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2017 DIGILAW 240 (CAL)

Biswajit @ Kala Majhi v. State of West Bengal

2017-03-02

SANJIB BANERJEE, SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : SIDDHARTHA CHATTOPADHYAY, J. 1. The appellants call in question the legality and validity of the judgment and order of conviction dated 24.09.2013 and the sentence of 25.09.2013 passed by the learned Additional Sessions Judge, Jangipur in S.T. No. 1(11)/2010. According to the appellants, the learned Trial Court passed the judgment and recorded the order of conviction without appreciating the evidence of the prosecution witnesses in its true perspective. 2. In such circumstances, the prosecution case has to be narrated. On 13.08.2007 at or about 9 am, the de facto complainant pointed a finger at the present appellants, claiming that these appellants were the harbingers of the death of his daughter. The marriage of the victim took place nearly ten years prior to the fateful day. Initially the victim led a peaceful conjugal life. After five years, curse came down upon her when she was allegedly tortured by her husband and matrimonial inmates due to money and dowry. Prior to the death of the victim, she came to her parents' house and ventilated her painful existence in her matrimonial home to her parents. On 13.08.2007, in the early morning (6 am) one Prahlad Majhi informed the complainant father about the fate of the victim and he rushed to the house of the victim and found his daughter lying dead in a burnt condition. Curiously enough, the appellants were not at home at that time. 3. After receiving the F.I.R., the Investigating Officer took up the charge of investigation and, in course of the investigation, he collected the inquest and post-mortem reports, recorded the statements of the witnesses under Section 161 Cr.P.C., prepared a rough sketch-map with index and submitted a charge-sheet under Sections 498A/302 of I.P.C. 4. On the basis of the materials of record, the learned trial court framed the charges under the aforesaid sections. 5. After recording the evidence, examining the accused persons under Section 313 Cr.P.C. and after hearing the argument, the learned trial court found the appellants guilty under Sections 498A/302 of I.P.C. 6. At the time of argument, learned Counsel appearing on behalf of the appellants contended that there was no eye-witness to the occurrence and the fate of the case hinged on circumstantial evidence. According to him, there was no strong circumstantial evidence appearing against the appellants and, as a result, the appellants deserve acquittal. 7. At the time of argument, learned Counsel appearing on behalf of the appellants contended that there was no eye-witness to the occurrence and the fate of the case hinged on circumstantial evidence. According to him, there was no strong circumstantial evidence appearing against the appellants and, as a result, the appellants deserve acquittal. 7. Therefore, we are to consider the evidence led by the prosecution to ascertain if the prosecution was able to establish the guilt of the appellants. 8. The prosecution, in order to bring home the charges, brought twenty witnesses. P.W. 1 was the de facto complainant. In his examination-in-chief, he reiterated the contents of the F.I.R. He was also a witness to the inquest and seizure. In course of his cross-examination, he admitted that after the marriage, the victim and son-in-law visited his house. He further stated that the son-in-law demanded money for starting a business. He also confirmed that he told the police that his daughter was killed by throttling. The other parts of his cross-examination are almost irrelevant, save the names of the residents who reside in vicinity of the place of occurrence. 9. P.W. 2 was the scribe. According to him, he found the dead body of the victim having burn injuries. He came to know that the victim was killed by throttling and thereafter she was burnt. There was no challenge from the defence side regarding such statement that the victim was initially killed by throttling and thereafter she was set ablaze. A suggestion was given to him that the victim had committed suicide, which he had ruled out. 10. P.W. 3 was the mother of the victim. She stated that the victim used to tell her about the torture. On the fateful day, they were informed by one Prahlad Majhi and instantly they rushed to the house of the accused and found her daughter lying in a burnt condition. She also came to know from the neighbours of the accused that her daughter was killed initially by throttling and thereafter the accused persons set fire upon her. In her cross-examination, she categorically stated that one Ram Kumar Majhi told her about throttling and setting fire upon the victim. Other parts of her cross-examination are not much relevant for the purpose of adjudication. 11. P.W. 4 was a neighbour of the accused persons. In her cross-examination, she categorically stated that one Ram Kumar Majhi told her about throttling and setting fire upon the victim. Other parts of her cross-examination are not much relevant for the purpose of adjudication. 