Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 586 (CAL)

Jiarul Mallick v. State of West Bengal

2014-07-04

NISHITA MHATRE, TAPASH MOOKHERJEE

body2014
JUDGMENT Tapash Mookherjee, J: The judgment and order of conviction and sentence under Section 302 passed on 30.07.2008 and 31.07.2008 by the learned Additional Sessions Judge, Fast Track Court-II, Krishnanagar, Nadia, in Sessions Trial No.- IV of August 2007 (Sessions Case No. 13th of July, 2007) finding thereby the Appellant guilty of the offence punishable under Section 302 I.P.C. and sentencing the Appellant to suffer imprisonment for life and to pay a fine of Rs. 5,000.00 (rupees five thousand only) I.D. to suffer R. I. for one year, is under challenge in the present appeal. 2. The prosecution’s case stated in brief, is as follows:- 3. On 25.02.2007 one Abul Sheikh of village Haripurpara under P. S. Kaligaunge, District Nadia, submitted a written complaint at Kaligaunge Police Station and stated therein that on that very day at about 05.30 p. m. in the evening, when he was present in the house of Siraj Mallick, the father-in-law of his son, he found the Appellant assaulting the said Siraj Mallick and Siraj Mallick’s wife Haziba Bibi with a ‘Ram-Dao’, in the courtyard of the house of the said Siraj Mallick. The assaults were so serious that Siraj Mallick died on the spot and his wife Haziba Bibi died on the way to the Hospital. It is further stated in the complaint that the Appellant had some disputes with his father Siraj in connection with Siraj’s properties and the incidents of murder were the sequel of the aforesaid disputes. 4. Kaligaunge P. S. Case No. 42 of 2007 dated 25.02.2007 under Section 302 I. P. C. had been started against the Appellant on the basis of the aforesaid written complaint. 5. Investigation started and after completion of investigation charge-sheet under Section 302 I. P. C. had been submitted against the Appellant. 6. After submission of charge-sheet the case had been committed to the Court of Sessions Judge, Nadia from where the case had been ultimately transferred to the Court of Additional Sessions Judge, Fast Track Court-II, Nadia for trial. 7. Considering the materials collected during investigation charge under Section 302 I. P. C. had been framed against the Appellant. The Appellant denied the charge and pleaded his innocence. It was also a specific case suggested by the defence to several witnesses that it was not the Appellant but some miscreants who killed Siraj Mallick and Siraj Mallick’s wife near the local bus stand. The Appellant denied the charge and pleaded his innocence. It was also a specific case suggested by the defence to several witnesses that it was not the Appellant but some miscreants who killed Siraj Mallick and Siraj Mallick’s wife near the local bus stand. 8. To prove the charge prosecution examined as many as 18 witnesses and proved some documents as well. Some materials has also been admitted in evidence for the prosecution. Defence tendered no evidence whatsoever. 9. Considering the evidence on record learned Trial Court found the Appellant guilty of the charge of murder and sentenced the Appellant to suffer imprisonment for life and to pay a fine of Rs. 5,000.00 (rupees five thousand only) I. D. to suffer R. I. for one year. 10. The only contention of the learned Counsel for the Appellant was that the case proved by the prosecution was not a case of murder under Section 302 of I. P. C. but a case of culpable homicide not amounting to murder under Section 304 part one or part two. He explained his views by saying that the victim Siraj Mallick was the father and the victim Hafiza Bibi was the stepmother of the Appellant Jiaul Mallick and because of the 2nd marriage of his father the Appellant Jiaul was deprived of usual love and affection from his father since his boyhood and thus a sense of deprivation developed in the mind of the Appellant which ultimately turned into a huge anger and hostility in the subconscious mind of the Appellant which had been further aggravated by the act of the Appellant’s father depriving the Appellant of the Appellant’s share in property. According to the learned Advocate for the Appellant the aforesaid circumstances ultimately resulted in grave and sudden provocation due to which the Appellant suddenly killed both of his father and step-mother. So, the case does not fall within the definition of ‘murder’ and the case is covered by the exception one to Section 300 defining the offence of murder. 11. In reply, learned Counsel for the Respondent/State argued that the view of the learned Counsel for the Appellant is absolutely wrong because it is not proved in the case that the victim Siraj Mallick, i. e., the father of the Appellant never had any parental love, affection or care towards the Appellant. 