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2019 DIGILAW 326 (CAL)

Shakti Rai v. State of West Bengal

2019-03-07

JAY SENGUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Jay Sengupta, J. 1. This appeal is directed against the judgment and order of conviction dated 30.11.2007 and sentence dated 01.12.2007 passed by the Learned Additional Sessions Judge, Kalimpong, Darjeeling in Sessions Case No. 10/2006, thereby convicting the appellant under Section 302 of the Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default to suffer a further rigorous imprisonment for two years. By the same judgment and order, the appellant was acquitted from the charge under Section 498A of the Penal Code. 2. On 15.05.2006 at about 12.15 hours PW 11, the local Panchayat Pradhan lodged a First Information Report with the Officer-in-Charge of the Jaldhaka Police Station against the appellant under Sections 498A and 302 of the Penal Code. It was alleged that at about 9.00 hours on that day two local men came to the de facto complainant and informed him about the death of the victim Santa Rai. PW 11 went to the victim's house and found her deadbody lying on the bed. Upon an enquiry with PW 9, he learnt that on 14.05.2006 at night the appellant had assaulted his wife, the victim/deceased after chasing her from one place to another. Upon query, the appellant admitted before PW 11 that he had killed the victim. 3. Investigation commenced. PW 13 conducted an inquest over the deadbody of the victim on 15.05.2006 at about 9.45 hours in connection with a UD case in presence of PWs 1, 2, 3, 4 and 11. PW 13 came to the shop of the appellant and found the deadbody lying in the bed room. The preliminary investigation revealed that on the fateful night there was a quarrel and a fight between the appellant and the victim that culminated in the death of the victim. A post-mortem examination over the deadbody was conducted on 16.05.2006 at about 14.00 hours. Several injuries were found on the body of the victim. It was opined that the death was due to the effects of injuries, which were ante-mortem and homicidal in nature. A charge-sheet was submitted after completion of investigation. On 27.11.2006, charges were framed against the appellant under Sections 498A and 302 of the Penal Code. The appellant pleaded not guilty and claimed to be tried. During trial, the prosecution examined sixteen witnesses to establish its case. A charge-sheet was submitted after completion of investigation. On 27.11.2006, charges were framed against the appellant under Sections 498A and 302 of the Penal Code. The appellant pleaded not guilty and claimed to be tried. During trial, the prosecution examined sixteen witnesses to establish its case. The defence case was mainly that of a denial of the prosecution case. 4. After carefully perusing the evidence on record, it appears that PW 1 was a local man who was an eye-witness to the initial assaults committed by the appellant upon the victim. After hearing a ruckus, PW 1 saw from his window that the appellant was assaulting his wife. When the wife/victim managed to flee out of the shop, the appellant chased and caught her. Then he dragged her and started beating her mercilessly. He even tore away the wearing apparels of his wife. Thereafter, the appellant dragged her inside the shop. On the next morning, he found the victim lying dead on the floor of the shop of the appellant. The appellant confessed before him and others that he had assaulted his wife resulting in her death. In his cross-examination, PW 1 admitted that he did not see when and how the victim died. He also admitted that the victim had also consumed liquor and that due to consuming of liquor by the victim, quarrels used to take place between the husband and the wife. PW 2 was another local man and a post-occurrence witness. He found the deadbody of the victim in the house and informed others about it. He was a witness to the inquest. PW 3 was the daughter-in-law of the appellant and the victim. She deposed that on that particular night she was staying at a neighbour's house. The appellant asked for the keys of the house at night. In the next morning, she came to know about the incident. PW 3 was a post-occurrence witness who found injuries on the body of the victim. But she was declared hostile. In her cross, she admitted that there was good relation between the appellant and the victim. PW 4 was a co-villager who had not been examined by the police. He was a witness to the inquest. He deposed that the relation between the appellant and the victim was not cordial and that the appellant used to assault the victim. In her cross, she admitted that there was good relation between the appellant and the victim. PW 4 was a co-villager who had not been examined by the police. He was a witness to the inquest. He deposed that the relation between the appellant and the victim was not cordial and that the appellant used to assault the victim. PW 5, another co-villager, was a post-occurrence witness and a seizure list witness for the seizure of weapon, etc. He deposed that the appellant had confessed his guilt before him. PW 6 was another co-villager and a post-occurrence witness. He deposed that the appellant stated that the victim died of consuming liquor. He was declared hostile. But, in his cross-examination, he admitted that the appellant had made an extra-judicial confession regarding his wife's murder. Although, a seizure list witness for the offending weapon, etc, he claimed that he did not know from where those were recovered. PW 7 was the son of the victim and the appellant. He deposed that the appellant used to drink and physically abuse the victim. PW 8, another son of the victim and the appellant, also deposed that the appellant used to drink and physically abuse the victim. But, he was not examined by the Investigating Officer. PW 9 was the President of a local Womens' Organisation. She was a post-occurrence witness and deposed that the victim used to complain about physical abuse by the appellant. PW 10, the secretary of the said Womens' Organisation, also deposed that