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2019 DIGILAW 203 (CAL)

Kamal Das v. State of West Bengal

2019-02-08

JAY SENGUPTA, MD.MUMTAZ KHAN

body2019
JUDGMENT : MD. MUMTAZ KHAN, J. 1. This appeal has been preferred by the appellant assailing the judgment and order of conviction dated December 20, 2008 and sentence dated December 22, 2008 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Siliguri in Sessions Trial No. 11/07 arising out of Sessions Case No. 31(S) 06 thereby convicting the appellant for commission of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and sentencing him to suffer imprisonment for life and to pay fine of Rs. 1,000/-in default to suffer rigorous imprisonment for two months with a direction for set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). 2. The prosecution case, in brief, is as follows: On November 29, 2005 at about 10.30 p.m. appellant picked up quarrel with his wife, the victim, and during altercation struck the victim on her head by an axe causing severe cut and bleeding injuries therefrom. Appellant after having struck the victim by a axe also struck with that axe on his own head. 3. Pw1, on hearing cries went to the house of the appellant and saw marks of profuse bleeding in the courtyard and inside the room of the appellant. There he heard from the persons assembled that a scuffle took place between the appellant and the victim and both of them were taken to the Phanshidewa Block Primary Health Centre where the victim was declared dead. On the basis of the information received from the hospital one UD case was started at Phanshidewa P.S. 4. On the same night at 03.05 hrs., PW 1, a Panchayat Member and neighbour of the appellant, lodged a complaint scribed by PW15 (Ext 1/ 2), at the Phanshidewa Police Station. On the basis of that complaint, PW12 started Phanshidewa P.S. Case No. 222 dated November 30, 2005 under Section 302 IPC against the appellant and endorsed the case to SI, Aloke Manzumdar, since deceased, for investigation. 5. Inquest over the dead of the victim was held on the same night at 00.55 hrs. by SI, Aloke Mazumdar in presence of PW6, PW7 and Lina Gurung, a Staff Nurse of the Phanshidewa BPHC and during inquest name of the appellant surfaced as the assailant. 6. 5. Inquest over the dead of the victim was held on the same night at 00.55 hrs. by SI, Aloke Mazumdar in presence of PW6, PW7 and Lina Gurung, a Staff Nurse of the Phanshidewa BPHC and during inquest name of the appellant surfaced as the assailant. 6. Postmortem examination over the dead body of the victim was also conducted on the same date by PW 14. During postmortem examination doctor( PW 14) found incised wounds 3" x 1 1/2" x 2" over the right side head and on midline forehead right side and opined that those injuries were caused by sharp cutting weapon and death was due to the effects of the injuries which were ante-mortem and homicidal in nature. On being shown the axe (Mat Exhibit 1) he opined that the injuries might have been caused by the same. 7. Thereafter, on completion of investigation SI, Aloke Mazumdar submitted charge sheet against the appellant under section 302 IPC. 8. On May 22, 2007, charge under Section 302 IPC was framed against the appellant and on his pleading not guilty to the charge, trial commenced. 9. Prosecution in order to prove it's case, examined 17 witnesses and also produced and proved the FIR, seizure list, inquest report, post mortem report, rough sketch map with index, the weapon of offence (axe) etc. and thereafter on completion of trial after examination of the appellant under Section 313 Cr.P.C., learned trial Judge passed the impugned judgment. 10. Mr. Partha Sarathi Bhattacharya, learned Advocate appearing for the appellant submitted that the judgment, order of conviction and sentence are not sustainable in law as there was no eye witness to the crime and the entire case is based on circumstantial evidence but the prosecution failed to prove the chain of circumstances, investigation started prior to the lodging of the complaint, both the appellant and the victim were taken to the hospital having injuries on their person but there was no explanation with regard to the injury on the person of the appellant, factum of seizure of weapon of offence was not proved by the seizure witnesses, blood-stained bedding, clothes, axe etc. reportedly seized were not sent to the FSL for chemical examination, axe though shown to the P.M. doctor but no help of the fingerprint expert was taken to prove the charge of murder against the appellant. reportedly seized were not sent to the FSL for chemical examination, axe though shown to the P.M. doctor but no help of the fingerprint expert was taken to prove the charge of murder against the appellant. He further submitted that it was a dark night and excepting