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2019 DIGILAW 521 (CAL)

Rita Das v. State of West Bengal

2019-04-24

JOYMALYA BAGCHI, MANOJIT MANDAL

body2019
JUDGMENT : Manojit Mandal J. 1. This appeal is directed against the Judgment and order of conviction dated 12.07.2011 and 15.07.2011 passed by the learned Additional Sessions Judge, 2nd Court, Malda, in Sessions Trial No. 08 of 2011 arising out of Sessions Case No. 17 of 2011 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him thereunder to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/-(Rupees One Thousand) and in default to undergo simple imprisonment for six months. 2. Prosecution Case, in short, is that on 20.02.2006 at about 11:45 hours PW 1, Sri Chandan Das, lodged a written complaint before the Inspector-in-Charge, English Bazar Police Station, alleging, inter alia, that his son Manik Das (deceased) had been staying as tenant in the house of PW 4, Dulal Das, along with his wife (appellant) and two sons. On 20.02.2006 at about 3:00 p.m., he was informed that his son has been murdered and dead body of his son was lying at Malda Sadar Hospital. On hearing this, he along with his family members and neighbours at first went to Malda Sadar Hospital and saw his deceased son lying dead in the male surgery ward. They noticed bleeding injuries over his stomach and hand. Thereafter, they went to the house of PW 4, Dulal Das, and were informed by the neighbours that yesterday at about 11:00 p.m. deceased started shouting in his house. Neighbours rushed to his house and saw that door was locked and there were groaning sound inside the room and then the neighbours broke the lock and after entering in the room they saw that deceased was groaning. At that time appellant i.e. the wife of deceased, was not present. Deceased and his two sons were inside the house. The local people took his son to Malda Sadar Hospital where he succumbed to such injuries. He was informed by the neighbours that the appellant had murdered his son, Manik Das. On the basis of the said written complaint, an FIR was registered at the said Police Station against the appellant under Section 302 of the Indian Penal Code. 3. After usual investigation police submitted the charge sheet against the appellant under Section 302 of the IPC. 4. In course of time, the case was committed to the Court of Sessions. On the basis of the said written complaint, an FIR was registered at the said Police Station against the appellant under Section 302 of the Indian Penal Code. 3. After usual investigation police submitted the charge sheet against the appellant under Section 302 of the IPC. 4. In course of time, the case was committed to the Court of Sessions. On transfer the case was tried in the Court of Learned Additional Sessions Judge, 2nd Court, Malda. 5. Upon perusal of the materials on record, the learned Trial Court framed charge under Section 302 of the Indian Penal Code against the appellant to which she pleaded not guilty. In course of trial, the prosecution examined in all fourteen (14) prosecution witnesses and marked as many as eleven (11) documents as Exhibits and four (4) materials object as Mat. Exhibits I to IV. Defence of the appellant was that the prosecution case is totally false and the appellant did not adduce any evidence in her defence. On conclusion of the trial, appellant was convicted and sentenced as already stated. 6. PW 1, Sri Chandan Das, is the father of the deceased and he was informant in this case. He gave his evidence in the Trial Court. The version disclosed in his evidence is similar to the statement he made in the FIR. I have gone through his evidence including the statement. This witness made in course of his cross-examination. After considering the same, I am of the view that nothing substantial could elicit from his cross examination so as to discard his evidence. I find that his evidence has remained unshaken despite such cross-examination. PW 2, Santoshi Sarkar, used to stay in her father's house with her children. She has deposed that deceased was a tenant in her father's house and deceased used to live along with his wife and two children. She has further stated in her evidence that about 5-6 years ago at night having heard the groaning of deceased and also the cries of his two children in his rented house, she along with others came out of their house. As soon as they came out, they saw the appellant to flee away having jumped over the boundary wall. The door of the house of Manik Das was under lock and key from the outside. As soon as they came out, they saw the appellant to flee away having jumped over the boundary wall. The door of the house of Manik Das was under lock and key from the outside. The neighbouring people broke the lock and they entered into the house of the deceased and the deceased was taken to the hospital. She has further stated that she has heard that on the following day of the occurrence police came with the appellant and the appellant kept the knife under the 'chowki' in the house of the deceased and appellant brought out the said knife and gave it to the police. PW 3, Kartick Sarkar is the husband of PW 2. He has deposed that appellant was known to him. Husband of the appellant Manik Das was murdered about 5-6 years ago at night in his rented house. On the very date of occurrence he along with his wife and son were present at his father-in-law's house. He entered into his father-in-law's house at about 9:00 p.m.. At that time he heard that a hot exchange of words was going on between the deceased and the appellant. He went inside his house. All of a sudden he woke up having heard the cries of the children