the victim used to complain about physical abuse by the appellant. PW 11, the Panchayat Pradhan, was the de facto complainant of the case and a witness to the inquest and seizure. He deposed that the appellant confessed of his guilt before him. In his cross-examination, PW 11 stated that the victim had given a written complaint earlier. PW 12 was the constable who carried the deadbody of the victim for post-mortem examination. PW 13 was the police officer who held the inquest over the deadbody. PW 14 was the last Investigating Officer who submitted the charge-sheet in this case. PW 15 was the Investigating Officer of the case who did bulk of the investigation. He arrested the accused on 15.05.2006. He seized the offending weapon. As the original seizure list was lost in transit, so the carbon copy of the same was used. PW 14 was the last Investigating Officer who submitted the charge-sheet in this case. PW 15 was the Investigating Officer of the case who did bulk of the investigation. He arrested the accused on 15.05.2006. He seized the offending weapon. As the original seizure list was lost in transit, so the carbon copy of the same was used. PW 16 was the doctor who conducted the post-mortem examination over the deadbody on 16.05.2006 at about 14.00 hours. He opined that the victim's death was caused due to the injuries inflicted, which were ante-mortem and homicidal in nature. According to him, the death took place within 24 hours of the post-mortem examination. He opined that the murder might have been committed with a blunt weapon like a wooden scalpel. In his cross-examination, he categorically said that the death could not have been accidental. 5. Mr. Subir Ganguly, the Learned Advocate appearing on behalf of the appellant, vehemently opposed the judgment and order of conviction and sentence. He submitted that the conviction was based primarily on the testimony of one partial eye-witness and on the basis of an extra-judicial confession, which is itself a weak piece of evidence. He contended that PW 1, the only partial eye-witness, did not say certain things to the Investigating Officer. It was only on the next day that PW 1 came to know about the death of the victim. PW 11 stated that he was informed about the incident by PW 1. He also referred to the evidence of PW 11 where he deposed about a cordial relationship between the couple. The Learned Advocate submitted that the recovery of the alleged murder weapon did not implicate the appellant as no statement was recorded under Section 27 of the Evidence Act. According to him, in the alternative, at best a charge under Section 304 of the Penal Code is made out. 6. Mr. Saibal Bapuli, the Learned Additional Public Prosecutor, appearing on behalf of the State, strongly supported the conviction and sentence. He submitted that it had come in evidence that the appellant and the victim lived together. PWs 1, 3, 7, 8, 9, 10 and 11 all deposed about the incessant assaults inflicted by the appellant on the victim on the fateful night. He submitted that it had come in evidence that the appellant and the victim lived together. PWs 1, 3, 7, 8, 9, 10 and 11 all deposed about the incessant assaults inflicted by the appellant on the victim on the fateful night. According to him, PW 1 was a partial eye-witness who witnessed the initial assault and on the next day found the deadbody lying on the floor of the room of the appellant. He placed reliance on the evidence of PWs 1, 5 and 11 who claimed that the appellant had made extra-judicial confession before them. He contended that the medical evidence as adduced by PW 16 supported the ocular version in good measure. In addition, the appellant failed to provide any explanation during his examination under Section 313 of the Code. 7. We heard the submissions of the Learned Advocates appearing on behalf of the appellant and the State and carefully went through the evidence and other materials on record to assess the correctness of the impugned judgment and order of conviction and sentence. A disturbed relationship - motive or at least a precursor: 8. According to PWs 4, 7, 8, 9 and 10, the relationship between the couple was a troubled one. While PW 1 deposed that consuming of liquor by the victim led to quarrels between the husband and wife, the neighbours and the locals like PWs 4, 9 and 10, without specifically assigning any reason for the same, deposed that the appellant used to even physically abuse the victim. PWs 9 and 10, both members of a local womens' organisation, stated that the victim used to complain about physical assault by the appellant. PW 11, the Panchayat Pradhan stated that the victim had given a written complaint earlier. Even the appellant's sons PWs 7 and 8 admitted that the appellant used to get drunk and physically abuse the victim. In this context, the discordant notes struck by the appellant's daughter-in-law and a hostile witness being PW 3 and PW 11, respectively by stating that the relation between the two was cordial has to be read more as general statements. Of course, the relationship was strained, but not enough that the two would live separately at all costs. This perturbed relationship could have acted more as the factual backdrop in which the incident occurred. The couple lived together: 9. Of course, the relationship was strained, but not enough that the two would live separately at all costs. This perturbed relationship could have acted more as the factual backdrop in which the incident occurred. The couple lived together: 9. The prosecution case that the appellant and the victim lived together as a couple was not in dispute. In fact, it was the evidence of PW 3, the daughter-in-law of the appellant and the victim, that on that particular night she was staying at a neighbour's house and the appellant asked for the keys of the house at night. It was only in the next morning that she came to know about the incident. In any event, PW 1 was a witness to the initial assaults that the appellant had inflicted on the victim on that fateful night. He deposed that he saw the appellant mercilessly assaulting his wife and when the