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2018 DIGILAW 719 (CAL)

Bidhu Kisku v. State Of West Bengal

2018-09-27

JAY SENGUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Jay Sengupta, J. The appellant has challenged the judgment and order of conviction and sentence dated 31st August 2006 passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Paschim Midnapore in Sessions Trial Case No. 32 of November, 2005, thereby although holding the appellant not guilty for a charge under Section 498A of the Indian Penal Code, convicting him for the charge under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer rigorous imprisonment for one year. 2. On 23rd October 2001 at about 13:30 hours, PW 1, the younger brother of the victim Kajal, lodged a First Information Report against the appellant under Sections 498A and 302 of the Penal Code. PW 1 stated that the couple had married 9 years ago and had two sons from such marriage. He alleged that after her marriage, the victim was subjected to physical torture by her husband in respect of the purported mistakes in household work. They informed the local villagers who settled the dispute and thereafter the victim was living happily. But the appellant was a habitual drunkard. The appellant married again about a year before the date of occurrence. PW 1 further alleged that after the second marriage, the appellant created an unhealthy situation in the family and regularly assaulted the victim. After getting an information last night from the locals that the victim had died, PW 1 rushed to the house of the appellant and found the victim lying dead in the courtyard. He stated that the villagers informed them that the appellant had confessed before them that on the preceding evening at 6:30 p.m. the appellant killed the victim by throttling and with an iron rod. 3. Investigation of the case started. PW 18, the Investigation Officer held an inquest over the dead body on 23rd October 2001 at the place where the body was found. PWs 1, 7 and 11 were the witnesses to the said inquest. PW 18 found some bluish marks on the abdomen portion and at the back side of the dead body. The villagers told him that on 22nd October at about 5:30 p.m. the appellant killed the victim by throttling and with an iron rod. PWs 1, 7 and 11 were the witnesses to the said inquest. PW 18 found some bluish marks on the abdomen portion and at the back side of the dead body. The villagers told him that on 22nd October at about 5:30 p.m. the appellant killed the victim by throttling and with an iron rod. PW 17 held a post mortem examination of the dead body on 24th October 2001 at about 14:10 hours. He found the body quite decomposed. The opinion about the cause of death was kept pending the obtaining of the FSL report for the viscera. After going through the FSL report, which stated that the death not due to poisoning, during trial, PW 17 opined that the death was homicidal. The Investigating Officer submitted a charge-sheet under Sections 498A and 302 of the Penal Code against the appellant. 4. On 19th December 2005 charges were framed against the appellant under Sections 498A and 302 of the Penal Code. Since the appellant pleaded innocence, the trial commenced. To establish its case the prosecution examined as many as 18 witnesses. The case of the defence seemed to be a denial of the prosecution case. 5. After carefully perusing the evidence and other materials on record, it appears that PW 1 was the victim's brother and a post-occurrence witness. He lodged the First Information Report in this case scribed by PW 5. He deposed that the couple got married about 9 years ago. They had two children born of their wedlock. After marriage they had good relationship. But sometime later there was family feud and the appellant used to beat up the victim. They sat in the locality to settle the dispute. The appellant promised not to beat up the victim again, but still continued to do so. He submitted that after receiving the intimation about the appellant's death at 12:00 in the night, he went to her place at 6/6:30 hours. He learnt from the local people that last evening the appellant had beaten up the victim. After lodging the First Information Report, PW 1 also signed on the inquest report. He submitted that the local people had beaten up the accused which caused swelling injury on him. PW 1 also signed on a seizure list for an iron rod seized by the police. After lodging the First Information Report, PW 1 also signed on the inquest report. He submitted that the local people had beaten up the accused which caused swelling injury on him. PW 1 also signed on a seizure list for an iron rod seized by the police. He told the police that the victim was killed by putting an iron substance on her neck during her sleep. He deposed that the appellant had married thrice. In his cross-examination, PW 1 stated that he went to the police station for the first time at 7:30 hours. He stated in the First Information Report that he thought that the black mark on his sister's neck was as a result of pressing with an iron material. He identified the iron rod in Court. PW 2 was a neighbour of the appellant and a post-occurrence witness. The appellant made an extra-judicial confession to him, upon asking, that he had killed the victim by way of strangulation and by hitting on head with an iron rod. He deposed that PWs 3 and 4 were also present there at that time. He also deposed that the appellant had married another woman and that there had been quarrels in the house of the appellant. He was a signatory to the seizure list for the seizure of an iron rod. In the cross- examination, he