11. P.W. 4 was a neighbour of the accused persons. According to him, at or about midnight he saw that a body was burning and then he left the place. In course of cross-examination, he stated that on the relevant day they organised a camp for the pilgrims, who were supposed to carry water for Lord Shiva. After seeing that the victim was set ablaze, he went back and apparently found the accused persons in the said camp and, on being informed of the incident, the accused persons also came to the spot and poured water on the body for extinguishing the fire. 12. P.W. 5 was the brother of the victim. According to him, the victim's husband was a gambler and a drunkard. He also noticed the burnt dead body of his sister. From the local people, he came to know that the victim was initially killed by throttling and thereafter the accused persons set fire upon her. He was one of the witnesses to the inquest report. Some suggestions, which were irrelevant, were put to him and he denied the same. 13. P.W. 6 was the photographer, who took the photographs of the dead body. 14. P.W. 7 was a witness to the inquest report. P.W. 8 stated that one Mahadeb Majhi (P.W. 4, who was declared hostile) was going home and on hearing the hue and cry, P.W. 8 rushed to the spot and found that the victim was lying a few yards away from the victim's matrimonial home. In course of his cross-examination, he stated that he found the victim's husband and his father in the camp which was organised by the villagers. He also stated that the house of the accused was situated at a distance of about 500 to 600 cubits from the place where the victim was found in a burnt condition. But in his examination-in-chief, he stated that the body was lying just a few yards away from her in-laws' house. Quite rightly, the learned Public Prosecutor in charge wanted to declare this witness as hostile and filed an application. But in his examination-in-chief, he stated that the body was lying just a few yards away from her in-laws' house. Quite rightly, the learned Public Prosecutor in charge wanted to declare this witness as hostile and filed an application. Curiously enough, the learned Additional Sessions Judge kept the petition pending for hearing and, ultimately, no such hearing took place. But it is crystal clear that the prosecution wanted to declare this witness as hostile. It is an accepted principle of law that the evidence of a hostile witness can be taken into consideration, to that extent that it appears reliable. Initially this witness stated that the distance from the place of occurrence to the house of the accused was just a few yards away. In course of cross-examination by the defence, she took a 'U-Turn' and extended the distance by saying that it was about 500 to 600 cubits. Such part of the testimony cannot be accepted. This apart, she cooked up a story that she and the accused persons tried to save the victim from fire. 15. P.W. 9 was also declared hostile by the prosecution. 16. The evidence of P.W. 10 is not much relevant save and except the distance of the place of occurrence from the house of the accused. According to him, after getting the news of death, he went to the spot and found the dead body lying 8 to 10 feet away from the house of Kala (Kala is the nick name of the accused appellant Biswajit). P.W. 10 was also a witness to the seizure. 17. P.W. 11 was also declared hostile by the prosecution. His evidence is not at all relevant for adjudication of this appeal. P.W. 12 was, again, declared hostile. In his cross-examination, after being declared hostile by the prosecution, she denied the suggestions that she gave statements to the Investigating Officer regarding the involvement of the accused persons in the alleged offence. P.W. 13 was a barber. This witness, in course of cross-examination, tried to demolish the prosecution case. According to him, the villagers arranged food and water for the pilgrims and the accused persons were present at the said camp. After hearing the hue and cry, they all rushed to the spot and found that a lady was burning. P.W. 13 was a barber. This witness, in course of cross-examination, tried to demolish the prosecution case. According to him, the villagers arranged food and water for the pilgrims and the accused persons were present at the said camp. After hearing the hue and cry, they all rushed to the spot and found that a lady was burning. He was very specific in saying that the said lady was then alive and tried to save herself from the fire. He also stated that the accused persons and others tried to save that lady by pouring water. The prosecution filed an application for declaring him hostile, but the learned trial court without giving the prosecution an opportunity to cross-examine this witness, kept the petition pending for hearing. Therefore, his such evidence has to be scrutinized with great caution. According to him, the victim was then alive and was also trying to