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2014 DIGILAW 359 (CAL)

Mondal Baskey v. State of West Bengal

2014-04-17

NISHITA MHATRE, TAPASH MOOKHEREJEE

body2014
JUDGMENT Nishita Mhatre, J. 1. The appellants have preferred this appeal against the decision of the Additional Sessions Judge, Malda in Sessions case no.63 of 1997. They have been convicted under Section 302 read with 34 of the IPC. Appellant no. 1 is also convicted under Section 323 of the IPC. They have both been sentenced to suffer imprisonment for life and payment of fine of Rs.5000/- each. In default of payment of fine they have been directed to suffer rigorous imprisonment for a further period of six months. Appellant no. 1 has been sentenced to suffer rigorous imprisonment for three months for the offence punishable under Section 323 of the IPC. Both the sentences are to run concurrently in the case of appellant no. 1. 2. The scourge of witch-hunting which plagues certain sections of our society has been brought to the fore in this case. The mindless killing of a woman who is suspected to be a witch is reflected from facts which are on record. 3. The case of the prosecution is that Dhenu Hembram, the complainant, his wife, Rani Kisku and their two children were sleeping in the verandah of their house, adjacent to the room on the eastern side. His mother, Fulmoni was sleeping in the verandah on the southern side of the room. The complainant heard the sound of the make shift screen (Jhap) of split bamboo and he saw that the appellant no. 1 was aiming to hit his mother with a stick (lathi). The complainant caught the stick and there was a scuffle between him and the appellant no. 1. The complainant received injuries on his head, chest and right hand. From the courtyard the complainant saw the appellant no. 2 inflict a blow with an axe on his mother. Appellant no. 1 also hit the complainant’s mother on the head with a lathi. The complaint then cried out aloud. Many villagers gathered there while the two appellants fled away. This incident occurred, according to the complainant, at 11 p.m. as one of the villagers had checked his wristwatch at that point of time. The complainant claimed that his mother’s skull was broken and cut with deep injuries which were bleeding. According to the complainant, the wife of appellant no. 2 suffered from various diseases. Appellant no. This incident occurred, according to the complainant, at 11 p.m. as one of the villagers had checked his wristwatch at that point of time. The complainant claimed that his mother’s skull was broken and cut with deep injuries which were bleeding. According to the complainant, the wife of appellant no. 2 suffered from various diseases. Appellant no. 2 and his brothers and other villagers went to the ‘Palia Mahan’ of the village to ascertain why she was inflicted by such diseases. Fifteen days prior to the incident, they were informed by this ‘Palia Mahan’ that Fulmoni Soren was a witch (Fuksin). According to the prosecution, appellant no. 2 threatened to kill the deceased by way of punishment as she was the root of the evils suffered by his wife. He then left for his father-in-law’s house in Bishanpur village. The appellants were arrested and thereafter committed for trial before the Sessions Court. They were charged with having murdered Fulmoni on 28th March, 1989 at 11 p.m. and of causing hurt with an axe to Dhenu Hembram, the complainant in this case. 4. The prosecution has examined 8 witnesses to prove the charges levelled against the appellants. PW 1 Dhenu Hembram is the complainant who had lodged the FIR. He has reiterated the contents of the FIR. According to him, the appellant no. 2 struck a blow on his mother’s head with an axe as result of which she died immediately. He has further stated that he sustained injuries because of the assault by appellant no. 1 on him. He has also mentioned that after he raised a hue and cry some villagers came running to their house, before which the appellants fled away. According to this witness, he was able to identify the appellants in the moonlight. He has stated that he reported the incident to the police the following morning at 9 a.m. His statement was recorded by the police and he was referred to the hospital for medical treatment. The police then reached the scene of offence, held an inquest after he had identified the dead body of his mother. In his cross-examination PW 1 has admitted that he was able to ascertain the time of the incident from the wall-clock in his house. He has repeated in his cross-examination that he had informed the Investigating Officer that he saw the appellant no. In his cross-examination PW 1 has admitted that he was able to ascertain the time of the incident from the wall-clock in his house. He has repeated in his cross-examination that he had informed the Investigating Officer that he saw the appellant no. 2 strike his mother with an axe. The witness has reiterated that his wife and he saw the incident. 5. PW 2 is a neighbour of the complainant PW 1. He has stated that he rushed to the house of the PW 1 after hearing the hue and cry, and found the mother of PW 1 lying dead on the verandah and PW 1 with injuries on his right hand and head. According to this witness, PW 1 told him that the appellants had murdered his mother and assaulted him. In his cross-examination he has admitted that he was not examined by the Investigating Officer. 6. PWs 3 and 4 are villagers who allegedly rushed to the spot on hearing cries of PW 1. However, both these witnesses have been declared hostile. 