admitted that he did not tell the police that PWs 3 and 4 were also present there. PW 3 was a neighbour of the accused and a post occurrence witness. He deposed that initially the couple had a good relation. Thereafter the appellant started behaving badly with the victim and beating her up. During subsistence of this marriage, the appellant married another woman named Dipali. They all sat for talks of a settlement over such behaviour of the appellant. But there was no respite in the beating. After the incident of murder when PW 3 came to the place of occurrence, he found a mark on the neck of the victim. The appellant made an extra judicial confession before him that he had killed the victim with an iron rod by putting it on her neck. PW 3 identified the said iron rod. He submitted that the appellant admitted his guilt before several persons. The appellant made an extra judicial confession before him that he had killed the victim with an iron rod by putting it on her neck. PW 3 identified the said iron rod. He submitted that the appellant admitted his guilt before several persons. In the cross-examination, PW 3 stated that the appellant had made the extra judicial confession also before PWs 2 and 4. PW 4 was another neighbour of the appellant and a post occurrence witness before whom the appellant made an extra judicial confession. When PW 4 came to the spot he saw the dead body lying on a verandah. He saw a mark on the appellant's neck and an iron rod lying nearby. The appellant admitted before him and Others that he had killed the victim by strangulation with an iron rod. PW 4 further deposed that at first the appellant used to treat the victim well, but thereafter started beating her up. There was a meeting in which the appellant promised that he would not beat up the victim any more. He deposed that the appellant had married thrice. In the cross, he admitted that he was not interrogated by the Investigating Officer. PW 5 was the scribe of the First Information Report. He deposed further that the appellant married again during the lifetime of the victim and that the appellant used to beat up and torture the victim almost on all days. PW 6 was the constable who carried the dead body of the victim for post mortem examination. PW 7 was a neighbour of the appellant and a witness to the inquest. He deposed that there were quarrels between the accused and the victim and that there were two meetings on this issue in one of which he was present. He deposed that the appellant married again during the lifetime of the victim. PW 7 was a post occurrence witness and found a mark on the neck of the victim. He deposed that the appellant admitted before him and Others that he had killed the victim by pushing an iron rod on her neck. PW 8 was a neighbour of the appellant and a post occurrence witness. He deposed that the appellant behaved badly with the victim and used to beat her up and abuse her verbally. During the victim's lifetime the accused married again. PW 8 was a neighbour of the appellant and a post occurrence witness. He deposed that the appellant behaved badly with the victim and used to beat her up and abuse her verbally. During the victim's lifetime the accused married again. They sat in a meeting over the trouble and the appellant told that he would not beat up the victim any more. But he continued with the beating. When PW 8 saw the victim's dead body on the verandah he found a mark of injury on her neck and blood oozing out of her nose. When they enquired from the appellant about the incident, he admitted killing the victim with an iron rod by pressing it on her neck. He identified the said iron rod. PW 9 was another neighbour of the appellant and a post occurrence witness. He deposed that there was a trouble between the appellant and the victim at about 6 p.m. when they went to the house of the appellant for a settlement and after that they came back. At about 10 p.m. he got the news of the victim's death from the elder brother of the appellant. PW 9 then went to the house of the appellant and saw the victim's dead body on the varandah. There was a mark of injury on the victim's neck and an iron rod was also lying there. The appellant admitted that he had killed the victim by thrusting an iron rod on her neck. He identified the said iron rod. He submitted that after the second marriage of the appellant he started treating the victim badly. PW 10 was tendered in evidence. PW 11 was another neighbour of the appellant. He was a post occurrence witness and a witness to the inquest. He deposed that the appellant used to beat up and abuse verbally his wife. He deposed that on the fateful day at about 4:30/5 p.m. there was a quarrel in the house of the accused between the accused/appellant and the victim. He came there and found the appellant having an iron rod to beat the victim. He and Others interfered and stopped it and then they went back home. He deposed that at about 6/6:30 p.m. the appellant's elder brother told that the victim died from a stroke. He came there and found the appellant having an iron rod to beat the victim. He and Others interfered and stopped it and then they went back home. He deposed that at about 6/6:30 p.m. the appellant's elder brother told that the victim died from a stroke. PW 11 went to the spot and found the dead body of the victim lying on the verandah and saw an injury mark on her neck. Upon enquiry, the appellant admitted before them that he had killed the victim by using an iron rod. He identified the iron rod. In the cross, PW 11 admitted that he had not told the Investigating Officer about the extra judicial confession made by the