FIR and the evidence of P.W.1 there is nothing in the evidence about the manner in which the incident took place. Alternatively, it was submitted by Mr. Bhattacharya, that even if P.W.1 is believed, there is no iota of evidence to show that the appellant and victim had bitter relationship and the appellant had any such intention or motive to cause death of his wife and as such at best provision of Section 304 Part II IPC is applicable and not Section 302 IPC. 11. Mr. Bhattacharya relied on the decision of K.Ravi Kumar Vs. State of Karnataka reported in, (2015) 2 SCC 638 in support of his submission with regard to the applicability of provision of Section 304 Part II IPC in the facts and circumstances of the case. 12. Mr. N.P. Agarwalla, the learned Advocate appearing for the State, submitted that the incident took place around mid-night in the house of the appellant where the appellant was very much present and it is the appellant who can explain the cause of death of his wife. Moreover, inquest report clearly discloses that there was quarrel between the appellant and the victim and the appellant struck the victim by an axe. He further submitted that most of the witnesses are neighbours and relatives of the appellant and as such turned hostile and suppressed the truth in order to save the appellant. He also submitted that on hearing hue and cry PW3, PW4, PW5 and PW7 went to the house of the appellant and saw the appellant's wife in a pool of blood. Even the police officers including the investigating officer who immediately came to the place of occurrence saw the appellant sitting in the room and the victim lying in the pool of blood. According to him, prosecution has been able to prove the charge against the appellant beyond any shadow of doubt and the trial Judge was justified in passing the order of conviction and sentence against the appellant. 13. According to him, prosecution has been able to prove the charge against the appellant beyond any shadow of doubt and the trial Judge was justified in passing the order of conviction and sentence against the appellant. 13. We have considered the submissions of the learned Advocates appearing for the respective parties and gone through the evidence and materials of record to consider the propriety of the impugned judgment passed by the learned trial Judge. 14. From the evidence of PW14 (doctor) and the postmortem report (Ext.6) it is evident that on November 30, 2005 during postmortem examination over the dead body of the victim, doctor found incised wound 3" X 1 1/2" X 2" over right side head and incised wound obliquely placed midline forehead over right side head and there was depressed comminuted fracture involving right parietal and temporal bone and opined that the death was due to the effects of the above injuries, antemortem and homicidal in nature, caused by sharp cutting weapon. On being shown the Mat.Ext.I (axe) he deposed that those injuries might have been caused by the same. He was cross examined by the defence but nothing came out contrary to his statements made in-chief. In such circumstances, there appears no reason to disbelieve the version of the autopsy surgeon. 15. Evidently, none of the witnesses examined by the prosecution are witness to the occurrence and the case is based on circumstantial evidence. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. 16. Pw1 is the Panchyat Member and neighbour of the appellant who lodged the complaint. According to PW1, on the relevant date at about 10.30 p.m. on getting information from sons of Somra Karmakar and Late Ananda Mohan Debnath relating to a dispute going at the house of the appellant, he went to the house of the appellant and found blood marks in the courtyard as also inside the room of the appellant. There he heard from the persons assembled that a scuffle took place between the appellant and his wife and both of them were injured and were taken to Phanshidewa BPHC. There he heard from the persons assembled that a scuffle took place between the appellant and his wife and both of them were injured and were taken to Phanshidewa BPHC. He then went to that hospital and saw the dead body of the victim lying in the hospital and also saw the appellant in the hospital with injuries on his head. He then lodged the complaint (Ext.1/2) at the P.S. being scribed by PW15 as per his dictation. Evidently, he was the post occurrence witness and admitted that he had no personal knowledge as regards the cause of receiving injuries by the accused and his wife. Defence by putting suggestion to this witness tried to prove that the appellant and the victim sustained injuries in a dacoity which he did not admit. 