admission of appeal, the present appeal was registered against the aforesaid order of conviction and sentence and Mr. R.B. Mahato, the learned Advocate from the senior panel with a junior of his choice was engaged to defend Jiten Besra at the time of hearing of the appeal. 3. The prosecution case which gave birth to the commencement of trial against Jiten Besra was that on 6th Jaisthya, 1404 B.S. corresponding to 20th May, 1997 Malati Besra, wife of Jiten Besra and daughter of deceased Nandalal Tudu and Mital Bala @ Jhilapi Tudu of village Tarakhun under P.S. Boro in the district of Purulia went to attend `Boul Song at about 10 p.m. at night along with her sister Parbati. 4. On the next day i.e. on 7th Jaisthya corresponding to 21st May, 1997 at dawn Malati found that both her parents were brutally murdered inside their room. Malati over the murder of her parents lodged a written complaint before the Officer-in-Charge, Boro P.S. and in the written complaint Malati alleged that one unknown miscreant might have killed her parents out of previous enmity and she requested for proper investigation so as to nab the culprit. 5. On the basis of written complaint of Malati, a specific case was started under section 302 of the IPC over the murder of both the parents of Malati and in course of investigation on the basis of evidence collected, a prima facie case was established against the present appellant Jiten Besra for murder of Nandalal and his wife and accordingly, charge-sheet was submitted. 6. The learned Additional Sessions Judge, on the basis of police papers and after hearing both prosecution and accused person, framed charge under section 302 of the IPC against Jiten Besra for the murder of both Nandalal and Mital Bala Tudu and appellant pleaded innocence and claimed for trial. 7. 6. The learned Additional Sessions Judge, on the basis of police papers and after hearing both prosecution and accused person, framed charge under section 302 of the IPC against Jiten Besra for the murder of both Nandalal and Mital Bala Tudu and appellant pleaded innocence and claimed for trial. 7. During trial, prosecution examined in all 15 witnesses and out of those 15 witnesses P.W.1 was Malati herself and P.W.2 to P.W.13 were people of the locality and P.W.14 was the doctor who conducted post-mortem examination over the dead body of Nandalal and Mital Bala, P.W.14 was the police officer who registered the case on the basis of written complaint of Malati and P.W.15 was part Investigating Officer. 8. The learned Additional Sessions Judge, after considering the prosecution evidence as a whole and after hearing submissions of both prosecution and the accused person, recorded his order of conviction holding inter alia that on the fateful night Jiten Besra came to the house of deceased Nandalal Tudu and finding both Nandalal Tudu and his wife asleep, Jiten Besra committed murder of both as he had strain relation with both of them. The learned Judge to reach his conclusion in support of the involvement of the appellant behind the murder of both Nandalal and Mital Bala relied on the statements of P.W.2 to P.W.13 who during their examination before Court disclosed that Jiten Besra was found in the village on the fateful night and all those witnesses noticed that wearing apparel of Jiten Besra was stained with blood. 9. The learned Additional Sessions Judge observed in his judgment that although there was no eye-witness of the occurrence and although FIR did not disclose the name of the appellant, but, subsequent collection of evidence by the investigating agency presented a complete chain of circumstances which taken together unerringly proved the guilt of the appellant beyond reasonable doubt. 10. Appearing for the appellant, the Senior Counsel Mr. R.B. Mahato while assailing the order of conviction and sentence has drawn our attention to the following points on the basis of fact and evidence available with the record: Mr. 10. Appearing for the appellant, the Senior Counsel Mr. R.B. Mahato while assailing the order of conviction and sentence has drawn our attention to the following points on the basis of fact and evidence available with the record: Mr. Mahato submits that in the FIR of Malati lodged before O.C. Boro P.S. soon after the occurrence, there was no whisper about the appellant and it was clearly stated in the written complaint of Malati that some unknown miscreants might have committed the murder and at the same time when inquest was held in presence of the appellant himself, nobody of the village including Malati made any statement implicating the appellant and naturally, involvement of appellant behind the murder of Nandalal and his wife seems to be an afterthought at the behest of the Investigating Officer when the Investigating Officer from the available evidence could not nab the real culprits. Mr. Mahato submits that this vital point which goes in favour of the appellant was totally ignored by the learned Trial Court; Mr. Mahato contends that it is found from the evidence of P.W.1 Malati that there was no door of the room where the couples were killed and naturally, the possibility of murder of the couple by unknown assailant could not be ruled out and this point was also ignored by the learned Trial Court. Mr. Mahato submits that the only evidence on which the learned Court banked heavily for recording the order of conviction was that of recovery of the wearing apparel of the appellant