appellant. PW 12 was the mother of the victim. She gave evidence about the appellant beating up the victim and there being a meeting over such issue. But the appellant did not obey the 'salishi'. She came to the house of the appellant on the next morning and saw the dead body of the victim lying on the verandah. She saw a mark of injury on the victim's neck. She deposed that the appellant married again during the victim's lifetime. PWs 13 and 14 were tendered in evidence. PW 15 was a neighbour of PW 1 who had told her about certain quarrels in the matrimonial home of the victim. After the incident she went to the spot, found the victim's dead body lying on a verandah and saw a black mark on the victim's neck. PW 16 was the minor son of the appellant and the victim. He was found capable of understanding the questions put to him. He deposed that a neighbour told him that his father had killed his mother. At the relevant time he was playing outside. He deposed that the appellant had married twice. PW 17 was the post mortem doctor who held the post mortem examination on the dead body on 24th October 2001. He found the body decomposed. He found 2 centemeter broad dark coloured mark in front and both sides of the neck, extending more in the left side, up to the front of the lobule of left ear. On dissection, he found parchmentation of the deeper tissue. In the FSL report, no poison was detected in the viscera of the victim. He found the body decomposed. He found 2 centemeter broad dark coloured mark in front and both sides of the neck, extending more in the left side, up to the front of the lobule of left ear. On dissection, he found parchmentation of the deeper tissue. In the FSL report, no poison was detected in the viscera of the victim. He deposed that in view of the said report, his opinion would be more towards homicidal death. PW 18 was the Investigating Officer of the case. He knew the handwriting police officer who had drawn the formal FIR. Upon completion of investigation he submitted a charge-sheet against the appellant under Sections 498A and 302 of the Penal Code. In his examination under Section 313 of the Code, the appellant stated that he did not know how the victim died. He further stated that PWs 2, 3 and one Mukta Kisku made ligature mark on the neck of the victim with the help of iron rod. He further stated that PW 2 and one Habal Chakraborty concealed the rod in the place from where it was recovered. But, the appellant did not adduce any defence evidence. 6. Mr. P.S. Bhattacharyya the Learned Advocate appearing on behalf of the appellant submitted that there was a delay in lodging the First Information Report. The FIR was also silent on the names of persons before whom the purported extra judicial confession was made. He expressed surprise that no one else lodged the First Information Report despite there being an extra judicial confession and waited for the informant to come and do it. One Kamala Singh also seems to have informed the police as per PW 4. He submitted that although the de facto complainant had gone to the police station at about 7:30 a.m. on the next day the FIR was started only at 13:30 hours. All these, according to him, raised a suspicion about implication of the appellant. The Learned Advocate submitted that PW 2 gave a different version of the extra judicial confession than were given by others. He submitted that the seizure of the iron rod was bad in law. As regards the alleged assault on the appellant, the records did not bear out the same. The Learned Advocate submitted that the extra judicial confession purportedly made by the appellant was not put to him under Section 313 of the Code. He submitted that the seizure of the iron rod was bad in law. As regards the alleged assault on the appellant, the records did not bear out the same. The Learned Advocate submitted that the extra judicial confession purportedly made by the appellant was not put to him under Section 313 of the Code. He submitted that the extra judicial confession should not be believed in this case where there is no other evidence available to corroborate the same. 7. Mr. Ranabir Roychowdhury, the Learned Advocate appearing on behalf of the State submitted that the FIR clearly states about the extra judicial confession although the names of persons before whom it was made were not mentioned. He submitted that this is not fatal to the prosecution case. The Learned Advocate submitted that in this case based on circumstantial evidence, motive for murder assumes much importance. He submitted that in this case the disputes between the couple, second marriage of the appellant and holding of 'salish' gave out a clear motive behind the offence. He submitted that PWs 2, 3, 4 and 11 deposed about hearing extra judicial confession made by the appellant. PW 11 a neighbour deposed about a quarrel that had taken place at about 4:30/5 p.m. between the couple and in fact, saw that the appellant was going to hit the victim with an iron rod. The appellant was made to desist and they came back at about 6:30 p.m. The appellant's brother told PW 11 that the victim had died of stroke. It is interesting to note that there was no cross-examination of PW 11 over the purported incident of 4:30/5 p.m. The Learned Advocate further submitted that the prosecution case was fully corroborated by the evidence adduced by the post mortem doctor. 8. We have carefully gone through the evidence and other materials on record and have given our thoughtful consideration to the submissions advanced by the Learned Advocates of both the parties. 