Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 533 (CAL)

Khudiram @ Khora Bauri v. State of West Bengal

2018-08-02

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

body2018
JUDGMENT : JOYMALYA BAGCHI, J. 1. This is a jail appeal. 2. The appellant is unrepresented. 3. Mr. Deep Chaim Kabir, learned advocate empanelled with the High Court Legal Services Authority is requested to appear in the matter on behalf of the appellant. Member Secretary, High Court Legal Services Authority is requested to regularise the aforesaid appointment. 4. The appeal is directed against the judgment and order dated 4th March/5th March, 2011 passed by the Learned Additional Sessions Judge, Durgapur in Sessions Case No. 36 of 2009 [Sessions Trial No. 23 of 2010] convicting the appellant for commission of offence punishable under Sections 302/436 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.3,000/-, in default, to suffer rigorous imprisonment for one year for the offence punishable under Section 302 IPC and to suffer rigorous imprisonment for ten years and to pay fine of Rs.2,000/-, in default, to suffer rigorous imprisonment for another six months for the offence punishable under Section 436 IPC; both the sentences to run concurrently. 5. The prosecution case as alleged against the appellant is to the effect that the victim, Bhabri Bouri was married to the appellant. On 8th December, 2000 around 20:00 hrs. neighbours saw that the house of the appellant was on fire. They rushed to the place of occurrence and found that the appellant after bolting the door was trying to flee away from the spot. On reaching the house they found that the wife of the appellant, Bhabri Bouri was lying dead with burn injuries. Dharam Bouri, the father of the victim, was informed of the incident and he came to the place of occurrence. He found the burnt body of Bhabri at her matrimonial home. He lodged complaint with the police station resulting in registration of Andal Police Station Case No. 226 of 2000 dated 8th December, 2000 under Sections 498A/302/436 of the Indian Penal Code. Inquest and post-mortem were held over the body of the victim. Opinion as to the cause of death was reserved till receipt of the FSL report. FSL report was received and post-mortem doctor (P.W. 4) opined that the victim had died due to asphyxia as a result of strangulation and burns. In conclusion of investigation, charge-sheet was filed against the appellant. Opinion as to the cause of death was reserved till receipt of the FSL report. FSL report was received and post-mortem doctor (P.W. 4) opined that the victim had died due to asphyxia as a result of strangulation and burns. In conclusion of investigation, charge-sheet was filed against the appellant. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Durgapur for trial and disposal. Charges were framed under Sections 498A/302/436 of the Indian Penal Code against the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 6 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 4th March/5th March, 2011 convicted and sentenced the appellant, as aforesaid. The appellant, however, was acquitted of the charge under Section 498A of the Indian Penal Code. 6. Mr. Deep Chaim Kabir, learned advocate appearing for the appellant submitted that the motive for commission of the offence has not been proved. There is no direct evidence that the appellant had murdered the victim. Evidence of the neighbours with regard to the conduct of the appellant in fleeing away from the place of occurrence was stated for the first time in Court and cannot be treated as an incriminating circumstance as he may have sought to save himself from the fire. Cause of death has not been proved beyond doubt. Accordingly, the appellant is liable to be acquitted. 7. On the other hand, Mr. Neguive Ahmed, learned Additional Public Prosecutor along with Ms. Mayukhi Mitra, learned advocate, appearing for the State, submitted that the appellant used to live with the victim at the matrimonial home. He was seen shackling the door and running away from the place of occurrence while his house was on fire. Evidence of the post-mortem doctor (P.W. 4) shows that the victim died due to asphyxia as a result of strangulation and burn injuries. No explanation was forthcoming on the part of the appellant as to how the victim suffered homicidal death. Hence, the appeal is liable to be dismissed. 8. P.W. 1 (Deepak Bouri), P.W. 2 (Amar Bouri) and P.W. 3 (Mora Bouri) are the neighbours of the appellant. 9. No explanation was forthcoming on the part of the appellant as to how the victim suffered homicidal death. Hence, the appeal is liable to be dismissed. 8. P.W. 1 (Deepak Bouri), P.W. 2 (Amar Bouri) and P.W. 3 (Mora Bouri) are the neighbours of the appellant. 9. P.W. 1 stated that about 9/10 years ago around 7:30/8:30 P.M. he along with Amar Bouri and Mora Bouri were sitting in a field near the house of the accused. They saw a fire had broken out in the house of the accused. They rushed to the spot. They found that the accused was fleeing away from the spot. They tried to apprehend him but failed. They doused the fire. After entering the house they found the victim lying in burnt condition. Police arrived at the spot. Police seized burnt pieces of cloth, one lantern and burnt bamboo under a seizure list. He signed on the seizure list (Exhibit-1). He also signed on the inquest report (Exhibit-2). He saw the accused bolt the door from outside and run away. 10. In cross-examination he stated that police removed the dead body at night. He had not gone through the contents of the paper which he had signed. He did not see Khudiram attempting to bring the fire under control. He did not see any person setting fire in the house of the accused. 11. P.Ws 2 and 3 have substantially corroborated the evidence of P.W. 1. They have also proved their signatures on the seizure list and the inquest report. 12. P.W. 3 however, admitted in cross-examination that he did not state the aforesaid facts to the police. 