Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 586 (CAL)

Bhabesh Mahato v. State of West Bengal

2017-07-04

ASHA ARORA, RAKESH TIWARI

body2017
JUDGMENT : Asha Arora, J. 1. This appeal at the instance of the accused appellant is directed against the judgment and order of conviction and sentence dated 31st March, 2004 passed by the learned Additional Sessions Judge, 1st Fast Track Court, Midnapore in Sessions Trial Case No. XLIV of March, 2001, whereby the accused appellant was convicted for the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as the IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- in default of which to suffer rigorous imprisonment for two years for the aforesaid offence. 2. The factual scenario of the prosecution case in brief is as follows: On 14.2.1999 at about 11.00 P.M., the accused appellant surrendered at Lalgarh Police Station before the Officer-in-charge and gave a statement alleging that having learnt of his wife's illicit relation with a man named Totan alias Arup Betal, he decided to catch them red handed. With this object in view, on 14.2.1999 in the evening the accused left his house after informing his wife that he would be going to his aunt's house and would not return that day. After having gone for some distance, accused hid himself and at about 8.00 P.M. he saw Totan moving towards his house. The accused followed him and found that Totan entered his house and bolted the door from inside. While the accused was waiting outside near his house, about half an hour later, in the light of the torch the accused saw Totan coming out of the house and on seeing him Totan fled but the accused caught hold of him and started assaulting him with the torch. When the victim fell down, the accused went to his house and returned with a 'Katari' with which he inflicted repeated blows on the person of the victim in consequence of which he died on the spot. 3. On the basis of the statement of the accused which was recorded by S.I.B. Bhunia (P.W. 1), Salboni P.S. Case No. 11 of 1999 dated 15.2.1999 under section 302 of the IPC was registered against the accused appellant. Investigation into the case by S.I. Rakesh Chandra Mishra (P.W. 17) culminated in the submission of the charge sheet under section 302 IPC. 4. Investigation into the case by S.I. Rakesh Chandra Mishra (P.W. 17) culminated in the submission of the charge sheet under section 302 IPC. 4. The case being a sessions triable one was committed to the Court of the Sessions Judge, Midnapore wherefrom it was transferred to the Court of the Additional Sessions Judge, 1st Fast Track Court, Midnapore for trial and disposal. The Trial Court framed the charge for the offence punishable under section 302 IPC against the accused/appellant who pleaded not guilty to the arraignment and claimed to be tried. In course of trial prosecution examined 18 witnesses and exhibited several documents. 5. Defence version as projected from the suggestions given to the prosecution witnesses in cross-examination as well as from the answers given by the accused in his examination under Section 313 Cr.P.C. is innocence and outright denial of the prosecution case. 6. On conclusion of trial the learned Additional Sessions Judge passed the impugned judgment and order of conviction and sentence as aforesaid. 7. The point for determination is whether the conviction and sentence of the appellant for the offence punishable under section 302 IPC is sustainable. 8. The main thrust of argument on behalf of the appellant is that the offence was committed in a fit of rage without premeditation so the case falls within Exception (4) to section 300 IPC. Learned counsel for the appellant sought to impress upon us that initially the accused appellant was not armed with any weapon. The alleged assault upon the victim was only with a torch. Subsequently, when the victim fell under the impact of the assault with torch, the accused went home and brought a 'Katari'. According to the learned counsel for the appellant, if the accused intended to kill the victim he would have come armed with a weapon. There being no intention to kill, the act attributed to the accused would not come within the offence of murder but would constitute a lesser offence under section 304 IPC falling within the provision of Exception (4) to section 300 IPC. 9. On the other hand, the learned counsel appearing for the State countered that the circumstantial evidence conclusively proves the guilt of the accused for the offence of murder since the accused appellant, after much deliberation went home and brought a 'Katari' with which the victim was done to death. 10. 9. On the other hand, the learned counsel appearing for the State countered that the circumstantial evidence conclusively proves the guilt of the accused for the offence of murder since the accused appellant, after much deliberation went home and brought a 'Katari' with which the victim was done to death. 10. There being no ocular witness to the incident, prosecution case hinges entirely on circumstantial evidence. The circumstances relied upon by the prosecution to prove the guilt of the accused may broadly be enumerated as follows: (1) Homicidal death of the victim. (2) Surrender of the accused at Lalgarh Police Station before the Officer in Charge immediately after the incident. (3) Illicit relation between the wife of accused and the deceased victim. (4) Factum of recovery and seizure of the weapon of offence at the instance of the accused. (5) Corroboration by the medical evidence of the doctor who held post mortem examination on the corpse of the victim. (6) Motive for the commission of the offence. 