of the deceased. PW 2 also woke up and he told PW 2 to see who were crying and why. PW 2 came out of her house having switched on the light. That very moment she saw the appellant fleeing away. He came out and he heard the groaning sound from the house of deceased. The door of the room of deceased was locked from outside. Para people broke the lock and entered into the room. The para people rescued deceased and took him to the hospital. Of course, this witness could not say about the seizure of the offending weapon by the police. This witness then was declared hostile by the prosecution and was accordingly cross-examined by the public prosecutor with leave of the Court. Be that as it may, it appears to me that this witness was also trying to help the appellant for this reason he was rightly declared hostile by the prosecution. But substantial part of his evidence supports the prosecution case to a great extent. PW 4 is Dulal Das who is landlord of the deceased. Be that as it may, it appears to me that this witness was also trying to help the appellant for this reason he was rightly declared hostile by the prosecution. But substantial part of his evidence supports the prosecution case to a great extent. PW 4 is Dulal Das who is landlord of the deceased. He has duly corroborated the evidence of PW 2 and PW 3 by saying that deceased used to reside in his house as tenant with appellant and two children. About 5 years ago deceased was murdered in his rented room. About 5 days before the occurrence, he went to Islampur to attend a marriage ceremony with his son and wife, having kept his daughter (PW 2) and her husband (PW 3) in his house. On the next day of the occurrence, he came back to his house at about 4 p.m.. Having come back to his house, he heard from the PW 2 and PW 3 about the incident. PW 5 is Khitish Das who has deposed that having heard a hue and cry he woke up from his sleep at night and that hue and cry was coming from the house of the deceased and he went there. The children of Manik Das were crying a loud from inside the house of the deceased. The door of the house of the deceased was locked from outside. They broke the lock and opened the door and entered the room of the deceased. Deceased was groaning and was taken out of his house and subsequently, deceased was taken to the hospital. The appellant was not present at that time. 7. The evidence of PW 6 including his cross-examination reveals that on the date of occurrence at about 10:30/10:45p.m. while he reached near the house of the deceased he noticed a gathering there. Some people told that a groaning sound was heard from the house of the deceased. Deceased was recovered and taken to hospital. Subsequently, he came to know that deceased died in the hospital. PW 7, Sibkumar Ghosh did not support the prosecution. As such this witness was declared hostile by the prosecution. The evidence of PW 8 discloses that there is tenant in the house of Dulal Das (PW 4) and the said tenant is dead now. 8. Subsequently, he came to know that deceased died in the hospital. PW 7, Sibkumar Ghosh did not support the prosecution. As such this witness was declared hostile by the prosecution. The evidence of PW 8 discloses that there is tenant in the house of Dulal Das (PW 4) and the said tenant is dead now. 8. The evidence of PW 9 including his cross examination reveals that about 5 years ago having heard hue and cry, he came to learn that a person was murdered at his house situated in front of his house. PW 10 is Farid Ali who scribed the written complaint. PW 11, Ambuj Kumar Jha, is a Home Guard of English Bazar Police Station who carried the dead body of the deceased to the hospital for post mortem examination under proper challan as per direction of the I.O. PW 12 is doctor, Debnath Sarkar who conducted the post mortem examination on the dead body of the deceased. Following injuries were detected by him on the person of the dead body:- Rigor mortis - present Body was pale Following external injuries were found: 1. Sharp cut wound with haemorrhage and smooth regular margin measuring 13/4"X " abdominal cavity deep over right side of abdomen 3 inch above ambelicus and lateral to mid line, with ementum protruding out. 2. Sharp cut wound with haemorrhage and smooth regular margin measuring 1"X1/2"X1/6th. Inch over right fore arm, near middle part. 3. No other external injury. On dissection I found: 1. All organs were pale. Peritoneal cavity contains massive amount of blood. 2. Sharp cut wound over stomach and liver, stomach contents - semi digested food. Wound over stomach - measuring 1"x1/6th inch into cavity deep and over liver - 1"x1/6th inch into ". Ultimately PW 12 opined that death was due to the effect of ante mortem injuries as stated in the post mortem examination report, homicidal in nature and all injuries were ante mortem caused by hard sharp cutting and pointed object, sufficient to cause death in ordinary course of nature. The doctor has proved his report as Exhibit 6. From the marks of various injuries noted by PW 12 in course of post mortem examination over the dead body of the deceased, I have no hesitation, in my mind to observe that the deceased died a violent death and it rules out the case of natural death. The doctor has proved his report as Exhibit 6. From the marks of various injuries noted by PW 12 in course of post mortem examination over the dead body of the deceased, I have no hesitation, in my mind to observe that the deceased died a violent death and it rules out the case of natural death. I have observed the statement made by PW 12 in course of cross-examination and the same reveals that no suggestion was put forward to him on behalf of the appellant that this evidence is false or that his post mortem examination was perfunctory. 