13. P.W. 4, Dr. Anil Kumar Bhattacharjee held post-mortem over the body of the victim. He found the female body was thin, rigormortis – present, tongue – protruded and clinched in between teeth. The body was burnt from face to thigh. Hyoid bone was fractured. No soot was found in trachea. He reserved his opinion pending receipt of FSL report. He sent Viscera for FSL examination upon receipt of FSL report he opined that the death was due to asphyxia as a result of strangulation and burns. Strangulation was ante mortem in nature. He proved the Post-mortem report (Exhibit-3) and FSL report (Exhibit4). 14. P.W. 5, Banshidhar Banerjee is the informant in the instant case. He stated that the victim was married to the accused. Strangulation was ante mortem in nature. He proved the Post-mortem report (Exhibit-3) and FSL report (Exhibit4). 14. P.W. 5, Banshidhar Banerjee is the informant in the instant case. He stated that the victim was married to the accused. On 8th December, 2000 she died at her matrimonial home. On that day at about 9:00/9:30 P.M. he received information that the accused-appellant had burnt the victim. He rushed to the matrimonial home of the victim. He found that the body of the victim was lying outside the house in burnt condition. P.W.s 2 and 3 told him that they found the accused fleeing away from the spot after putting the shackle on the outside door. He informed the matter to Ukhra outpost. Police came to the spot. Police seized articles. Police also held inquest over the dead body of the victim. He put his signature on the inquest report. Upon the instruction of Dharam Bouri he wrote the written complaint. He put his signature thereon. He proved the written complaint (Exhibit-5). 15. In cross-examination, he stated that he cannot say the date of marriage between Khudiram and the victim. Police interrogated him on 10th December, 2000. He had not given any statement earlier. 16. P.W. 6, Ranjit Kumar Das is the Investigating Officer of the instant case. He deposed that on 8th December, 2000 he was attached to Andal Police Station and posted at Ukhra camp as in-charge. At about 21:15 hrs. some persons came to Ukhra outpost and informed that Bhabri Bouri had died in her house due to fire. He noted the incident as G.D. Entry No. 76 dated 8th December, 2000 and upon the direction of Officer-in-charge, Andal Police Station went to the place of occurrence. He found a cluster of persons there. From local people he came to know that Khudiram, husband of Bhabri Bouri had committed murder of his wife and had tried to burn the dead body. He informed the matter to the Officer-in-charge, Andal Police Station who in turn informed him that he had received the FIR over the incident. He proved the endorsement on the FIR (Exhibit-5/1). He also proved the formal FIR which was prepared and signed by Officer-in-charge, Andal Police Station. He prepared a rough sketch map with index of the place of occurrence (Exhibit-7). He proved the endorsement on the FIR (Exhibit-5/1). He also proved the formal FIR which was prepared and signed by Officer-in-charge, Andal Police Station. He prepared a rough sketch map with index of the place of occurrence (Exhibit-7). Over the same incident Andal U.D. Case No. 78 dated 8th December, 2000 was registered which was also investigated by him. He prepared inquest over the dead body. He seized two pieces of burnt bamboos, one burnt bamboo stick, one lantern, one bottle of kerosene oil, some burnt clothes and burnt straws under a seizure list (Exhibit-1/2). He examined Dharam Bouri. He proved the inquest report. He made prayer to the Executive Magistrate for holding inquest. Sri Satyajit Sen, Executive Magistrate conducted inquest over the dead body at S.D. Hospital, Durgapur. He signed on the inquest as witness. He proved the said inquest report (Exhibit-2/1). He prayed for issuance of warrant of arrest against the accused. Upon transfer he handed over the investigation to the Officer-in-charge. Subsequently, Sri B. N. Mallick submitted charge-sheet against the accused. 17. From the evidence on record it appears that the appellant was married to the victim. On the fateful night, local witnesses namely, P.Ws 1, 2 & 3 saw the house of the appellant on fire. They also noticed that the appellant was running away from the spot. They tried to apprehend him but failed. Appellant was also seen putting shackle on the door of his house. P.Ws 1, 2 & 3 found the victim lying dead in the house with burn injuries. P.W. 5 was intimated and he came to the spot. Police of Ukhra outpost was informed and P.W. 6 came to the spot. Written complaint was lodged by Dharam Bouri (since deceased), father of the victim. P.W. 5 scribed the complaint. P.W. 4 held postmortem over the body of the victim and upon receipt of FSL report opined that death of the victim was due to asphyxia as a result of strangulation and burns. It has been argued that the evidence of P.W. 1, 2 & 3 with regard to the fact that they saw the appellant running away from the spot is an afterthought. I have considered their evidence as a whole. It has been argued that the evidence of P.W. 1, 2 & 3 with regard to the fact that they saw the appellant running away from the spot is an afterthought. I have considered their evidence as a whole. P.W. 5, who came to the spot, deposed that P.W. 2 & 3 at the earliest opportunity had narrated to him that they had seen the appellant running away from the spot. Hence, I am inclined to believe that the said witnesses who were gossiping near the house of the appellant had seen him running away from the spot after shackling the door. Appellant also did not make any effort to douse the fire. Medical evidence clearly shows that the victim suffered homicidal death due to strangulation and burns. The appellant was married to the victim and used to reside with her at the matrimonial home. No explanation is forthcoming from the appellant as to how and under what circumstances his wife suffered homicidal death. 18. In the light of the aforesaid cogent and convincing evidence on record and that the appellant was seen running away from the place of occurrence after shackling the door and his failure to explain the circumstances under which his wife suffered homicidal death, I am inclined to uphold the conviction and sentence recorded against him. 19. The appeal is accordingly, dismissed. 20. The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 21. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 22. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.