17. Pw 2, a neighbor of the appellant, though admitted that wife of the appellant was murdered and the appellant was hospitalized but pleaded his ignorance as to who murdered the victim. As he did not support the prosecution case, he was declared hostile by the prosecution and was challenged that during investigation he stated to the investigating officer that on November 30, 2005, appellant and his wife started living at their locality by constructing a house but during their stay in the locality almost everyday they used to quarrel between themselves and on the relevant night also there had been a quarrel between them and on hearing cries he rushed to the house of the appellant and found his wife lying dead on the floor of their bed room and the appellant having injuries on his head and neighbours and brothers of the appellant took both of them to the Phanshidewa BPHC where the wife of the appellant was declared dead. He also denied that he stated to the investigating officer that in course of quarrel appellant assaulted his wife with an axe on her head and after that appellant struck with the same axe on his own head and as per his direction his son informed the Panchayat Member and now in order to save the appellant he has suppressed the truth. He, however, clearly admitted during cross-examination that on the relevant night there was no dacoity in their locality. 18. Pw 3 is the cousin brother of the appellant. He, however, clearly admitted during cross-examination that on the relevant night there was no dacoity in their locality. 18. Pw 3 is the cousin brother of the appellant. According to him, on the relevant night at about 10.30 p.m while he was sleeping, he heard a hue and cry from the house of the appellant. He then went there and found appellant and his wife lying in injured condition and profuse blood marks inside the room. As he also did not support the prosecution case, he was declared hostile by the prosecution and was challenged that during investigation he stated to the investigating officer that on November 29, 2005 at about 10-10.30 p.m. while he was going to sleep after taking meal, he heard hue and cry and came out from the house and found the appellant shouting by saying that he had murdered his wife to which he denied. He also denied that he stated to the IO that appellant inflicted injury on his own person and they took both the appellant and his wife to Phanshidewa BPHC where the appellant's wife was declared dead. But he also admitted that no dacoity ever occurred at the house of the appellant. 19. Pw 4 and PW5 are relatives of the appellant, PW6 and P.W.7 are the elder brothers of the appellant, PW 8 is a rickshaw puller while PW9 is the elder sister of the appellant. Though they admitted that on the relevant night on hearing hue and cry they had been to the house of the appellant and found the victim lying having severe bleeding injuries and the appellant was also having injury on his head but did not support the prosecution case and as such they too were declared hostile by the prosecution and were cross examined by the prosecution. They even denied that they were examined by the IO and/or stated anything to him. However, PW6 admitted that on the relevant night at about 10.00/10.30. p.m. while they were sleeping, PW 5 called his wife and told her that he heard shouting of appellant. They even denied that they were examined by the IO and/or stated anything to him. However, PW6 admitted that on the relevant night at about 10.00/10.30. p.m. while they were sleeping, PW 5 called his wife and told her that he heard shouting of appellant. Accordingly, he, his wife, PW 5 along with others went to the house of the appellant which is intervened by two houses and found the appellant lying in the courtyard and there were marks of bleeding on his body and found his wife lying with severe bleeding injuries and both of them were senseless. On being informed, police came and seized one axe with blood-stained marks, bed sheet on which victim was lying, pillow cover, blood-stained earth in their presence and he put his LTI on the seizure list and PW 16 and PW17 signed thereon. On his identification those articles were collectively marked as Material Ext. I. Even during cross examination by the defence he specifically stated that he had been to the house of the appellant being led by PW 5 and the axe was seized which was 20ft. away from the room of the appellant. He also stated that men of father's house of the victim intended to lodge a complaint at the police station but they were restrained by the villagers on the plea that Rita had already been murdered and the appellant was already hospitalized, so against whom complaint would be lodged. PW 16, nephew of the appellant, and PW17, the other witnesses of the seizure, though did not say anything with regard to seizure but admitted and identified their signatures (Ext.8/1 and 8/2) on the seizure list (Ext.8). 