9. Next witness is PW 13, Krishnendu Mukherjee who is the first I.O. of this case. During investigation he collected FSL report (Exhibit 7). PW 13 is Santosh Kumar Mandal who investigated the case. During investigation he conducted inquest over the dead body of the deceased. He arrested the appellant on 20.02.2006 and recorded her statement (Exhibit 9). On the basis of the statement of the appellant he recovered offending weapon from under her bed and seized the same in the presence of the witnesses and the appellant under a seizure list (Exhibit 4). 10. Learned Advocate for the appellant urged that the pivotal witnesses of the prosecution case are PW 2 and PW 3. PW 2 is the daughter of PW 4 who was the landlord of the rented house where the murder of the deceased took place. PW 3 is the husband of the PW 2. Their evidence does not inspire confidence at all. The evidence of PW 2 and PW 3 can never be termed as reliable witnesses. I fail to accept the submission of the learned Advocate for the appellant. PW 2 provides corroboration to the evidence of PW 3. She has been cross-examined but she has stood firm in the cross-examination. She is also a natural witness. Admittedly, the deceased and the PW 2 used to reside in the same house. She was, therefore, expected to be present in the house. She has truthfully stated the events. Her claim that she saw the appellant to flee away having jumped over the boundary wall cannot be doubted. She was rightly believed by the learned Lower Court. PW 3 is the husband of PW 2. She was, therefore, expected to be present in the house. She has truthfully stated the events. Her claim that she saw the appellant to flee away having jumped over the boundary wall cannot be doubted. She was rightly believed by the learned Lower Court. PW 3 is the husband of PW 2. He has not seen the actual incident but he corroborates the PW 2 to the extent that while he entered the house of his father-in-law at about 9:00 p.m., he heard that hot exchange of words was going on between the deceased and the appellant. He went inside his house. After dinner he went to bed and slept. All of a sudden he woke up having heard the cries of the children of the appellant. His wife (PW 2) also woke up. He told PW 2 to see who were crying and why. His wife came out of room and saw the appellant fleeing away. The door of the room of the deceased was locked from outside and para people broke the lock and entered into his room. The PW 2 and PW 3 have stated that on the very date of occurrence, they were present at PW 4's house. The fact that they were present on the very date of occurrence was not denied by way of cross-examination. There is also no evidence that PW 2 and PW 3 had any grudge or inimical attitude towards the appellant. Therefore, the presence of PW 2 and PW 3 at the house of PW 4 is highly probable, believable and acceptable. These two witnesses are disinterested witnesses and I see no cogent ground whatsoever as to why their evidence shall not be accepted. So, the submission as made by the learned Advocate for the appellant cannot be accepted. 11. It is further submitted by the learned Lawyer for the appellant that no reliability can be placed upon the recovery of the offending weapon because the neighbouring people entered into the house of the deceased having broken the lock of the door. Therefore, recovery of offending weapon is not a reliable fact. The evidence of PW 14 including his cross- examination reveals that he seized the offending weapon on the basis of the statement made by the appellant (Exhibit 9) and the said offending weapon was produced before him by the appellant. Therefore, recovery of offending weapon is not a reliable fact. The evidence of PW 14 including his cross- examination reveals that he seized the offending weapon on the basis of the statement made by the appellant (Exhibit 9) and the said offending weapon was produced before him by the appellant. Therefore, on consideration of the evidence of PW 14, I hold that the seizure of the offending weapon is proved by the prosecution through the evidence of PW 14. 12. Learned Advocate for the appellant further urged that the nomenclature of the offending weapon differs greatly from statement to statement. In the inquest report the said weapon is described as 'vojali' whereas in the seizure list it is described as 'dagger'. Therefore, it cannot be said that the prosecution has been able to prove the nature of weapon and as such the benefit of doubt must be given to the appellant. I fail to accept the said contention of the learned Lawyer for the appellant as because observation of the witnesses in respect of a particular matter or thing may not be same. There may be some variation in the evidence of the prosecution witnesses with regard to the nature of the offending weapon. These mere variation or discrepancy may be ignored. This apart, I think that, the intelligence of all witnesses is not same. On seeing the offending weapon, one can say it is a knife and another person may describe it as a dagger. Moreover, the Concise Oxford English Dictionary has defined dagger as a short knife with a pointed and edged blade, used as a weapon. So, it appears that dagger is a form of knife and as such, the submission is devoid of any merit since dagger and knife means same weapon. 