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2019 DIGILAW 4 (CAL)

Indrajit @ Tuna Majhi v. State Of West Bengal

2019-01-02

JAY SENGUPTA, MD.MUMTAZ KHAN

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JUDGMENT : JAY SENGUPTA, J. 1. This appeal is directed against a judgment and order of conviction dated 03.03.2005 and sentence dated 04.03.2005 passed by the Learned Sessions Judge, Purulia in Sessions Trial No. 16/2004: Sessions Case No. 117/2004, thereby convicting the appellant under Sections 302 and 498A of the Penal Code. While the appellant was sentenced to suffer rigorous imprisonment for life and to pay a sum of Rs.5000/-, in default to suffer further imprisonment for six months for committing the offence under Section 302 of the Penal Code, no separate sentence was passed for the offence under Section 498A of the Code. By the same order dated 03.03.2005, the other accused Shibu Majhi, Chhabi Majhi and Methar Majhi were acquitted from all the charges. It may be germane to mention that the trial had been split up vide order dated 26.08.2004 from the proceeding against the accused Hemanta Majhi as he was found to be a juvenile at the date of occurrence. 2. On 03.03.2001 at about 12:45 hours PW 2, the father of the victim/deceased lodged a First Information Report with the Arsha Police Station under Sections 498A, 302 read with Section 34 of the Penal Code against the present appellant and four others. In the said First Information Report, PW 2 alleged that in the preceding year he had given his daughter Palashi Majhi in marriage to the appellant. On the demand of the bridegroom, he gave adequate dowry to him including some cash. But after marriage the accused started torturing the victim. Once the victim was beaten up so severely that she had to be brought back home. Later at the insistence of some relations of the appellant, they were allowed to take the victim back to the matrimonial home. In the night of 02.03.2001 the accused conspired together and killed his daughter by throttling her. On the next morning PW 2 came to know about such murder from a reliable source. On reaching the place of occurrence, he found his daughter lying dead. 3. Investigation commenced. On 03.03.2001 at about 15:35 hours, PW 14, a Sub Inspector of Police, conducted an inquest over the dead body of the 20 years old victim in the house of the appellant in the presence of witnesses PWs 2, 6, 8, 9 and another. On reaching the place of occurrence, he found his daughter lying dead. 3. Investigation commenced. On 03.03.2001 at about 15:35 hours, PW 14, a Sub Inspector of Police, conducted an inquest over the dead body of the 20 years old victim in the house of the appellant in the presence of witnesses PWs 2, 6, 8, 9 and another. PW 14 found that white coloured froth was coming out from the nose of the victim. On the left side of the throat, a slight mark of a scratch and on part of the throat a blackish mark were found. It came out from preliminary investigation that the deceased was killed by throttling. Post-mortem examination was done on 04.03.2001 at 15:00 hours by PW 1. During investigation the accused gave a statement under Section 164 of the Code before PW 17. After the completion of investigation a charge-sheet dated 31.07.2002 was submitted against all the accused. 4. On 19.07.2004 charges were framed against five accused including the present appellant under Section 302 read with Section 34 of the Penal Code and under Section 498A read with Section 34 of the Penal Code. During trial the prosecution examined as many as 17 witnesses to prove its case. The case of the defence was mainly a denial of the prosecution case. 5. From a careful reading of the evidence on record, it appears that PW 1 was the doctor who held the post-mortem examination over the dead body of the victim on 04.03.2001. He found multiple abrasions and swelling on the neck, multiple nail abrasions on the left, front and right side of the neck. On dissection collection of small liquid was found on the left side of the subcutaneous tissue. According to him there was presence of manual violence on the dead body. The abrasions by nail were caused by compression. He opined that the death might have been caused by asphyxia. In the cross-examination, he admitted that without obtaining the viscera report it was difficult for him to give opinion as to the exact cause of death. PW 2 was the de facto complainant of the case and the father of the victim. He deposed that he gave his daughter Palashi, the victim, in marriage to the appellant in 2001. Some dowry was also given. After marriage the victim was subjected to torture including physical assault by the accused. PW 2 was the de facto complainant of the case and the father of the victim. He deposed that he gave his daughter Palashi, the victim, in marriage to the appellant in 2001. Some dowry was also given. After marriage the victim was subjected to torture including physical assault by the accused. After getting an information about the murder of the victim, PW 2 rushed to her matrimonial home and found the dead body of her daughter. He deposed that once due to severe torture, he had to bring his daughter back home. But the accused Shibu Majhi came and requested for sending the victim back and assured that