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2011 DIGILAW 577 (CAL)

Lotan Majhi v. The State of West Bengal

2011-04-25

J.N.PATEL, KANCHAN CHAKRABORTY

body2011
Judgment : J. N. Patel, C.J. This appeal is preferred by Lotan Majhi challenging his conviction and sentence to suffer rigorous imprisonment for life and also to pay a fine of Rs.1,000/- , in default, to suffer rigorous imprisonment for four months for having committed offence under Section 302 of the IPC by the Learned Additional Sessions Judge on his being tried for having committed murder by intentionally causing the death of her elder sister Kismat Majhi by beheading her with a ‘dao’. It is the prosecution’s case that on 26.01.1998 at about 9/9.30 a.m. the appellant-accused killed his elder sister Kismat Majhi at Gaya Ganga Tea Garden. Thereafter, he carried her severed head in one hand and ‘dao’ in another and was seen by several persons walking through the street followed by a crowd of 100/150 persons. He was noticed by Amal Ray (P.W. 1), a constable, who nabbed him and took him to the Phansidewa Police Station and lodged his report (Ext. 1). S.I. Biman Bose (P.W. 10) prepared the inquest report of the head and seized the ‘dao’ and blood stained clothes of the appellant-accused. On being interrogated, the appellant-accused led the police to his residence and therefrom to the place of occurrence where the body of Kismat Majhi, elder sister of the appellant-accused, was found lying in a pool of blood within the tea plants and an inquest was held. In course of investigation, police seized articles from the place of occurrence as well as recorded the statement of witnesses. The head and body were sent for postmortem examination and the articles were forwarded to the Forensic Science Laboratory. On completion of the investigation, charge-sheet came to be filed against the appellant-accused. The appellant-accused pleaded not guilty and claimed to be tried. During trial, the prosecution examined, in all, 11 witnesses and on completion of the trial, the Learned Additional Sessions Judge found the appellant-accused guilty and convicted and sentenced him to suffer imprisonment for life and fine. The learned counsel appearing for the appellant-accused submitted that the prosecution’s case rests on circumstantial evidence as there is no direct evidence led by the prosecution to prove that the appellant-accused committed murder of his elder sister. He further submitted that prosecution has not brought on record any motive of the appellant-accused to have committed such a ghastly crime. The learned counsel appearing for the appellant-accused submitted that the prosecution’s case rests on circumstantial evidence as there is no direct evidence led by the prosecution to prove that the appellant-accused committed murder of his elder sister. He further submitted that prosecution has not brought on record any motive of the appellant-accused to have committed such a ghastly crime. It is further submitted that at the most, the appellant-accused was found carrying the severed head of his elder sister and the ‘dao’, may be for reporting the matter to the police that his sister had been killed. It is also the contention of the learned counsel for the appellant-accused that the Trial Court erred in relying upon the so-called extra judicial confession wherein it is stated that the appellant-accused confessed of having killed his elder sister on which no reliance can be placed as the said extra judicial confession is made to a Police Officer, i.e., Amal Ray (P.W. 1), police constable, who nabbed the appellant-accused while he was seen carrying the head of his sister and ‘dao’. It is further pointed out that none of the witnesses has supported the discovery of the dead body in the tea garden and the medical and forensic evidence led by the prosecution do not help the prosecution’s case to prove that it is the appellant-accused who has committed the murder. Therefore, it is a fit case that the benefit of doubt can be given to the appellant-accused. On the other hand, the learned Public Prosecutor submitted that this is a open and shut case against the appellant-accused having committed murder of his elder sister by severing her head with a ‘dao’ and picked it up in order to offer it at the Kali Temple where he was found proceeding and intercepted by the police constable. Learned P.P. further submitted that the appellant-accused has not offered any explanation as to in what circumstances he came into possession of the head after it was severed from the body and how his clothes were stained with blood. It is further submitted that the appellant-accused not only confessed of having killed his elder sister but also led the police to the place where the body of his sister was lying in a pool of blood in the tea garden. It is further submitted that the appellant-accused not only confessed of having killed his elder sister but also led the