11. In reply, learned Counsel for the Respondent/State argued that the view of the learned Counsel for the Appellant is absolutely wrong because it is not proved in the case that the victim Siraj Mallick, i. e., the father of the Appellant never had any parental love, affection or care towards the Appellant. The case of the victim Siraj Mallick depriving the Appellant of his property is not also proved in any way. So, the theory of provocation by the deceased Siraj Mallick to the Appellant has no basis whatsoever, and the fact being so, the learned Trial Court had rightly convicted the Appellant of the offence of murder since the offence have been proved by strong and cogent evidence produced by the prosecution in the trial. 12. Abul Sheikh (P. W.-1) is the father-in-law of the victims’ daughter. Abul Sheikh stated in his evidence that on the day of the incident he was in the house of the deceased Siraj Mallick and during his presence there, at about 5.30 p. m. the Appellant assaulted his father Siraj Mallick and his step-mother Haziba Bibi by a ‘Ram-Dao’ in the courtyard of the house of Siraj Malalick. He stated further that due to such assault Siraj Mallick died on the spot and Haziba Bibi sustained serious injuries and that on the way to Hospital Haziba Bibi died. Abul Sheikh also stated that he himself witnessed all those incidents and after the incidents he shifted Haziba Bibi to Katowa Hospital. 13. Laila Bibi (P. W. -2) is a daughter of the victims. She stated that the incident took place in her parental house. She stated further that in the afternoon of the incident she got an information in her matrimonial house that her parents had been killed by the Appellant and that after receiving the information she rushed to her parental house and found her father lying dead and her mother still alive but fighting against death due to huge injuries in the abdomen. P. W. – 2 added further that she found some women of the locality covering the wound in the abdomen of her mother by clothes and on asking her mother told that the Appellant assaulted both her parents and fled away. P. W. – 2 added further that she found some women of the locality covering the wound in the abdomen of her mother by clothes and on asking her mother told that the Appellant assaulted both her parents and fled away. P. W.- 2 also stated that her minor child was inside the house and on advice by her dying mother she rushed to her minor son Yunus to take care of him. 14. Yunus Sheikh (P. W.-3) was a 5/6 year-old-child. He was the grandson of the victims. After examining P. W. -3 by some controlled questions, learned Trial Court was convinced regarding the competency and appending a certificate to that effect, recorded the statement of P. W.-3. P. W.-3 stated that his ‘Nana’ and ‘Nani’ were killed by his ‘Jiar Mama’ (Appellant). However, according to him he was inside the house when the incident took place. 15. Rafija Bibi (P. W.-10) is a near relation of the victims. She stated that in the afternoon of the incident having heard the cries of P. W.-3 she rushed to the house of the victims where she found the victim Siraj Mallick lying dead by the side of the fencing of the house and victim Haziba Bibi lying seriously injured. She stated further that on her asking Haziba Bibi stated to her that Haziba was assaulted by the Appellant. She further stated that she found Naima Bibi covering the wound in the body of Haziba Bibi by a cloth. 16. Naima Bibi (P. W.-14) is a sister of the victim Siraj Mallick she stated that in the afternoon of the incident having heard a hue and cry in the village, she rushed to the house of the victims and found the victim Siraj Mallick lying dead near to the fencing of the house with injuries and the victim Haziba Bibi lying under a coconut tree in the house, in injured condition. She further stated that the victim Haziba Bibi asked for her help and having gone close to Haziba Bibi she found that the intestinal coil came out of the abdomen of Haziba Bibi and she herself pushed the intestinal coil inside the abdomen of Haziba Bibi and covered the wound with a cloth. She added further that on her asking Haziba Bibi told that the Appellant had assaulted her, holding her (Haziba Bibi) face. 17. She added further that on her asking Haziba Bibi told that the Appellant had assaulted her, holding her (Haziba Bibi) face. 17. Najina Bibi (P. W.-13) is a co-villager of the victims. She stated that on the day of the incident hearing the cry of P. W.