such kind of torture would not be repeated. After about 5 days from the victim’s going back to her matrimonial home, PW 2 received the information about her murder. PW 2 was a post-occurrence witness and a witness to the inquest. PW 3 was the victim’s mother. She deposed that the victim had earlier reported to her about the torture inflicted upon her. They had given dowry at the time of marriage. Yet the accused strangulated her daughter to death. In her cross, she admitted that she was not interrogated by the police. PW 4 was the victim’s uncle. He too deposed that the victim had earlier confided in him about the torture inflicted upon her. He too admitted that he was not examined by the Investigating Officer. PW 5 was the victim’s brother. He also stated about the torture meted out to the victim by the appellant and other in-laws, as reported by the victim herself. He too was not interrogated by the police. PW 6 was the scribe of the First Information Report and a witness to the inquest. He stated that earlier he had tried to convince the appellant not to assault the victim. PW 6 deposed that after the incident he found the room of the appellant under lock and key. He was not interrogated by the police. PW 7 was a co-villager of the victim. He deposed that the victim’s father-in-law indeed came and took the victim back to her matrimonial home. PW 8 was a cousin of the appellant and was a witness to the inquest. He was not interrogated by the police. PW 7 was a co-villager of the victim. He deposed that the victim’s father-in-law indeed came and took the victim back to her matrimonial home. PW 8 was a cousin of the appellant and was a witness to the inquest. In the cross-examination, he stated that on the particular day there was a marriage of another cousin and that the accused Methar Majhi had gone to attend such marriage and came back three days after the death of the victim. PW 9 was another co-villager and a witness to the inquest. He stated that on the day of the incident, he and the accused/appellant had been to the house of one Bhuti Kumar for the purpose of ‘the marriage ceremony’. PWs 10 and 11 did not say much. PW 12 was the priest who had officiated some pre-nuptial ceremony between the appellant and the victim. PW 13 was a co-villager and a post-occurrence witness. He found that the door of the victim’s matrimonial house was open at the relevant time. PWs 14, 15 and 16 were the three Investigating Officers of the case. PW 16 submitted the charge sheet. PW 17 was the Learned Magistrate who recorded the confessional statement of the appellant under Section 164 of the Code. In his examination under Section 313 of the Code, the appellant admitted that his father had brought back the victim after the victim had gone away. He stated that he need not recollect the statement he made before the Magistrate and in fact, became senseless after the physical assault by the police. He raised a plea of alibi that he was not there at the place of occurrence at the relevant time. 6. Mr. Mainak Bakshi, the Learned Advocate appearing on behalf of the appellant, strongly opposed the judgment and order of conviction and sentence imposed upon the appellant. He submitted that the prosecution could not prove its case beyond all reasonable doubts. He submitted that the plea of alibi raised by the appellant was not properly considered by the Learned Trial Judge. The Learned Advocate submitted that the appellant surrendered before the authorities on 04.03.2001 as per the forwarding report. Thereafter he was medically treated on 05.03.2001, after an unexplained delay. His medical examination showed injuries on both hands and the date of injury was given as 04.03.2001. The Learned Advocate submitted that the appellant surrendered before the authorities on 04.03.2001 as per the forwarding report. Thereafter he was medically treated on 05.03.2001, after an unexplained delay. His medical examination showed injuries on both hands and the date of injury was given as 04.03.2001. As per the Learned Advocate, this clearly supported the explanation given by the appellant under Section 313 of the Code that he was brutally assaulted by the police. He submitted that the Learned Magistrate never gave any assurance before taking his statement under Section 164 of the Code that the appellant would not be send back to police custody. On the other hand, despite the appellant stating about injuries on himself in the confessional statement, the Learned Magistrate did not consider it necessary to inquire further into the events. The Learned Advocate further submitted that the FSL report never came. He further submitted that even the post-mortem doctor could not positively opine as to the cause of death. 