wife/the victim managed to flee out of the shop room, the appellant chased and caught her. One eye-witness to the assault, in part: 10. Pw 1, a local resident, was the prime witness in this case. After hearing a ruckus, he saw from his window that the appellant was assaulting his wife/victim. The appellant chased and caught the victim after she managed to flee out of the shop. He then dragged her and started beating her mercilessly. He even tore away the wearing apparels of his wife and disrobed her. This is the point till when PW 1 witnessed the incidents. On the next morning PW 1 found the victim lying dead on the floor of the appellant's shop. Therefore, PW 1 can very well be treated a partial eye-witness to the crime committed by the appellant. His evidence to this effect could not be shaken during crossexamination. Extra-judicial confession: 11. On the morning after the date of incident, when confronted with the factum of death of the victim whose deadbody lay in his shop room, the appellant admitted his guilt before several witnesses. The appellant made such extra-judicial confession before PW 1, a local partial eye-witness, PW 5, another covillager and PW 11, the Panchayat Pradhan. Although PW 6, a hostile witness, deposed that the appellant told him that the victim died on consuming liquor, in his cross-examination he admitted that the appellant made an extra-judicial confession regarding his wife's murder. The appellant made such extra-judicial confession before PW 1, a local partial eye-witness, PW 5, another covillager and PW 11, the Panchayat Pradhan. Although PW 6, a hostile witness, deposed that the appellant told him that the victim died on consuming liquor, in his cross-examination he admitted that the appellant made an extra-judicial confession regarding his wife's murder. Although an extra-judicial confession is by itself a weak piece of evidence, but when the same is found to be truthful and consistent and is corroborated by other evidence, then the same may be used against an accused in a criminal trial. Recovery of the offending weapon: 12. The offending weapon being a wooden 'mungro' (wooden bat used for the purpose of washing cloth by way of hammering) was recovered at the instance of the appellant from inside his shop on 15.05.2006 at about 13:45 hours in the presence of witnesses. Although PW 6, a hostile witness, despite being a seizure list witness for the offending weapon, stated the he did not know from where the weapon was recovered, PW 5, another independent seizure list witness for the weapon, supported the seizure. Although the recovery of the offending weapon in this case might not satisfy the rigors of Section 27 of the Evidence Act, the same is nevertheless be admissible in evidence under Section 8 of the Evidence Act. Medical evidence: 13. The medical evidence as adduced by the post-mortem doctor, PW 16 coupled with the post-mortem report, clearly supported the prosecution case. There were several injuries found on the whole body of the victim. The doctor gave an opinion that death was due to the effects of the injuries, which were ante-mortem and homicidal in nature. This is quite commensurate with the eye-witness's account as presented by PW 1 that the appellant had mercilessly beaten up the victim by chasing her from here to there. The seizure of the offending weapon i.e., a wooden 'mungro' (wooden bat used for the purpose of washing cloth by way of hammering) is also compatible with the doctor's evidence that the injuries might have been caused by a blunt weapon like a wooden scalpel or a weight. 14. The seizure of the offending weapon i.e., a wooden 'mungro' (wooden bat used for the purpose of washing cloth by way of hammering) is also compatible with the doctor's evidence that the injuries might have been caused by a blunt weapon like a wooden scalpel or a weight. 14. From a careful perusal of the evidence and other materials on record it appears that the strained relationship between the two, the preceding incidents of physical abuse by the appellant on the victim, the evidence adduced by the independent eye-witness PW 1 about the merciless assaults inflicted by the appellant upon the victim on the fateful night, the finding of the deadbody in the appellant's shop room in the next morning, the consistent extra-judicial confessions made by the appellant before independent witnesses like PWs 1, 4 and 11, the seizure of the offending weapon from the shop room and a corroborative medical evidence, all unerringly point towards the guilt of the accused. 15. As regards the alternative prayer of the Learned Advocate for the appellant that the conviction may be scaled down to one under Section 304 of the Penal Code, one cannot lose sight of the fact that after the appellant started assaulting the victim, once the victim was able to extricate herself from his clutches, but the appellant went out of the way and again dragged her in and continued with the incessant assaults. It has come in evidence that the appellant chased the victim from one place to another and continued to assault her nearly all over her body. Therefore, it can be safely inferred that the appellant had an intention to commit the murder. Moreover, the use of the 'mungro' as the offending weapon and the infliction of a number of injuries on the victim spread over a considerable period of time are of utmost significance. We do not find that the present case is covered by any of the exceptions as envisaged under Section 300 of the Penal Code. 16. In view of the above discussions, we do not find any illegality or impropriety in the impugned judgment and order. Accordingly, the appeal is dismissed and the impugned judgment and order of conviction and sentence is affirmed. 17. 16. In view of the above discussions, we do not find any illegality or impropriety in the impugned judgment and order. Accordingly, the appeal is dismissed and the impugned judgment and order of conviction and sentence is affirmed. 17. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 18. 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. Md. Mumtaz Khan, J. - I agree.