-3 she went to the house of the victims where she found Naima Bibi covering the wound of Haziba Bibi with a cloth. 18. P. W.-1 stated that immediately after the incident he had shifted the injured Haziba Bibi by an Auto Rickshaw to Katowa Hospital but on the way to the Hospital Haziba Bibi died. 19. Habul Sheikh (P. W.-7) was a co-villager of the victims he was a relation of the victims also. He stated that he found Haziba Bibi lying injured under a coconut tree and the victim Siraj lying dead outside the fencing of the house. P. W.-7 stated further that Haziba Bibi asked for water from him and Haziba Bibi was shifted to Hospital by an Auto Rickshaw. 20. Rangalal Sk. (P. W.-6) is an owner as well as the driver of an Auto-rickshaw. He stated that on the day of the incident when he had parked his Auto-rickshaw at Baroitna bus-stand and taking tea in a tea stall, some villagers came to him and requested to shift an injured woman to the Hospital and accordingly he carried the injured woman and others towards ‘Katawa Ghat’ and that on the way the injured woman died. He stated about some other facts as well, before the I. O. of the case which he had not stated during evidence and as such he was declared ‘Hostile’ by the prosecution. 21. From the evidence of Ijabul Sk (P. W. -4) and Hafijul Mallick (P. W.-5) as well as the I. O., i. e., S. I. Uday Chand Dey (P. W.- 18), it is found that the I. O. arrested the accused on 12.03.2007 and on 13.03.2007 he had taken the Appellant to a field of the village Baraitna where the Appellant brought out a ‘Dao’ from inside the field. He proved that seizure list which had been marked Exhibit- 4/2. The signatures of P. W.- 4 and 5 do also appear in that seizure list (Exhibit-4 and Exhibit- 4/1). The ‘Dao’ thus allegedly seized was identified by P. W.- 4, 5, and 18 (Mat Exhibit- I). He proved that seizure list which had been marked Exhibit- 4/2. The signatures of P. W.- 4 and 5 do also appear in that seizure list (Exhibit-4 and Exhibit- 4/1). The ‘Dao’ thus allegedly seized was identified by P. W.- 4, 5, and 18 (Mat Exhibit- I). All those witnesses signed on the label pasted on the ‘Dao’ after seizure. So, there cannot be any mistaken identification. 22. Dr. Ajit Kumar Biswas (P. W.- 15) performed Post-mortem Examinations over the dead bodies of the victims namely Siraj Mallick and Haziba Bibi. Dr. Biswas in his P. M. Report (Exhibit- 6) as well as during his evidence described the injuries he found in the dead bodies of those two victims. The places of the injuries and the descriptions of the injuries given by Dr. Biswas do match with the descriptions of injuries stated by the witnesses. Dr. Biswas opined that the death of the victims was due to the injuries he found, which were Homicidal in nature. He further opined that the injuries might be caused by a sharp cutting ‘Dao’. 23. As mentioned in the beginning learned Advocate for the Appellant had not assailed in any way the credibility of the witnesses and their evidence discussed above. 24. To sum up, P. W.- 1 himself saw the Appellant assaulting the victims by a ‘Dao’. P. W.- 2, 10 and 14 heard from the victim Haziba Bibi that they were assaulted by the Appellant. The weapon of the offence had been recovered at the instance of the Appellant. The other circumstances proved in the case also corroborate the aforesaid evidence. 25. The Defence had taken up a plea by suggestions to some of the witnesses that the victims were not killed in their house but had been killed by some miscreants at the Bus-stand of the village. But the Appellant made no attempt, whatsoever, to prove the plea. The fact, therefore, strengthens the prosecution case. 26. The victim Siraj Mallick was the father of the victim and Haziba Bibi was the step-mother of the Appellant. But the Appellant made no attempt, whatsoever, to prove the plea. The fact, therefore, strengthens the prosecution case. 26. The victim Siraj Mallick was the father of the victim and Haziba Bibi was the step-mother of the Appellant. They were killed on 25.02.2007 and thereafter the Appellant disappeared from the house and from the evidence of the I. O. it is found that the Appellant absconded after the incident and after repeated attempts the I. O. could arrest the Appellant on 12.03.2007, i. e., after about 17 days from the day of the murders at a place outside the village. The Appellant offered no explanation as to why he suddenly left the village after the incidents and remained untraceable for such a long period. Such a conduct of the Appellant is also an additional support to the prosecution case. 27. So, from what has been discussed above, it is clear, that the fact that the Appellant killed his father Siraj Mallick and step-mother Haziba Bibi, has