Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 82 (CAL)

Paltu Shil alias Roy v. State of West Bengal

2016-01-27

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2016
JUDGMENT : Sankar Acharyya, J. This appeal has been directed against judgment dated 24.04.2006 and orders of conviction and sentence dated 24.04.2006 and 25.04.2006 respectively passed by learned Additional Sessions Judge, 2nd Fast Track Court, Jalpaiguri in Sessions Case No. 76/03 corresponding to Sessions Trial No. 11/2003 convicting the appellant Paltu Shil @ Roy under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 2000/- in default R.I. for six months. Contending inter alia appellant has contended that impugned judgment is perverse and bad in law and that learned Court below ought to have held that it was impossible for the informant (PW 1), wife of the deceased to identify the assailant of the deceased in the fateful dark rainy evening and that motive of the appellant was not proved and that the seizure of knife and wearing apparel of accused was not proved and that the learned Judge in Trial Court erred in law and fact for which the impugned judgment is liable to be set aside and appellant deserves acquittal. At the time of hearing this appeal learned Counsel for the appellant has advanced arguments that prosecution case against the appellant was not proved beyond reasonable doubt and so the appellant deserves acquittal. His alternative further arguments is that if the entire allegations are taken on its face value, in spite of that the conviction under Section 302 of the Indian Penal Code cannot sustain in view of the fact that what has happened as alleged, if at all, has happened in a spur of the moment and such alleged incident was not premeditated or pre-planned and as such, it falls within the ambit of Section 304 Part – II of the Indian Penal Code. In support of his arguments he relied upon two decisions reported in (2009) 2 CCr LR (SC) 229 and (2010) 2 CCr LR (Cal) 773. Supporting the findings of the impugned judgment learned Counsel for the State has argued that there is no room to differ with the findings of the learned Trial Judge and so the impugned judgment should be affirmed. Determining question in this appeal before us is whether the impugned judgment deserves to be set aside or modified or affirmed. Supporting the findings of the impugned judgment learned Counsel for the State has argued that there is no room to differ with the findings of the learned Trial Judge and so the impugned judgment should be affirmed. Determining question in this appeal before us is whether the impugned judgment deserves to be set aside or modified or affirmed. The case of the prosecution which was put in trial in brief is that on 02.06.2001 at 22:30 hrs. (10:30 p.m.) an information was received at Rajganj Police Station in the district of Jalpaiguri as appears from formal FIR (exhibit- 1/2) and it also appears from exhibit-1/2 that a written FIR was lodged on 03.06.2001 at 00:45 hrs. (12:45 a.m.) by Bulbul Bakman alleging homicidal death of her husband Mantu Bakman caused by accused – appellant Paltu Shil on 02.06.2001 at about 20:00 hrs (08:00 p.m.) at night near the residence of Mantu Bakman at Manpurpara, Fatapukur under P.S. – Rajganj assaulting Mantu by a big knife. The allegations made in the written FIR (exhibit-1) in substance is that on 02.06.2001 at about 8:00 p.m. the informant gave rice to her husband (victim ) and Niranjan Thapa (PW 15). Victim completed his eating but Niranjan was eating. At about 09:00 p.m. appellant called the victim coming in front of the house. Victim went and appellant enquired about Niranjan. Hearing from victim that Niranjan was eating meal the appellant became annoyed and started altercation with him and knocked the victim. Informant (PW 4) tried to bring her husband inside the house but the appellant became angry and he dragged the victim to some extent and he took a big knife from his waist and assaulted on the belly of victim. Appellant fled away with that knife. PW 1 tried to apprehend the appellant but her attempt failed. PW 1 raised alarm. It was raining. Neighbouring people came. With their help the victim was taken to Mogradangi hospital where the doctor declared him dead. A charge under Section 302 of the Indian Penal Code was framed against the appellant when he pleaded not guilty. Trial commenced. During trial prosecution produced sixteen witnesses of whom nine witnesses were declared hostile. Accused appellant was examined under Section 313 of the Code of Criminal Procedure. Appellant did not adduce evidence. Prosecution adduced some documentary evidence also. A charge under Section 302 of the Indian Penal Code was framed against the appellant when he pleaded not guilty. Trial commenced. During trial prosecution produced sixteen witnesses of whom nine witnesses were declared hostile. Accused appellant was examined under Section 313 of the Code of Criminal