7. Mrs. Kakali Chatterjee, the Learned Advocate appearing on behalf of the State strongly supported the conviction and sentence imposed upon the appellant. She submitted that there was sufficient evidence to convict the appellant including those of the post-occurrence witnesses, retracted confession of the appellant and the very fact that the dead body of the victim was found in the house of the appellant. She submitted that the retracted confession may very well be relied upon. In this case the retracted confession clearly supported the prosecution case. According to her, necessary cautions were given by the Learned Magistrate before recording the statement. She submitted that the appellant might have inflicted some injuries on him self and tried to even explain things in his own way in his examination under Section 164 of the Code. What is significant is that in his statement under Section 313 of the Code, the appellant did not deny giving a statement under Section 164 of the Code. Furthermore, there was no cross-examination over the absence of statutory caution or any assault by police officers upon the appellant. The appellant could not find any witness in support of his purported alibi. Marriage: 8. Pw2, the father of the victim/deceased, deposed that his daughter was given in marriage to the present appellant about a year before the date of occurrence. PW 3, the victim’s mother corroborated the said fact. The appellant could not find any witness in support of his purported alibi. Marriage: 8. Pw2, the father of the victim/deceased, deposed that his daughter was given in marriage to the present appellant about a year before the date of occurrence. PW 3, the victim’s mother corroborated the said fact. PW 12 deposed as the priest who had officiated the pre-nuptial ceremony from the side of the bride. Torture: 9. Pw1, the father of the victim, deposed that after marriage, the victim was tortured by the accused. She was even physically assaulted by them. This was despite the fact that during marriage sufficient dowries were given to the accused. Once the victim was beaten up so severely that PW 1 had to take her back home. PW 7, an independent co-villager, corroborated the fact that the victim’s father-in-law indeed came and took back the victim girl to her matrimonial home. She did not want to go back. Yet, on the insistence of the accused Shibu Majhi and another, she was sent back. Within five days of the said incident, the victim was found dead in the matrimonial home. The factum of torture upon the victim was corroborated by the victim’s mother PW 3, her uncle PW 4 and her brother PW 5 in their evidence. They clearly stated that the victim had confided in them about the cruelty inflicted upon her by the accused. It is true that PWs 3, 4 and 5 were not examined by the Investigating Officer. But, that does not belittle their credibility and the otherwise unshaken evidence adduced by these witnesses. PW 6, the scribe of the First Information Report and a witness to the inquest and an otherwise independent witness, too stated that he had to convince the appellant once not to assault the victim. These evidence not only bear out the factum of torture meted out to the victim by the accused, but also act as a backdrop to the circumstances and perhaps even as the motive that led to the death of the victim lady. Body found in appellant’s house: 10. The victim was found lying dead in the appellant’s house where the two were staying. The plea of alibi raised by the appellant did not even fully cover the relevant time. Body found in appellant’s house: 10. The victim was found lying dead in the appellant’s house where the two were staying. The plea of alibi raised by the appellant did not even fully cover the relevant time. In view of Section 106 of the Evidence Act, it was for the appellant to properly explain the circumstance leading to the victim’s death. Post-occurrence accounts: 11. Pw2, the father of the victim, was also a post-occurrence witness. Upon a reliable information, he rushed to the matrimonial home of her daughter and found the dead body of the victim lying there. PW 6 too witnessed the aftermath and was a signatory to the inquest report as a witness. PWs 8 and 9 who were respectively a cousin and a co-villager of the appellant were witnesses to the inquest. PW 13, a co-villager, was also a post-occurrence witness. All these clearly show that the victim’s dead body was found in the house of the appellant after the incident. Retracted confession of the appellant: 12. On 07.03.2001, the appellant made a confessional statement under Section 164 of the Code before PW 17, a Learned Magistrate. The required cautions were given. The appellant admitted that on the date of occurrence at about 12 in the night he and his uncle came back from the house of Bhuti Kumar after having dinner. He knocked on the door of the house and called the victim. But the victim became late in opening the door. Then the couple had an altercation between themselves. After that both went to sleep. But, the appellant could not restrain his anger. At about 2 ‘O’clock in the night, the appellant strangulated his wife while she was sleeping. He further stated that after this he locked the room and went away. At about 11 in the night, the appellant came back and saw the door of the room open and only a latch put on. He thereafter opened the latch and tried to commit suicide by inflicting wounds on his own neck and arms with a little knife. As he was not successful in doing so, the appellant went to the police station and surrendered. PW17 proved the recording of such statement and deposed that necessary cautions were given to the accused. He thereafter opened the latch and tried to commit suicide by inflicting wounds on his own neck and arms with a little knife. As he was not successful in doing