7. The next witness examined by the prosecution is PW 5, the wife of PW 1. She has corroborated the version of the incident narrated by her husband. She has stated that she could identify the appellants in the moonlight and that they fled from the scene of offence before the villagers could arrive there after hearing the alarm raised by her husband and herself. This witness has also mentioned the appellants’ motive for killing the victim. She has said that they suspected the victim to be a witch. In her cross-examination she has admitted that she told the Investigating Officer that they did not inform the villagers of the incident when they gathered there, but sought their advice on the further course of action. 8. Thus the testimony of both PW 1 and PW 5 has not been shaken in the cross-examination. They have reiterated the story that they awoke because they heard a noise of the makeshift screen of split bamboo to the verandah of their house. They saw the appellant no. 2 strike the first blow on the head of the deceased and appellant no. 1 injured PW 1 and also struck a blow on the head of the deceased with a lathi. Both these witnesses have stated that they were able to identify the appellants in the moonlight. 9. They saw the appellant no. 2 strike the first blow on the head of the deceased and appellant no. 1 injured PW 1 and also struck a blow on the head of the deceased with a lathi. Both these witnesses have stated that they were able to identify the appellants in the moonlight. 9. The ocular testimony has been supported by the medical evidence on record. PW 8 is the doctor who conducted the post mortem examination on 30th March, 1989 of the victim. He has described the wounds sustained by the victim in the following manner: (1) One V shaped lacerated wound 9” x 4” x deep to scalp bone on the forehead. (2) One V shaped lacerated wound 1 x ½ x deep to scalp bone on the right maller prominent of the face. (3) One V shaped lacerated wound 1” x 4” deep to bone on the side of the nose. Fracture fronto parietal bone. Fracture nasal bone, fracture right maxilla membrane lacerated, brain lacerated, stomach contained half digested food particles ounce 3. All internal organs pale blooder empty. The doctor has opined that the death occurred between 10pm and the midnight of 28th March, 1989. According to the Doctor, the injuries were caused by a blunt heavy weapon and the cause of death was due to the homicidal injuries. He has, in his cross-examination, stated that he did not find any “defence cut injury on the body of the deceased.” 10. PW 6 is the Constable who took the dead body to the morgue. PW 7 is the Investigating Officer who submitted the charge-sheet. The earlier Officer who was in charge of the investigation had expired, after which PW 7 was appointed. He has admitted in his cross-examination that he did nothing else besides filing charge-sheet in this case. 11. Mr. Bhattacharya, the learned Counsel appearing for the appellants, has submitted that the evidence on record does not establish the identity of the appellants as the assailants in this case. He submitted that it would have been impossible to identify the appellants in the darkness of the night when the incident allegedly occurred. Therefore, urged the learned Counsel, it is unreasonable to say with certainty that it was they who were responsible for the death of the victim. 12. He submitted that it would have been impossible to identify the appellants in the darkness of the night when the incident allegedly occurred. Therefore, urged the learned Counsel, it is unreasonable to say with certainty that it was they who were responsible for the death of the victim. 12. Suggestions were put to PWs 1 and 5 in the cross-examination that they had not been able to identify the appellants as it was a dark night. However, both PW 1 and PW 5 have stated that the incident occurred at 11 p.m. and they were able to identify the persons in the moonlight. The Sessions Court has found from the almanac produced in Court that there was a full moon on 22nd March, 1989. Therefore, on 28th March, 1989 the moon would have been waning. There would be sufficient light for a person who is familiar with another to identify him by his voice, gait and speech. In the case of Shyamrao Vishnu Patil v. State of Maharashtra and Another reported in 1998 Cri.L.J. 3446 the Division Bench of the Bombay High Court, by relying on the judgment of the Supreme Court in the case of Kripal Singh v. State of U. P. reported in AIR 1965 SC 712 has held that in case of known persons the existence of light is not essential for their recognition. A known person can be recognised by his gait, timber of voice etc. Similarly, in the case of Dalbir Singh v. State of Haryana reported in 2008 AIR SCW 3957 the Supreme Court has held that although it may be difficult in some cases to identify a person in a dark night but if the person is acquainted and closely related to another, the identification is possible from the manner of speech, gait and voice. The evidence in this case reflects that PWs 1 and 5 knew the appellants. Therefore there was no reason for them to fail to identify the appellants, especially since it was a moonlit night, albeit, not a night with a full moon. 13. Mr. Bhattacharya, then submitted that there was no consistency in the prosecution case about the manner in which the victim was assaulted. He pointed out that while the charge framed against the appellants consisted of two charges, the first charge against the appellants of having murdered Fulmoni does not mention the weapon used by them. 13. Mr. Bhattacharya, then submitted that there was no consistency in the prosecution case about the manner in which the victim was assaulted. He pointed out that while the charge framed against the appellants consisted of two charges, the first charge against the appellants of having murdered Fulmoni does not mention the weapon used by them. Similarly, according to the learned Counsel, the second charge of voluntarily causing hurt to Dhenu Hembram with an axe is belied from the evidence on record. He has drawn our attention to the FIR which mentions that an axe was used while PW 1 has spoken about a hasua being the weapon deployed to inflict the fatal blow on his mother. The weapon seized is a dao, much larger in size than a hasua, pointed out the learned Counsel. He then submitted that the investigation in this case has been deplorable as the blood stains on the weapon recovered have not been sent to the Forensic Science Laboratory for analysis to ascertain whether they match with the blood of the victim. 