police to the place where the body of his sister was lying in a pool of blood in the tea garden. It was exclusively within the knowledge of the appellant-accused and an additional link in the chain of circumstances. Therefore, the appeal deserves to be dismissed. Amal Ray, police constable C/2018, (P.W. 10) noticed the appellant-accused Lotan Majhi holding the severed head of a female in his right hand and a ‘dao’ in another, walking over the street followed by a group of 100/150 persons going towards the Kali Temple located at Phansidewa P.S. He then nabbed him and brought to the Police Station. S.I. Biman Bose (P.W. 1) who was on his duty at the Police Station received the written complaint (Ext.1) from him and prepared the inquest report (Ext.3). In order to ascertain the actual cause of death the decapitated head and all the papers are sent to the Head of the Department, F.S.M., North Bengal Medical College for performing the postmortem examination. Similarly, on discovery of the beheaded body of Smt. Kismat Majhi, another inquest report came to be prepared at the place of occurrence, i.e., at 13’B’ Section in Gaya Ganga Tea Garden where the dead body was found lying in bleeding condition which was also sent to the North Bengal Medical College to ascertain the actual cause of death. The body and the head came to be examined by Dr. Saibal Gupta (P.W. 7) who at the relevant time was a Professor and Head of the Department, F.S.M.N.B.M.C. and Hospital and he found the following injuries while conducting the postmortem examination :- “1) traumatic amputation of head with missing head at the level third survical vertebra. The cut end of the neck showed clean cut vessels, muscle and bon. All the injuries mentioned above showed evidence vital reaction. No ante mortem injury could be detected any where in the body even on careful examination and dissection. Death in my opinion was due to the effects of injuries ante mortem and homicidal in nature. This is the original p.m. prepared and signed by me Ext. 7. I also conducted one p.m. on 27.1.98 in connection with Phansidewa P.S. U.D. Case No. 3/98 dt.26.1.98 on the head of Smt. Kishmat Mazi, female, 25 years. Death in my opinion was due to the effects of injuries ante mortem and homicidal in nature. This is the original p.m. prepared and signed by me Ext. 7. I also conducted one p.m. on 27.1.98 in connection with Phansidewa P.S. U.D. Case No. 3/98 dt.26.1.98 on the head of Smt. Kishmat Mazi, female, 25 years. The head had been identified by constable No. 2018 A. Roy. Only head was found to be examined said to be of Kismat Mazi. The head had been separated from the rest of the body at third survical vertebra. It fitted with the beheaded body percetly vide reference no. Phansidewa P.S. U.D. Case No. 4/98 (P.S. Case No. 10/98). The cut end of the head showed clean cut vessels, muscle and bone. All the injuries mentioned above showed vital reaction. No other ante mortem injury could be detected anywhere in the head even on careful examination and dissection. Death in my opinion was due to the effects of injuries ante mortem and homicidal in nature. This is the original p.m. report prepared and signed by me (Ext. 8).” The defence declined to cross-examine Dr. Saibal Gupta (P.W. 7) and, therefore, there is no hesitation in arriving at a conclusion that Smt. Kismat Majhi’s death was homicidal in nature. The only point which arises for our determination in this appeal is whether the appellant-accused Lotan Majhi is the author of the crime. Amal Ray, Police Constable C/2018 (P.W. 1), was on UD duty and about 12.45 p.m. he noticed appellant-accused Lotan Majhi coming from the Western side and proceeded towards the Eastern side with a beheaded head in one hand and a ‘dao’ in another. He came near to him and asked him to go to the Police Station. Instead, the appellant-accused proceeded towards a Kali Mandir. Amal Ray (P.W. 1) then nabbed the appellant-accused and brought him to Phansidewa P.S where the appellant-accused came to be arrested and the blood stained wearing apparel of the appellant-accused came to be seized in his presence. He lodged a written complaint (Ext. 1) and inquest report (Ext. 3) was prepared. This fact of the appellant-accused being found walking with a head in one hand and ‘dao’ in other, followed by a group of 100/150 persons was also witnessed by Bipul Modak (P.W. 2) who is a tea stall owner, where Amal Ray (P.W.1) was taking tea. He lodged a written complaint (Ext. 1) and inquest report (Ext. 3) was prepared. This fact of the appellant-accused being found walking with a head in one hand and ‘dao’ in other, followed by a group of 100/150 persons was also witnessed by Bipul Modak (P.W. 2) who is a tea stall owner, where Amal Ray (P.W.1) was taking tea. He is also a witness to the seizure list. Abteruddin Md. (P.W. 3), Sankar Kr. Ghosh (P.W. 4) also witnessed the aforesaid incident. All these witnesses in their evidence