9. Since the prosecution case is based totally on circumstantial evidence, it is required to be seen whether the chain of circumstances appearing against the appellant is complete and whether it unerringly points towards the guilt of the appellant. 10. First, motive assumes a great deal of significance in a case based on circumstantial evidence. 9. Since the prosecution case is based totally on circumstantial evidence, it is required to be seen whether the chain of circumstances appearing against the appellant is complete and whether it unerringly points towards the guilt of the appellant. 10. First, motive assumes a great deal of significance in a case based on circumstantial evidence. In this case motive to murder can be derived from the circumstances like the appellant often quarrelling with the victim and beating her up, the appellant having to undergo a 'salish' because of this and the appellant entering into more than one marriage. PWs 1, 2, 3, 4, 5, 7, 8, 11, 12 and 15, out of whom PWs 2, 3, 4, 5, 7, 8, 11 and 15 were independent witnesses, deposed about the appellant having frequent quarrels with the victim and beating her up. PWs 1, 3, 4, 7 and 8 deposed about 'salish'. Out of them only PW 1 was a relation of the victim. PWs 1, 2, 3, 4, 5, 7, 11 and 16 all gave evidence that the appellant married at least for the second time. 11. The fact that at the relevant time the appellant and victim were both staying in the matrimonial home of the victim is not in doubt. 12. There was a prior incident that took place in the evening of the fateful day, which has a very important bearing on this case. PWs 9 and 11, two independent neighbours deposed that there was a trouble in the appellant's house and they had to go to settle the same. PW 11 even deposed that the appellant was about to assault the victim with an iron rod. This evidence of PWs 9 and 11 can be safely regarded as last seen together evidence connecting the appellant and the victim only about a few hours prior to the incident. 13. Next in sequence, comes the issue of extra-judicial confession made by the appellant clearly and cogently admitting how he murdered his wife, the victim. PWs 2, 3, 4, 7, 8, 9 and 11 deposed about it. All of them were independent neighbours. There is no iota of evidence to show that they had any enmity with the appellant. In fact, PWs 2 and 3 deposed about the extra-judicial confession being made before each other and before PW 4. PWs 2, 3, 4, 7, 8, 9 and 11 deposed about it. All of them were independent neighbours. There is no iota of evidence to show that they had any enmity with the appellant. In fact, PWs 2 and 3 deposed about the extra-judicial confession being made before each other and before PW 4. It will be grossly improper to disbelieve the evidence adduced by these natural and independent witnesses. 14. PWs 1, 3 and 9, who were post-occurrence witnesses, identified the offending weapon an iron rod seized from the house of the appellant. PW 2 was a seizure list witness for the same. 15. Thus the chain of circumstances appearing against the appellant appears to be complete. 16. The medical evidence, adduced by the post mortem doctor PW 17, too fully corroborated the prosecution case. 17. The contention of the Learned Advocate for the appellant about why did all wait for the victim's brother to come and lodge a First Information Report despite there being an extra-judicial confession does not evoke any suspicion. This is not so much of an unnatural conduct. Furthermore, whether any Kamala Singh had earlier intimated the police and what was nature of intimation have not clearly come in evidence. So, no unnecessary doubt can be created here either. In any event, the purpose of lodging a First Information Report is only to set criminal law in motion. The fate of the case would be determined by evidence and other materials on record. 18. The fact that the issue of extra-judicial confession was not expressly put to the appellant under Section 313 of the Code is important indeed. But, for affecting an order of conviction and sentence, one has to show that by such omission a prejudice was caused to the appellant. In the present case, the charge as read over to the accused was very clear. The evidence was taken in presence of the appellant and from the trend of cross-examination it is clear that the appellant was quite aware of the issue of extra-judicial confession. 19. On the contrary, the appellant failed to provide any satisfactory explanation for finding of his wife murdered in his house. 20. This is not a case based on extra-judicial confession alone. There is clear evidence on motive and last seen together, among other things. 19. On the contrary, the appellant failed to provide any satisfactory explanation for finding of his wife murdered in his house. 20. This is not a case based on extra-judicial confession alone. There is clear evidence on motive and last seen together, among other things. Moreover, the extra-judicial confession was quite consistent and made, inter alia, before several independent neighbours. The medical evidence also corroborated the prosecution case in full measure. 21. The evidence and the other materials on record, thus, indubitably point towards the guilt of the appellant. 22. In view of the above discussions, we hold that the prosecution case has been proved beyond any reasonable doubt as against the appellant and hence, the appeal is dismissed and the conviction and sentence are upheld. 23. A copy of the judgment along with the Lower Court records may be sent down to the learned Trial Court forthwith for information and necessary action. 24. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. I agree - Md. Mumtaz Khan, J.