11. It is not in dispute that the death of the victim was homicidal in nature caused due to the head injury mentioned in the post-mortem report (Exhibit-13) and testified by the autopsy surgeon (P.W. 18). At this juncture, it is pertinent to refer to the evidence of Dr. Asish Acharya (P.W. 18) who testified in his evidence that on post mortem examination over the corpse of the victim he found external injury behind the head and neck joint measuring 3" x 1" caused by very sharp and heavy weapon. On dissection, the autopsy surgeon noticed wound over skull and haemorrhage in cerebral tissue. P.W. 18 opined that death was due to haemorrhage and shock and head injury caused by severe cut and pressure by heavy and sharp weapon ante mortem in nature. The autopsy surgeon categorically opined that such injury may be caused by sharp side of 'Katari' and the injury is sufficient to cause death. He further opined that the skull injury may be caused by blunt weapon while the neck injury may be caused by sharp cutting weapon. Curiously enough, the evidence of the autopsy surgeon remained virtually unchallenged in cross-examination. The evidence of P.W. 18 as to the injuries found on the person of the deceased and his opinion regarding the cause of death remained unassailed in cross-examination. Curiously enough, the evidence of the autopsy surgeon remained virtually unchallenged in cross-examination. The evidence of P.W. 18 as to the injuries found on the person of the deceased and his opinion regarding the cause of death remained unassailed in cross-examination. The medical evidence of P.W. 18 is in complete conformity with the prosecution version regarding the weapon of offence, manner of assault and the cause of death of the victim. 12. A vital circumstance connecting the accused with the crime is the factum of his surrender at Lalgarh Police Station before the Officer-in-Charge who has been examined as P.W. 1. This witness testified in his evidence that on 14/2/99 at about 11.00 P.M. when he was at the P.S. one Bhabesh Mahato of Damakata village appeared before him with blood stains on his wearing apparel and gave statement which he recorded. The evidence of P.W. 1 regarding this piece of incriminating circumstance remained unscathed in cross-examination. Nothing could be elicited in the cross-examination of P.W. 1 to suggest that he had any reason to depose falsely against the accused. No motive could be attributed to P.W. 1 for falsely implicating the accused in this case. The evidence of P.W. 1 inspires confidence. 13. Interestingly, the circumstance regarding the illicit relation between the wife of the accused and the deceased has been testified by his brothers namely, P.W. 2 Khokan Betal and P.W. 4 Swarup Betal. The relevant portion of the evidence of P.W. 2 is quoted as follows: "Usha is the wife of accused Bhabesh. My brother had love relation with Usha and he used to spend night with her." Being quizzed in cross-examination this witness stated that he told his deceased brother not to have relationship with Usha but he paid no heed. P.W. 4 corroborated the evidence of P.W. 2 by stating that his brother was murdered as he had illicit relation with the wife of the accused. This witness emphatically stated in his evidence that he saw his brother making love with the wife of the accused. Nothing could be elicited in the cross-examination of these two witnesses to suggest that they were inimical to their deceased brother. No motive could be attributed to these two witnesses for deposing falsely regarding the factum of illicit relation between their deceased brother and the wife of accused. Nothing could be elicited in the cross-examination of these two witnesses to suggest that they were inimical to their deceased brother. No motive could be attributed to these two witnesses for deposing falsely regarding the factum of illicit relation between their deceased brother and the wife of accused. The evidence of P.W. 2 and P.W. 4 is credible and beyond reproach. 14. The factum of recovery and seizure of the weapon of offence at the instance of the accused has been proved by P.W. 17 S.I. Rakesh Chandra Mishra who seized the 'Katari' and the torch on being shown and identified by the accused. The evidence of the Investigating Officer (P.W. 17) has been corroborated by P.W. 2 Khokan @ Sukumar Betal and P.W. 4 Swarup Betal, both brothers of the accused. The seizure list dated 15/2/99 (exhibit-7(b)) by which the 'Katari' was seized and another seizure list dated 15/2/99 (exhibit-4(b)] by which a two cell torch of the accused and a Titan watch of deceased were seized in presence of independent witnesses lend tremendous credence to the prosecution version. 15. This now brings us to the motive for the commission of the crime. In the present case the motive for the offence has clearly been spelt out in the evidence of P.W. 2 and P.W. 4 who are the brothers of the deceased. Both these witnesses have stated that there was illicit relation between the wife of the accused and their deceased brother. Evidently the accused came to know about the said liaison and decided to eliminate the deceased who was battered to death on the date of the incident. 16. It necessarily follows from the foregoing discussion that the various links in the chain of circumstances have been established by clinching and unimpeachable evidence. The cumulative effect of the circumstantial evidence discussed leads to the only conclusion that the victim was done to death by the accused. The only point raised by the learned counsel for the appellant is whether the offence of murder can be attributed to the appellant. 17. We are not impressed with the argument that the offence was committed in the heat of passion without premeditation and that there was no intention to kill. The only point raised by the learned counsel for the appellant is whether the offence of murder can be attributed to the appellant. 17. We are not impressed with the argument that the offence was committed in the heat of passion without premeditation and that there was no intention to kill. It is true that the initial assault upon the victim with a torch was in a fit of rage but subsequently, after the victim fell under the impact of assault with a torch the accused went to his house and brought a 'Katari' with which he inflicted fatal blows on the person of the victim till he died. The nature of injuries, the weapon used and the manner of assault upon the victim targeting the vital parts of his body sufficiently prove the intention to murder. The offence cannot be attributed to heat of the moment or fit of anger. For the reasons discussed we are convinced that the case squarely falls within Section 300 IPC. There is no scope for invoking Exception (4) to Section 300 IPC. 18. In the ultimate analysis we are of the firm view that the judgment and order of conviction and sentence passed by the Trial Court is justified and warrants no interference. 19. Consequently, the appeal is dismissed. 20. A copy of this judgment along with the lower Court records be sent forthwith to the trial Court and a copy of the judgment be sent to the Superintendent of the concerned Correctional Home where the appellant is lodged. 21. Urgent photostat certified copy of this judgment, if applied for, be made available to the applicant upon compliance of requisite formalities.