20. Pw10 is the photographer who took photograph of the place of occurrence. PW11 is the S.I. of police who accompanied the investigating officer to the house of the appellant and found the appellant sitting in the courtyard and one blood-stained axe lying in the room about 2 to 2 1/2 cubits away from the appellant and also found wife of the appellant lying with severe blood injury on her head in senseless condition. They then with the help of local people sent the victim and the appellant to Phanshidewa BPHC where the wife of the appellant succumbed to her injuries. I.O. held inquest over the dead body of the victim at the Phansidewa hospital. They then with the help of local people sent the victim and the appellant to Phanshidewa BPHC where the wife of the appellant succumbed to her injuries. I.O. held inquest over the dead body of the victim at the Phansidewa hospital. Appellant was released from the hospital on December 2, 2005 and as the investigating officer was away from the station on that date so PW11 as per direction of the Officer-in-charge (PW12) arrested the appellant and forwarded him to Court. He specifically stated during cross examination that appellant was with sense when they saw him inside his room and that door of the bed room was open and that the house of the appellant was of a single room and there was no electricity in the house and there was only a lamp in the room. He also specifically stated that no incident of theft or robbery took place in Das Para. He, however, admitted during cross-examination that on the relevant night when they had been to the house of the appellant till then no specific case was started and that a portion of investigation was held prior to the starting of a specific case. 21. Pw 12 is the Officer In Charge of Phanshidewa Police Station who received the complaint started the case against the appellant and endorsed the case to SI., Alok Mazumdar for investigation. He proved the formal FIR (Ext.3) and his signature and endorsement (Ext.1/1) on the complaint (Ext.1). He also stated that on being directed by him, PW 11 arrested the appellant on his release from the hospital as on that date IO of the case was out of station for deposing in connection with a Sessions case. He also proved the rough sketch-map with index (Ext.7), seizure lists (Exts. 2/2, 8 and 12), inquest report (Ext.9), dead body challan (Ext.10) and command certificate (Ext.11) prepared by the I.O. SI., Alok Mazumdar, since deceased. He admitted during cross examination that immediately after the incident they were informed and that prior to staring of the case, force had been sent to the spot to ascertain what had happened. He further deposed that he was informed by the police personnel he sent to the spot that appellant's wife has succumbed to the injuries on her way to the hospital and the appellant was referred to North Bengal Medical College and Hospital from Phanshidewa BPHC with injury. He further deposed that he was informed by the police personnel he sent to the spot that appellant's wife has succumbed to the injuries on her way to the hospital and the appellant was referred to North Bengal Medical College and Hospital from Phanshidewa BPHC with injury. He also deposed that prior to staring of a specific case, on the basis of the information received from the hospital one UD case was started. There is no whisper whether seized articles were sent to FSL or not nor any report to that effect was brought on record. Moreover, I.O. is already dead. 22. Pw 13 is the doctor of North Bengal Medical College and Hospital. According to him, on November 30, 2005 appellant was admitted at their hospital with head injury referred from Phanshidewa BPHC for treatment and he had no other injury and he remained in that hospital till December 2, 2005. CT scan of the patient was done but the same disclosed nothing abnormal and the injury on the head of the patient was simple in nature. 23. Undoubtedly, there is some laches on the part of the investigating officer in not obtaining any report from the FSL relating to blood found on the axe, wearing apparels, beddings etc. but it is settled law that for certain defects in investigation or lapses on the part of the investigating officer, the accused can not be acquitted. Moreover, I.O. is already dead. 24. We find from the evidence of PW 12 that prior to the staring of a specific case one information was received from the hospital about death of the victim and accordingly one UD case was started. Inquest report (Ext.9) shows that victim died at 22.45 hrs on November 29, 2005 which was reported to the P.S. at 00.05 hrs. on November 30, 2005 and inquest over the dead body of the victim commenced on the same night at 00.55 hrs. in connection with the Phansidewa P.S. UD Case No.65/05 dated November 30,2005, dead body challan was prepared and the P.M. Examination was held in connection with that UD case. Ext.1/2 (written complaint) and Ext.3 (formal FIR) shows it was received at the P.S. on the very night at 03.05 hrs. Rough sketch map, seizure-lists etc. show that those were prepared in connection with the specific case started after lodging of the complaint. Ext.1/2 (written complaint) and Ext.3 (formal FIR) shows it was received at the P.S. on the very night at 03.05 hrs. Rough sketch map, seizure-lists etc. show that those were prepared in connection with the specific case started after lodging of the complaint. There appears no irregularity which can render the prosecution case doubtful. 