Procedure. Appellant did not adduce evidence. Prosecution adduced some documentary evidence also. Prosecution examined Bulbul Bakman (PW 1), Bapi Chowdhury (PW 2), Samir Mondal (PW 3), Dhiren Debnath (PW 4), Islam Md. (PW 5), Krishna Mondal (PW 6), Sushanta Sarkar (PW 7), Mohua Biswas (PW 8), Sabita Sarkar (PW 9), Saraswati Sarkar (PW 10), Parbati Sarkar (PW 11), Constable Prafulla Roy (PW 12), A.S.I. Mridul Kanti Dutta (PW 13), Dr. Partha Pratim Mukherjee (PW 14), Niranjan Thapa (PW 15) and S.I. Binoy Gurung (PW 16). Among them PW 2, PW 3, PW 5, PW 6, PW 7, PW 8, PW 9, PW 10 and PW 11 were declared hostile. PW 1 and PW 15 are star witnesses of the alleged incidents brought by prosecution. PW 12 escorted the dead body of Mantu Bakman to North Bengal Medical College and Hospital for Post-Mortem examination. PW 13 witnessed seizure of wearing apparels and blood stained napkin by PW 16, PW 14 held post-mortem examination of the dead body and PW 16 is the Investigating Police Officer (in short I.O.). Prosecution adduced the written complaint (FIR) as exhibit – 1, inquest report as exhibit – 2, a seizure list relating to seizure of a 11 ½? long knife as exhibit – 3/2, another seizure list relating to seizure of a wet pant of the appellant as exhibit – 4/1, a dead body chalan as exhibit – 5, another seizure list relating to seizure of victim’s wearing apparels and sample blood and one napkin as exhibit – 6/1, post-mortem report as exhibit – 7 and rough sketch map with index of the place of occurrence and its vicinity as exhibit – 8. Prosecution also brought the seized knife and seized napkin as Material exhibits I and II respectively. Going? through the impugned judgment it appears to us a very much speaking judgment with elaborate discussion on the evidence adduced by prosecution. According to the arguments advanced before us on behalf of the appellants we like to discuss on the question of identification of the accused and his motive first. Going? through the impugned judgment it appears to us a very much speaking judgment with elaborate discussion on the evidence adduced by prosecution. According to the arguments advanced before us on behalf of the appellants we like to discuss on the question of identification of the accused and his motive first. PW 1 is the witness of entire occurrence as alleged. According to her, accused appellant called the victim before the occurrence uttering the name of victim Mantu repeatedly. Said evidence was given to appellant for explanation during examination under Section 313 of the Code of Criminal Procedure to which appellant claimed himself as innocent but did not claim that PW 1 did not know him. The appellant was identified by PW 1 during her examination-in-chief. Such identification was not challenged in cross-examination. As such, it is crystal clear from her evidence that at first she identified the appellant by his voice when he called Mantu repeatedly and also on hearing quarrel between Mantu (victim) and Paltu (appellant). She also claimed that during the altercation between Mantu and Paltu she came out from house with a kerosene lamp and found Paltu stabbed Mantu with a knife and she raised alarm that Mantu was stabbing her husband (Paltu chaku marchhe chaku marchhe). PW 15 deposed corroborating PW 1 in substance. He, however, mentioned the date of occurrence as 01.06.2000 instead of 02.06.2001 erroneously. He did not claim that he saw the accused Paltu in that night but he stated that Paltu enquired as to why PW 15 was taking meal in that night in the house of Mantu. Thereafter, an altercation took place between them. As such, PW 15 identified the appellant hearing his voice. During cross-examination PW 15 stated that he knew Paltu (appellant) previously. In our view, identification of a person by his voice is a strong proof of identification. That apart, PW 1 is eyewitness of the incident of assault to her husband by the appellant with knife. We find no reason to disbelieve her. We also find no reason even by preponderance of probability to believe that PW 1 might have falsely implicated the appellant in the incident of her husband’s murder leaving any other person as real culprit. We find no reason to disbelieve her. We also find no reason even by preponderance of probability to believe that PW 1 might have falsely implicated the appellant in the incident of her husband’s murder leaving any other person as real culprit. Regarding motive of the accused appellant we do not find any direct evidence but we find from the circumstances that the appellant brought knife with him in the rainy evening which indicates motive of appellant to use the knife. Being armed with such deadly weapon he came to the residence of the victim and calling him out he picked up quarrel with the victim and in course of altercation he assaulted the victim with knife on vital organ (belly) of the victim which indicates the only intention of the assailant (appellant) to kill the victim and