so, the appellant went to the police station and surrendered. PW17 proved the recording of such statement and deposed that necessary cautions were given to the accused. In fact, although the appellant alleged that he had been beaten up by the police and was forced to give a statement before the Magistrate, he could not dispute the signature he had put to on such statement. The Learned Advocate for the appellant contended that despite giving other cautions, the Learned Magistrate did not tell the appellant that he would not be remanded to police custody if he did not make a statement. This additional note of caution will not be of much relevance in the present case where the appellant admitted his signature on the statement under Section 164 of the Code, there were in fact injuries on his hand as per the injury report and as mentioned in the statement under Section 164 of the Code and most importantly, because no case was made out by the defence that anyone would be unduly interested in falsely framing the appellant in this case. In any event, there was no cross-examination done on the absence of statutory caution or on any assault by the police. At the same time it is true that it will be prudent to seek some kind of corroboration when the prosecution is based primarily on a retracted confession of the appellant. Such corroboration may be found in the admission that the victim and the appellant used to stay together in the room at the relevant time and in evidence adduced by the post-occurrence witnesses that the dead body of the victim was found lying in the said room having marks of injury on it and in the non-explanation by the appellant as to what might have led to the homicidal death of the victim. Medical Evidence: 13. The medical evidence as adduced by PW 1, the post-mortem doctor clearly shows injuries on the dead body, especially on the neck and presence of manual violence on the dead body. That the autopsy surgeon opined that the death might have been caused by asphyxia does not necessarily rule out strangulation. Medical Evidence: 13. The medical evidence as adduced by PW 1, the post-mortem doctor clearly shows injuries on the dead body, especially on the neck and presence of manual violence on the dead body. That the autopsy surgeon opined that the death might have been caused by asphyxia does not necessarily rule out strangulation. The scepticism, if any, was due to the fact that a small liquid was also found on the left side of the subcutaneous tissue. In our view, the medical evidence substantially supports the prosecution case. Alibi: 14. The plea of alibi raised by the appellant that he was not present at the time of murder of the victim is neither supported by any defence witness nor is elaborated to any extent by the appellant. It is true that PW 9, a co-villager, deposed that he and the appellant had been to the house of one Bhuti Kumar for attending a marriage ceremony. But even if such fact is held to be true, there is no evidence that the appellant was not at all there in the house when the murder of the victim took place. He might have just come back, as was clearly indicated in the appellant’s statement under Section 164 of the Code. 15. From the above discussions on the evidence and other materials on record as available in this case, it appears that although the torture inflicted by the appellant on the victim was not necessarily related to any dowry demand, the same was indeed of very serious nature. It not only involved mental but also physical abuse. In fact, on one occasion the victim’s father had to bring her back to his house. When the appellant’s relations went back to bring the victim, the victim was reluctant to go back. Even an independent co-villager had to request the appellant not to inflict cruelty any more upon the victim. Therefore, it is abundantly clear that the prosecution has been able to prove its case under Section 498A of the Penal Code beyond all reasonable doubts. 16. Even an independent co-villager had to request the appellant not to inflict cruelty any more upon the victim. Therefore, it is abundantly clear that the prosecution has been able to prove its case under Section 498A of the Penal Code beyond all reasonable doubts. 16. In view of the evidence available as regards the finding of the dead body of the victim in the appellant’s house where they stayed together, the appellant’s failure to explain away the circumstances appearing against him and as required under Section 106 of the Evidence Act, his raising a weak alibi that could not be proved and did not even cover the entire span of the relevant time, the post-occurrence accounts given by credible witnesses, a confession of the appellant under Section 164 of the Code, though retracted and the medical evidence supporting the prosecution case, we find that the prosecution was also able to prove its case under Section 302 of the Penal Code beyond all reasonable doubts. 17. We do not find any illegality or impropriety in the impugned judgment and order of conviction and sentence passed against the appellant. Hence, the appeal is dismissed and the conviction and sentence are affirmed. 18. 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. 19. Urgent photo state 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.