25. Therefore, our interference with the impugned judgment is not required on the above grounds. 26. Thus, from the evidence of the prosecution witnesses, duly affirmed by the appellant during his examination under section 313 Cr.P.C., it was evident that on the relevant night only appellant and the victim/wife were in the house. It has also come out from the evidence on record that the victim sustained severe cut and bleeding injuries on her head which resulted in her death and appellant also got one injury on his head. PW 14,the doctor, during postmortem examination found incised wounds over the head of the victim and opined that those injuries were caused by sharp cutting weapon and death was due to the effects of the head injuries ante-mortem and homicidal in nature and the injuries might have been caused by Mat Exhibit 1. On the other hand, P.W.13, the surgeon, found CT scan of the appellant did not disclose any abnormality and the injury of the appellant was simple in nature and save and except that injury on his head there was no other injury on his person. This also found corroboration from the appellant's statements recorded under section 313 Cr.P.C. The weapon of offence namely the axe (Mat. Ext.I) having blood stains seized from the house of the appellant was duly proved by the seizure witness PW 6. This also found affirmation from PW 16, nephew of the appellant and PW17 who identified their signatures on the seizure list (Ext.8). The plea of dacoity taken by the defence was neither supported by P.W.1 nor from any quarter rather specifically denied by P.W.2 as also by PW3, the cousin brother of the appellant. Even P.W.5, sister-in-law of the appellant found the belongings of the room were in order thereby ruling out the possibility of dacoity/robbery/theft. Both appellant and the victim/wife were in the house alone on the relevant night and she sustained incised wounds on her head resulting in her death. Even P.W.5, sister-in-law of the appellant found the belongings of the room were in order thereby ruling out the possibility of dacoity/robbery/theft. Both appellant and the victim/wife were in the house alone on the relevant night and she sustained incised wounds on her head resulting in her death. So, it was within the special knowledge of the appellant to explain how she sustained those injuries on her head as per provisions of Section 106 of the Evidence Act but the appellant failed to discharge that burden. Even during his examination under section 313 Cr.P.C. excepting bald denial and plea of innocence nothing was put forth with regard to injuries of the victim. The only plea taken by the appellant during his examination under section 313 Cr.P.C. that he was senseless being assaulted by someone but that claim of the appellant did not find support from P.W.11 who found him sitting in the room. FIR was lodged promptly by P.W.1 on the same night implicating the appellant, appellant was seen together with the victim in the house by the witnesses which fact the appellant himself affirmed during his examination under section 313 Cr.P.C. During inquest also appellant's name surfaced as the assailant of the victim. Nothing was brought on record to show any enmity between appellant and P.W.1 to implicate him falsely. The plea of dacoity has fallen flat in view of denial by the relation as also villager of the appellant. Mere bald denial and plea of innocence will not absolve the appellant from discharging the burden. 27. Therefore, taking in account the evidence of the prosecution witnesses on record and the circumstances discussed herein above, there remains no scope to disbelieve the prosecution story that it was the appellant who inflicted injuries on the head of the victim/wife during quarrel by an axe and thereafter struck himself by the same weapon on his own head causing injury thereon. Learned trial judge on scrutiny of the evidence on record and circumstances leading to the death of the victim arrived at an obvious conclusion that it was the appellant who caused the death of the victim/wife. We do not find any fault in the decision making process of the learned trial judge to arrive at the conclusion that it was the appellant who caused the death of the victim/wife. 28. We do not find any fault in the decision making process of the learned trial judge to arrive at the conclusion that it was the appellant who caused the death of the victim/wife. 28. Therefore, our interference with the impugned judgment is not required on that ground. 