in all probability it is an intention of committing murder to the victim. In this connection it will not be out of place to mention that from the deposition of hostile witness PW 3 it appears that the victim and appellant had their separate business of garage in the same area Fatapukur which evidence remains unchallenged. From that evidence possibility of professional rivalry between them also cannot be ruled out. In summing up, we are satisfied that accused appellant was properly identified by PW 1 and PW 15 and that he had motive to commit murder to Mantu Bakman. In our opinion, the evidence of PW 1 read with PW 15 and PW 5 is so convincing and hostility of hostile witnesses is so apparent that there is no scope to believe otherwise than to believe that the appellant intentionally committed murder to Mantu Bakman on 02.06.2001 in the night at about 09:00 p.m. near the residence of Mantu within the vision of PW 1 the wife of victim. Regarding hostility of hostile witnesses we like to mention that PW 2 is secretary of local club. He knows Mantu Bakman died but he does not know how he died. It is difficult to believe. He might not had knowledge about the incident but certainly he knew whether death of Mantu was normal or accidental or suicidal or homicidal death. PW 3 is landlord of Mantu and lives in the same house in the contiguous room having common verandah as evident from Exhibit-8 read with PW 16 and PW 3. It is difficult to believe. He might not had knowledge about the incident but certainly he knew whether death of Mantu was normal or accidental or suicidal or homicidal death. PW 3 is landlord of Mantu and lives in the same house in the contiguous room having common verandah as evident from Exhibit-8 read with PW 16 and PW 3. PW 3 remained present in his house at the time of death of Mantu, he saw the dead body as it was picked up from the spot and was placed in the house of PW 3 but he said that he heard that Mantu Bakman died and he cannot say how Mantu died. During his cross-examination on behalf of defence he told that at the relevant point of time the wife of Mantu Bakman did not disclose how Mantu died. He did not speak about and injury on the belly of Mantu which has been sufficiently proved by PW 1, PW 15, PW 16, PW 14, Exhibit- 8 and Exhibit- 7. It is significant to note that PW 14 stated in his evidence that death of the deceased was in his (PW 14’s) opinion due to ante mortem injury (stab wound) as noted and homicidal in nature. As such, obviously, PW 3 suppressed the truth. PW 5 is a witness of seizure of appellant’s wet pant from his house. PW 5 proved his signature. Curiously this PW 5 stated in examination-in-chief that police took his signature on a paper but he could not say why he signed that paper. Although he stated that the paper was prepared in uniform carbonic process on which he signed he stated during cross-examination on behalf of defence that he signed on a blank paper as per request of Daroga babu. No prudent man can say his such statement as true state of affairs. PW 6 is wife of PW 3. She is also not believed as trustworthy witness. In our view, she also suppressed the truth like her husband. PW 7 is witness of seizure of a knife but he did not say about factum of seizure although he stated, “This is my signature on a seizure list which is prepared in uniform carbonic process.” Although he said about preparation of seizure list in uniform carbonic process he stated during cross-examination on behalf of appellant that he signed on a blank paper. As such, it is needless to say that he was anyhow influenced by appellant for suppressing the truth. Admittedly PW 8 is a neighbour of the appellant. She stated that she did not know Mantu Bakman but she heard from her neighbours that Mantu Bakman died. She did not say names of those neighbours. This witness is also not reliable. Similarly, PW 9, PW 10 and PW 11 are also not believable or truthful witness. In respect of findings made in the impugned judgment we fully concur with the observations made by learned Additional Sessions Judge. Further discussion in this appeal is redundant and so avoided. In respect of alternative arguments of learned advocate for the appellant we are not satisfied to believe the occurrence took place at a spur of moment as we believe that being premeditated the appellant went to the place of occurrence preparing himself taking knife with him for committing murder to Mantu Bakman. Therefore, the cited decisions are not applicable in this appeal. As a result, we are not at all satisfied to set aside or modify the impugned judgment but we are satisfied to confirm the impugned judgment. As a result, this appeal fails and impugned judgment with orders of conviction and sentence is confirmed. The appeal is dismissed. Urgent Photostat certified copy of this judgment, if applied for be supplied promptly to the parties or their advocates on record observing all legal requisite formalities. I agree.