13. Learned Advocate appearing for the appellant further urged that the prosecution case is worn out with suspicion; the FIR itself is fictitious one and also suspicious as because the FIR maker has deposed during cross-examination that he does not know the name of the person who wrote the FIR and that he signed the FIR on a blank paper. So, the prosecution case should be viewed with suspicion. On reading the evidence of PW 1, with reference to the contents of the ejahar it appears that PW 1 testified the facts as stated in the ejahar. So, the prosecution case should be viewed with suspicion. On reading the evidence of PW 1, with reference to the contents of the ejahar it appears that PW 1 testified the facts as stated in the ejahar. So, that there remains no doubt as to the contents of the ejahar. There is no convincing evidence that save and except the instant ejahar (Exhibit 1) any other ejahar was submitted. As the ejahar was submitted immediately after the occurrence the same is real FIR in terms of the provisions of law. 14. Now turning to the question of evidentiary value of the FIR it appears that in view of the decision of the Hon'ble Apex Court in the case of Apren Joseph vs. State of Kerala, (1973) AIR SC 1 it was settled that the principal object of FIR is to set the Criminal Law in motion from the point of view of the information and to obtain information about an alleged crime. It is not a substantive piece of evidence and it can be used only for the purpose of corroboration under Section 157 or for contradiction under Section 145 of the Evidence Act against maker only. 15. It was also held in another decision of Asharam and another vs. State of M.P., (2007) 11 SCC 164 that FIR is not a substantial evidence and cannot be used to contradict the testimony of other witnesses except the maker. Therefore, examining the question in the light of the aforesaid principles of law it can be held that the submission as made by the learned Advocate for the appellant cannot be accepted. The purpose of FIR, in the instant case, has been duly satisfied in accordance with the law. 16. PW 7 did not support the prosecution case and he has been declared hostile by the prosecution. The fact that he has deposed falsely has been proved by the statement of the I.O. (PW14). 17. From the evidence of PW 1, PW 2, PW 3, and PW 6 it appears that the appellant used to reside along with the deceased in the house of PW 4 as a tenant. From the examination of the accused under Section 313 of the Cr.P.C it is found that the appellant has clearly admitted that after dinner on the date of incident she went to sleep. From the examination of the accused under Section 313 of the Cr.P.C it is found that the appellant has clearly admitted that after dinner on the date of incident she went to sleep. But the conduct of the appellant after the occurrence goes to show that it was she and none else who was responsible for the unnatural death of the deceased. The appellant would have raised hue and cry instead of fleeing away from the house. The appellant, however, did nothing of the kind. 18. I am aware that when a case rests upon circumstantial evidence such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and (3) the circumstances, taken cumulatively, who form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Circumstantial evidence should not only consistent with the guilt of the accused but should also be inconsistent with his innocence. Such circumstances must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. 19. In the instant case, all the aforesaid tests have been fully satisfied beyond all reasonable doubt. In that night appellant slept with the deceased in the room in question after dinner. It has been further proved beyond all reasonable doubt that none else slept in that room in that night. In these circumstances how the dead body of the deceased came to bear so many marks of violence on his body. Who inflicted them unless it was appellant herself who inflicted them? It is not the case of the appellant that any other intruder entered the room and inflicted these injuries. 20. These facts and circumstances have been proved beyond all reasonable doubt. Taken together, these facts and circumstances form so complete a chain that there is no escape from the conclusion that within all human probability the crime was committed by the appellant herself and none else. They are incapable of explanation of any other hypothesis than the guilt of the appellant. 21. In view of the aforesaid, I find that in this case prosecution is based upon some mute circumstances. They are incapable of explanation of any other hypothesis than the guilt of the appellant. 21. In view of the aforesaid, I find that in this case prosecution is based upon some mute circumstances. A witness may lie but these mute circumstances cannot. These are so reliable and trustworthy and their message is so loud and eloquent that I am left with not even the slightest doubt in my mind to unhesitatingly hold that these circumstances are entirely incompatible with the innocence of the appellant. Conviction and sentence of the appellant must be upheld. 22. In the result, I find nothing to interfere with the impugned judgment and accordingly, the appeals are dismissed. 23. The bail bond of the appellant is cancelled and she is directed to surrender within two weeks before the learned Trial Court and serve out the sentence in accordance with law. In the event, appellant fails to surrender before the learned Trial Court, learned Trial Court shall resort to appropriate processes to ensure her attendance and execute the sentence against her in accordance with law. 24. The Lower Court Record along with copy of this judgment be sent to the learned Trial Court below at once for information and taking necessary action. 25. Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking. I agree- Joymalya Bagchi, J.