been proved beyond all shadows of doubt in the case. 28. As mentioned in the beginning, the only point raised by the learned counsel for the Appellant was that after the second marriage of the Appellant’s father, the Appellant was continuously neglected and ill-treated by his father and step-mother since his childhood and the Appellant had been deprived of his share in his father’s property and all those acts of neglect and deprivation acted as provocation which ultimately resulted in the murder of the Appellant’s father and step-mother by the Appellant. So, the case falls within the exception- I to Section 300 I. P. C. and as such it is not a case of murder as decided by the learned Trial Court. The contention had been seriously disputed by the learned counsel for the Respondent/State. 29. Exception-I to Section 300 says of ‘grave and sudden provocation’, but the evidence on record in this case does not disclose any such provocation on the part of any of the victims. From the evidence on record it is found that the Appellant just appeared on the spot and assaulted first his father by a ‘Ram-Dao’ and thereafter his step-mother with the same weapon. From the evidence on record it is found that the Appellant just appeared on the spot and assaulted first his father by a ‘Ram-Dao’ and thereafter his step-mother with the same weapon. From the evidence of the Autopsy Surgeon it is found that due to the assault the victim Haziba Bibi sustained eight injuries in total and the blows in the abdomen of the victim Haziba Bibi was so heavy that the abdominal aorta had been punctured, a part of the intestinal coil came out of the abdomen and the left kidney had been cut into two pieces. Other injuries were also on vital parts of the body. Similarly, Appellant’s father, i. e., Siraj Mallick also sustained 5 serious injuries in vital parts of the body. Both his lungs had been punctured and three ribs of his chest had been cut sharply. One of the cuts penetrated through the chest cavity. From the situations stated above it is clear that the Appellant came with a strong intention and determination to kill the victims. None of the witnesses examined, uttered a single word regarding any altercation or quarrel between the Appellant and the victims before the assaults. 30. The properties talked about, belonged to the victim Siraj Mallick. He had, therefore, every right in law to deal with his properties in any manner he wanted. Moreover, there is no evidence to suggest that Siraj Mallick had ever expressed any intention to deprive the Appellant of any property. On the contrary, the victims’ daughter, i. e., P. W.-2 during her cross examination stated that her father had given money and landed property to the Appellant and that her father distributed his properties equally amongst them, although her father had not transferred any property to any of them by any registered deed. There is no evidence also to suggest that the victims ever neglected or ill-treated the Appellant. That apart, the Appellant is a matured person having his own business and family. So, the question of depriving the Appellant from natural parental love and affection does not arise at all in the case. Over and above all, the defence had never taken any such plea raised by the learned counsel for the Appellant, during trial. On the contrary, the defence had taken up a plea that the victims had been killed by some unknown miscreants at the Bus- stand of the village. Over and above all, the defence had never taken any such plea raised by the learned counsel for the Appellant, during trial. On the contrary, the defence had taken up a plea that the victims had been killed by some unknown miscreants at the Bus- stand of the village. The facts being so, the contention of the learned counsel for the Defence appears to be devoid of any basis whatsoever. 31. Having thus considered the facts and circumstances of the case, the evidence on record, and the submissions of the learned Counsels on both sides, we have no hesitation to hold that it is a case of murder which has been established beyond all doubts. Learned Trial Court had, therefore, rightly convicted the Appellant of the charge of murder punishable under Section 302 I. P. C.We find no reason also to interfere with the punishment ordered by the learned Trial Court. The appeal, therefore, fails and hence dismissed and the judgment and orders dated 30.07.2008 and 31.07.2008 passed by the learned Additional Sessions Judge, Fast Track Court-II, Krishnanagar, Nadia, in Sessions Trial No.-IV of August, 2007 (Sessions Case No. 13th of July, 2007) are hereby affirmed. 32. Department to take steps under Section 388, Cr. P. C.