stained with blood, but, Mr. Mahato contends that when appellant was present at the time of inquest this point was not focused by any of the witness and the appellant during his examination under section 313 Cr. PC offered an explanation behind his blood-stained apparel and this explanation was quite natural and possible, but, the learned Judge did not take into consideration this explanation of the appellant at all; Mr. Mahato contends that sister of Malati who accompanied Malati to attend `Boul Song was not examined by the Investigating Officer and omission on the part of Investigating Officer to examine this vital witness speaks a volume against the veracity of the prosecution case sought to be established against the appellant; Mr. Mahato contends that sister of Malati who accompanied Malati to attend `Boul Song was not examined by the Investigating Officer and omission on the part of Investigating Officer to examine this vital witness speaks a volume against the veracity of the prosecution case sought to be established against the appellant; Mr. Mahato submit after analyzing the prosecution evidence that save and except the recovery of the blood-stained wearing apparel of appellant Jiten Besra, in fact, there was no other incriminating evidence against the appellant to hold it conclusively that appellant was responsible for the murder of Nandalal Tudu and his wife and from the evidence of prosecution it was clear that there might be strong ground for suspicion regarding involvement of the appellant, but, frankly speaking, there was total absence of legal evidence so as to warrant a conviction against the appellant in the strict sense of the law and that being the factual position, Mr. Mahato contends that it cannot be accepted that prosecution really succeeded in presenting a complete chain of circumstances which taken together would establish the guilt of the appellant beyond reasonable doubt and hence, the order of conviction and sentence recorded against the appellant should be set aside and the appellant should be acquitted of the charge of murder. 11. Mr. Amajit De appearing for the State respondent along with Mr. L.M. Datta strongly supported the judgment of the Trial Court contending inter alia that in proper appreciation of fact and evidence, the learned Trial Court rightly and legally recorded the order of conviction and sentence against the appellant. 12. Mr. De contends that it was true that there was no eye-witness to speak about involvement of the appellant behind the murder of Nandalal Tudu and his wife and it is also true that Malati P.W.1 while lodging the FIR did not express any suspicion against the appellant behind such murder. Mr. De contends that from the evidence of Investigating Officer P.W.15 we get under what circumstances Malati lodged the FIR and we further get that subsequent to filing of the FIR, Malati gave statement on discovery of new facts and in her subsequent statement Malati clearly stated that appellant was responsible for the gruesome murder of her parents. 13. Mr. Mr. De contends that from the evidence of Investigating Officer P.W.15 we get under what circumstances Malati lodged the FIR and we further get that subsequent to filing of the FIR, Malati gave statement on discovery of new facts and in her subsequent statement Malati clearly stated that appellant was responsible for the gruesome murder of her parents. 13. Mr. De contends that Malati in her subsequent statement disclosed that appellant was very much present in the village where the murder took place and Malati saw with her own eyes that wearing apparel of appellant was stained with blood. 14. Mr. De contends that P.W.2 to P.W.13 all the local people in one voice supported the prosecution case that appellant was found in the village on the fateful night and also on the next day after murder and there was stain of blood on the wearing apparel of appellant and on asking appellant could not give any explanation. 15. Mr. De contends that it is available from the statement of P.W.1 Malati and her other neighbours that both the parents of Malti were murdered inside their hut and there is nothing on record to indicate that the victims were murdered for stealing any household article from their hut and in that background the prosecution case assumes extra significance involving the appellant considering the fact that appellant had bitter relation with the parents of Malati and also with Malati and this has been supported by P.W.1 to P.W.13 in their statement both before the Investigating Officer and also before the Court during trial. 16. Mr. De contends that from the seizure list prepared by Investigating Officer on the next day of the occurrence it was clearly established that wearing apparel of appellant had mark of blood and it is very important to mention that during his examination under section 313 of the Cr.PC, appellant did not deny this, rather, he gave an explanation which was not acceptable to the learned Judge and in all probability, the explanation does not appear to be plausible one. 17. Thus, Mr. 17. Thus, Mr. De contends that when appellant had bitter relation with the victim and when appellant was found present in the village and when appellants wearing apparel was stained with blood and when there is no other ground to hold presence of a third party for commission of murder of Nandalal Tudu and his wife, the learned Trial Judge in proper appreciation of the circumstances of the case as gathered from different witnesses convicted the appellant and there appears no reason to interfere with the said order of conviction and sentence. 