escape from fire. Surprisingly enough, the post-mortem report speaks that she was throttled to death first and thereafter set on fire. Therefore, before setting fire upon the victim, the victim died due to strangulation. This barber could not have seen a dead person trying to save herself. This barber in his examination-in-chief stated that at the time of marriage of the victim with the accused Kala Majhi (Biswajit) he performed the ritual which was supposed to be done by a barber. In course of examination under Section 313 Cr.P.C., one of the accused stated that the claim of the barber was false. In course of cross-examination by the accused, the barber said that the victim was found in an open place beside a pond. The pond was situated at a distance of about 700/800 cubits away from the house of the accused. Such part of his evidence may be compared with the evidence of other witnesses, who were also declared hostile. P.W. 8 stated that the victim's body was found within a few yards from the house of the accused. P.W. 10 stated that the body was lying at a distance of 8 to 10 feet away from the house of Kala. The rough sketch-map with index belies such assertion. Therefore, P.W. 13 appears to have been dishonest. He made a desperate attempt to save the accused from the net of law. 18. P.W. 14 was the priest. He stated nothing about the involvement of the accused persons. The rough sketch-map with index belies such assertion. Therefore, P.W. 13 appears to have been dishonest. He made a desperate attempt to save the accused from the net of law. 18. P.W. 14 was the priest. He stated nothing about the involvement of the accused persons. P.W. 15 was a home-guard who had taken the dead body to the Jangipur Sadar Hospital for post-mortem. P.W. 16 was the van puller, who carried the dead body for the post-mortem examination. P.W. 17 was a witness to the seizure. P.W. 18 was the Investigating Officer, who had recorded the statements of four witnesses namely P.W. 11, P.W. 12, P.W. 13, P.W. 14. According to him all those witnesses stated before him that the victim was subjected to torture by the accused persons and that the victim was strangulated to death and, thereafter, the dead body was burnt. He was not cross-examined by the defence so far as his recording of statements in regard to aforesaid witnesses were concerned. P.W. 19 was the another Investigating Officer, who had examined the others witnesses. According to him, P.W. 4 and P.W. 9 told him that the parents-in-law and the husband of the victim fled away from their house and that the dead body of the victim was lying under Sajina Amra trees. 19. P.W. 20 was the autopsy surgeon. In his evidence he clearly opined that the cause of death was asphyxia due to strangulation. He suggested that the cause of injury was homicidal and ante-mortem in nature. He also opined that the patient had a pugilistic pose in all her limbs, probably because she was burnt very soon after death. In course of conducting post-mortem, he found that there was a fracture in the left neck bone and hemorrhage in tissues around the fracture. From his cross-examination the defence could not earn any dividend. 20. On perusal of the entire evidence we find that the victim was throttled to death and her body was thereafter set ablaze. 21. Learned Counsel appearing on behalf of the appellants urged that there was no eye-witness to the occurrence and that the presence of the accused persons was doubtful. He submitted that the conviction was utterly unsustainable and if allowed to stand would amount to a travesty of justice. 21. Learned Counsel appearing on behalf of the appellants urged that there was no eye-witness to the occurrence and that the presence of the accused persons was doubtful. He submitted that the conviction was utterly unsustainable and if allowed to stand would amount to a travesty of justice. On the contrary, learned Counsel appearing on behalf of the state, in emphatic refutation, argued that the story of the accused persons' absence from the spot was baseless. Some of the witnesses, who were turned hostile, wanted to say that the accused persons were in the camp which was organised by the local people for supplying water and food to the pilgrims. This question was put to appellants in course of their examination under Section 313 Cr.P.C. But the appellants themselves denied their presence by saying "false.....innocent". It was for the appellants to indicate whether they were present at the place of occurrence; and, if not, where else they may have been. The appellant no. 1 Biswajit @ Kala Majhi was the husband and admittedly he had been residing with his wife and children in the house. The dead body was found by the boundary wall. This apart, if the accused had an alibi, it was their duty to prove the same. They ought to have demonstrated their presence elsewhere by adducing evidence. That was not done. 22. The rough sketch-map with index was marked as an exhibit. The house of the accused Biswajit Majhi @ Kala is adjacent to the place where the body was found and it was intervened by a narrow path. The house of the accused Biswajit Majhi has been marked as 'C' in the index of the rough sketch-map and where the body was found that is marked as 'E'. The house of the other appellants have not been mentioned in the rough sketch-map with index. 