before the Court stated that when police constable Amal Ray (P.W. 1) inquired from the appellant-accused, appellant-accused Lotan Majhi stated that had brought the head of his elder sister after beheading her which also finds reference in the first information report (Ext. 2) lodged by Amal Ray (P.W. 1). The learned Trial Court has taken this confession of the appellant-accused into consideration as an extra judicial confession. The learned counsel appearing for the appellant-accused has rightly objected such statement of the appellant-accused made to police constable Amal Ray (P.W. 1) and which also finds place in the FIR and also reiterated by the witnesses, is not admissible and hit by Section 25 of the Evidence Act. Section 25 of the Evidence Act totally excludes the evidence of confession made by an accused to any Police Officer under any circumstances while in their custody or not. Let us, therefore, exclude this part of the evidence given by Amal Ray (P.W. 1) and others and consider whether this can be taken note of as conduct of the accused subsequent to having killed the victim. The very fact that the appellant-accused was found carrying the head of his elder sister Kismat Majhi along with the ‘dao’ immediately after she was murdered and failure on his part to offer any explanation for the same, we can safely infer that it is the appellant-accused who had killed his sister with the ‘dao’ and was carrying her head along with the weapon of assault to Kali Temple. On the arrest of the appellant-accuse, he was interrogated by S.I. Biman Bose (P.W. 10) and as per the statement of the appellant-accused via the residence of appellant-accused Lotan Majhi, the police party went to Hawdavita to contact the relations and the villagers of the appellant-accused who then agreed to lead them to the place where the rest part of the body from which the head had been severed was lying. According to Biman Bose (P.W. 10), the appellant-accused then took the police party as well as Smt. Rugi Majhi (P.W. 9), the elder sister of the accused, Pradip Majhi, the husband of Rugi, Uma Sankar Roy, Darbaru Roy, the villagers to a place at Section No. 13’B’ in Gaya Ganga Tea Estate where they found the beheaded body of a female which was identified as the body of Kismat Majhi, the elder sister of Lotan Majhi. He also held an inquest of the said body in the presence of witnesses and prepared the inquest report (Ext. 4). He also seized articles at the place of occurrence like blood controlled earth and blood stained chappal etc. and also drew a sketch map of the place of occurrence along with the index (Ext. 10). Prosecution has examined Harihar Majhi (P.W. 6) who had accompanied the police to Gaya Ganga Tea Estate where the beheaded body was found. Though he was declared hostile as he refused to divulge the prosecution’s case but in cross-examination admitted that on 26.1.2998 at about 3.30 p.m., as disclosed by Lotan Majhi, he accompanied him by police jeep at Gaya Ganga Tea Estate where a beheaded body was found, but he could not identify the beheaded body. He had identified Lotan Majhi in the Court. Pradip Majhi (P.W. 8) who is brother-in-law of the appellant-accused Lotan Majhi, having married his elder sister Smt. Rugi Majhi (P.W. 9) was examined by the prosecution and in his deposition he has stated that police had come to their house accompanied by appellant-accused Lotan Majhi. Thereafter, appellant-accused Lotan Majhi led them to the place where the rest of the body of the victim was lying. Thereafter, police took away the body of the victim. Dr. Thereafter, appellant-accused Lotan Majhi led them to the place where the rest of the body of the victim was lying. Thereafter, police took away the body of the victim. Dr. Saibal Gupta (P.W. 7) in his evidence did opine and confirm that the head of Kismat Majhi was separated from the rest of the body at third survical vertebra and it fitted with the beheaded body perfectly. Smt. Rugi Majhi (P.W. 9), elder uterine sister of Lotan Majhi, supported her husband only to the extent that the police had come to their house along with Lotan and that she did not accompany Lotan but learnt the fact from the villagers who accompanied the police to the place where the body of her sister was found lying. Therefore, taking into consideration that the appellant-accused was found carrying the decapitated head of her elder sister and the ‘dao’ with blood all over his clothes and at his instance the beheaded body of the victim was found lying in the tea garden coupled with the fact that except for claiming to be innocent he has no explanation to offer conclusively goes to establish that the appellant-accused has killed his sister. This, according to us, is sufficient to establish the charge against the appellant-accused for having committed murder of his sister by severing her head with a ‘dao’. Therefore, we do not find any merit in the appeal. The appeal is dismissed.