29. The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304 Part I or Part II IPC as raised by the learned Advocate for the appellant. In State of UP Vs. Lakhmi reported in, (1998) 4 SCC 336 , the Hon'ble Supreme Court altered the conviction of the appellant under Section 302 IPC to one under Section 304 Part I IPC considering the circumstances which indicated that the appellant acted under grave and sudden provocation on seeing something lascivious between his wife and another person just when he returned to his house from the field. 30. In K.Ravi Kumar Vs. State of Karnataka reported in, (2015) 2 SCC 638 , the Hon'ble Supreme Court gave benefit of Exception 4 to Section 302 and altered the conviction of the appellant under Section 302 IPC to one under Section 304 Part II IPC considering the circumstances which indicated that there was no premeditation in the commission of crime, no conclusive evidence that appellant had any predetermined motive or enmity to commit any offence, incident occurred due to sudden quarrel between the accused and the deceased/wife over going to village to see accused's ailing father resulting in appellant losing mental balance and poured kerosene oil and set her on fire and no conclusive evidence was adduced to prove any kind of constant quarrel ever ensued in last nine years between the couple which could lead to killing the victim or any unsuccessful attempt was ever made by the appellant to kill her in the past and no evidence of stab injury or any blood stained knife was recovered from the place of occurrence at the instance of appellant or of any witness. 31. In the case in our hand we find from the FIR (Ext1/2) that there was a quarrel between the appellant and the victim/wife and the appellant struck the victim with an axe. This also found corroboration from inquest report (Ext.9) prepared by the investigating officer in presence of P.W.6, P.W.7 and others. 31. In the case in our hand we find from the FIR (Ext1/2) that there was a quarrel between the appellant and the victim/wife and the appellant struck the victim with an axe. This also found corroboration from inquest report (Ext.9) prepared by the investigating officer in presence of P.W.6, P.W.7 and others. There was no evidence on record to show that after inflicting such injuries on the victim appellant tried to flee away from the scene. On the other hand, it has also come out from the FIR that appellant after striking the victim/wife by an axe also struck on his own head by that axe causing injury thereon. It is a different matter the injury found on the head of the appellant was not serious, but one but fact remains that he had to be hospitalized for such injury. Thus, it appears that though the appellant struck the victim with an axe on her head but we do not find any conclusive evidence on record that appellant had predetermined motive or enmity or intention to kill his wife, the victim but it seems that it had occurred in a fit of anger on sudden provocation due to quarrel between the appellant and the deceased/wife over family matters which probably deprived him of his power of self control. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellant under Section 302 of IPC. The learned Court below failed to consider at the time of passing the judgment that no evidence was brought on record to prove that there had been an intention to cause death and/or that it was a preplanned cold blooded murder on the basis of long time conspiracy. Therefore, the impugned judgment and the order of conviction and sentence are liable to be interfered with. 32. Accordingly, we allow this appeal to the extent that the conviction of the appellant under Section 302 is altered to one under Section 304, Part-II of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed upon the appellant and the default sentence awarded to him remain unaltered. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed upon the appellant and the default sentence awarded to him remain unaltered. The period of detention of the appellant undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428 Cr. P. C. 33. This appeal is thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above. 34. Copy of this judgment along with the lower court records be sent down to the trial court expeditiously by a Special Messenger for information and necessary action. 35. Urgent photostat certified copy of this judgment, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard. I agree - Jay Sengupta, J.