23. We are not oblivious to that fact that in criminal law the burden of proof is always upon the prosecution and never shifts, whatever the evidence may be during the process of the trial. When there is evidence of commission of a crime and accused persons have been connected therewith, the onus is on them for introducing evidence in rebuttal. The Section 106 of Evidence Act is not alien to the rule of law. When there is evidence of commission of a crime and accused persons have been connected therewith, the onus is on them for introducing evidence in rebuttal. The Section 106 of Evidence Act is not alien to the rule of law. The provision enunciates that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101 of the Act. 24. The burning body of the victim was discovered in the early morning. By 6 am, the complainant received intimation that his daughter had suffered burn injuries. Thus, it is evident that the victim must have been throttled to death earlier and her body set on fire for it to be discovered by or about 6 am. In the ordinary course, the victim and her husband would have spent the night together at the matrimonial home. Since the death must have occurred some time prior to 5.30 - 6 am and the husband must have been with the victim, it was for the husband to indicate how the victim came to be throttled or her body was burnt. In the absence of the husband adducing any evidence in such regard, the husband's presence with the victim at the time that the victim was strangulated appears to be apparent. Again, upon the husband not explaining how the victim met such fate, the trial court cannot be faulted for holding against the husband. The husband neither set up any alibi nor asserted, despite due opportunity, that he was not present at home immediately before the burning body of the victim was discovered. 25. The only attempt by the defence to make out an alibi appears to be through the statements of some of the witnesses declared hostile and two of the witnesses who the prosecution claimed as hostile, that at the time of the victim's burnt body was discovered the husband of the victim and his father were at the camp organised by the locals for the pilgrims. Apart from the fact that the statements made at the trial by such hostile witnesses may have been contrary to their statements recorded with the police under Section 161 of the Code, such aspect of their testimonies does not inspire any confidence. Apart from the fact that the statements made at the trial by such hostile witnesses may have been contrary to their statements recorded with the police under Section 161 of the Code, such aspect of their testimonies does not inspire any confidence. One of the hostile witnesses went to the extent of claiming that the victim was trying to escape from the fire. That would imply that the victim was alive at the time that her body caught fire. But the post-mortem report was conclusive that the death had occurred due to strangulation and a dead woman would neither walk nor move. Curiously, it was the father of the victim who lodged the police complaint. If the husband of the victim was not involved in the commission of the offence, he would have been expected to lodge the complaint. 26. Therefore, we are of the view that the prosecution sufficiently brought on record the surrounding circumstances of the commission of murder and since no explanation has been given by the appellant no. 1, we are of the view that Section 106 of the Evidence Act should be invoked in this case. 27. There is no evidence against the other appellants, namely Shyam Chand Majhi and Shrimat Majhi. Accordingly, they may be acquitted from this case. But the involvement of Biswajit @ Kala Majhi is well-established as far as Section 302 of I.P.C. is concerned. However, the charge under Section 498A of I.P.C. has not been established against any of the appellants. 28. On a cumulative reading of the prosecution case and the evidence on record, it appears to us that it was a gruesome murder which was diabolic in its conception and cruel in execution. 29. We find no infirmity in the judgment and order of conviction recorded by the learned trial court so far as the appellant no. 1 is concerned. The criminal appeal is allowed in part i.e. so far as the appellant nos. 2 and 3 are concerned. The appellant nos. 2 and 3 being on bail they be discharged from their restrictive bail bonds. 30. Let a copy of this order and L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. 31. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. 30. Let a copy of this order and L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. 31. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Siddhartha Chattopadhyay, J. - I agree. Ordered accordingly.