14. As regards the identity of the weapon used, though PW 1 had identified it as a hasua, he has not been confronted with the fact that a dao had been recovered at the instance of the appellant no. 1. In the evidence recorded, the weapon mentioned used for inflicting the injury is described as an axe. However the F.I.R. which is recorded in Bengali mentions hasua as the weapon used by the assailants and it has been translated into English as ‘axe’. This translation of the word hasua is incorrect. The seized weapon indicates that it was a dao with a wooden handle. The hasua and dao are similar in shape. However the dao is relatively larger than a hasua. It is possible that PW1 was mistaken about the size of the weapon because of the darkness and therefore used the term hasua. The analysis of the blood on the weapon indicates that it was human blood. In our opinion therefore the prosecution has established the instrument used for assaulting the victim. 15. As we have already stated, PW 1 has reiterated the contents of the FIR. We do not find there are any material omissions or embellishments in his testimony. PW 1 has said in his complaint that it was a moonlit night when his mother was killed. 15. As we have already stated, PW 1 has reiterated the contents of the FIR. We do not find there are any material omissions or embellishments in his testimony. PW 1 has said in his complaint that it was a moonlit night when his mother was killed. In his evidence he has mentioned that he was able to identify the appellants in the moonlight. PW 5 has corroborated the testimony of PW 1 in all material respects including the fact that the identification of the accused was possible in the moonlight. We have no reason therefore to disbelieve the evidence of PWs 1 and 5. The medical evidence supports the ocular testimony of PWs 1 and 5. The doctor who performed the post mortem examination, has described the injuries sustained by the victim being ‘V’ shaped lacerated wounds which were deep and had sunk into the skull bones on the forehead. There were fractures of the nasal bone and the fronto parietal bone. The inquest report indicates that there was a deep bleeding injury on the skull of the victim. The inquest report also indicates that on a preliminary enquiry it came to light that the appellants had attacked the deceased with a hasua and lathi. The prosecution has thus been able to prove its case. 16. The next substantial point raised by the learned Counsel for the appellants is that the Investigating Officer was not examined as a witness in this case. According to him, this is a vital flaw in the case of the prosecution and therefore the decision of the Sessions Court must be set aside. The evidence on record indicates that the person who investigated the crime had expired before the charge-sheet was submitted. In these circumstances, PW 7 submitted the charge-sheet to the Court after which the trial began. The contention on behalf of the appellants that the non-examination of the Investigating Officer is fatal to the prosecution case cannot be accepted. In the case of Raj Kishore Jha v. State of Bihar and Others reported in 2004 SCC (Cri) 212 the Supreme Court has observed that the non-examination of the Investigating Officer does not affect the credibility of the prosecution case. In the case of Raj Kishore Jha v. State of Bihar and Others reported in 2004 SCC (Cri) 212 the Supreme Court has observed that the non-examination of the Investigating Officer does not affect the credibility of the prosecution case. The Supreme Court reiterated its view taken in Ram Dev v. State of U. P. reported in 1995 Supp (1) SCC 547 that unless there is material on record to show that the non-examination of the Investigating Officer has prejudiced the case of the appellants, the criminal trial is not vitiated on this account. This view was restated in the case of Bahadur Naik v. State of Bihar reported in (2000) 9 SCC 153 where the Supreme Court has observed that the non-examination of the Investigating Officer as a witness is of no consequence if the credibility of the eye-witnesses is not shaken before the Court. As we have already noted that it was not a deliberate act on the part of the prosecution to not examine the Investigating Officer. The Investigating Officer had died due to which charge-sheet was submitted by PW 7. In these circumstances, in our opinion, the credibility of the case of the prosecution has not been shattered. Moreover, no prejudice has been shown to be caused to the appellants for not examining the Investigating Officer. Besides, the version of PW 1 and PW 5 is believable. 17. There was no motive on the part of the prosecution or the witnesses to falsely implicate the appellants. No evidence has been placed on record to indicate that the prosecution witnesses bore any animosity towards the appellants due to which they implicated them. The testimony of PW 5 indicates that the appellants suspected that the victim was a witch which motivated them to kill her. 18. In our opinion the evidence on record satisfactorily proves that the appellants have committed the heinous crime alleged against them. The Sessions Court has marshalled the facts and the evidence on record correctly. It has appreciated and analysed the evidence in accordance with law and has rightly concluded that the prosecution had proved its case against the appellants. In our opinion therefore there is no need to interfere with the decision of the Sessions Court. The conviction of the appellants and the sentences imposed are upheld. 19. The appeal is dismissed.