18. We have carefully considered submissions of both Mr. Mahato and Mr. De in the backdrop of prosecution evidence on record. We find from prosecution evidence as well as from the judgment impugned in this appeal that there was no eye-witness to depose against the appellant for his involvement behind the murder of Nandalal Tudu and his wife and, in fact, the learned Trial Judge relying on circumstantial evidence alone recorded the order of conviction. 19. On examination of the judgment of the learned Trial Court and also from the prosecution evidence we find that there were three strong circumstances against the appellant and those were bitter relation between appellant and the victims and also P.W.2 Malati who was wife of the appellant, presence of appellant at the village where murder took place and finally, wearing apparel of appellant had clear mark of blood. 20. Mr. Mahato submits that none of these circumstances can be considered so as to warrant an order of conviction in the background of the fact that in the FIR itself nothing was expressed indicating suspicion against the appellant and, that apart, the appellant offered an explanation regarding mark of blood appearing on his apparel and that explanation cannot be brushed aside. Mr. Mahato contends that even if from the above three circumstances there existed a strong suspicion against the appellant, that suspicion alone cannot be a ground of legal conviction, because, it is accepted position of law that suspicion, however, strong that may be cannot take place of legal proof and it is also accepted position of law that without sufficient and convincing legal proof, no person should be condemned by a Court of Law. 21. 21. The Investigating Officer P.W.15 in his evidence stated that although Malati did not indicate the name of appellant in her FIR, but, subsequently Malati gave a statement where she clearly stated that from the subsequent evidence which came to her knowledge she was sure that appellant was behind the murder of her parents. 22. Malati in her subsequent statement disclosed that although appellant was a resident of Manbazar far away from the village where murder took place, neighbours of the village found appellant present at the village on the fateful night and neighbours who also attended `Boul Song on the night when the murder took place found the appellant at the function. Malati also stated before I.O. that she found mark of blood in the wearing apparel of the appellant. 23. P.W.2 to P.W.13 in their evidence deposed that appellant was found at the village and all of them also found mark of blood on the wearing apparel of the appellant. 24. We find from the post-mortem report and also from the deposition of the doctor P.W.14 that victims received injury mainly on their face and neck and sharp-cutting weapon could have been used for causing such injury and we also find from the evidence of Malati that there was no light in the room where the murder took place and from these circumstances we have sufficient ground to hold that when murder was committed in the darkness, blood came out and that blood fell on the wearing apparel of the appellant. 25. The appellant in his examination under section 313 of the Cr.PC replied that as he became senseless and fell on the ground his wearing apparel became soaked with blood, this explanation of the appellant was of no value at all when we find that there was little blood on the ground where the murder was committed. 26. We have noticed from the examination of different witnesses including Malati that financial condition of the victim was extremely bad and naturally, there is no possibility of a story that some outsider with an object of stealing something would murder the victims and in such a background when we find from the unimpeachable evidence of the prosecution witnesses that appellant had bitter relation with the victims, the only reasonable possibility was that appellant had a definite motive in commission of the murder. 27. 27. Again, we find from evidence that although appellant was a resident of Malbazar far away from the village, he was found present at the village on the fateful night and when we take into consideration this fact along with presence of blood-stain on the wearing apparel of the appellant, there is no way for the appellant to escape the liability for the murder of the victims. 28. Thus, after considering submission of both Mr. Mahato and Mr. De and on careful examination of the prosecution evidence, we are of the view that the learned Trial Judge in proper appreciation of the fact and circumstances as available from prosecution evidence convicted the appellant for the murder of both Nandalal Tudu and his wife and we find no reason to call in question such conviction order either in fact or in law. 29. In view of our above discussion, we dismiss the present appeal preferred by Jiten Besra and we confirm his order of conviction and sentence under section 302 of the IPC. 30. Send the record of the Court below at once along with copy of this judgment for information and necessary action. 31. Send a copy of this judgment to the Superintendent of the Correctional Home where appellant Jiten Besra has been detained for his information. P.S. Datta, J.: I agree. Appeal dismissed.