Mithun Das vs State Of West Bengal
2022 Latest Caselaw 1715 Cal

             IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Bivas Pattanayak


                            C.R.A. 2 of 2011

                                Mithun Das
                                  -Vs-
                           State of West Bengal


For the Appellant      :     Mr. Partha Sarathi Bhattacharyya, Adv.
                             Mr. Degangan Bhattacharjee, Adv.
                             Ms. Swarnali Saha, Adv.

For the State          :     Mr. Saryati Datta, Adv.


Heard on               :     31.03.2022, 01.04.2022


Judgment on            :     01.04.2022


Joymalya Bagchi, J. :-

      Appeal is directed against the judgment and order dated

22.12.2009

and 23.12.2009 passed by the learned Additional Sessions

Judge, Fast Track Court-III, Jangipur, Murshidabad, in Sessions Trial

No. 6/July/08 arising out of Sessions Sl. No. 80/08/(43/08) convicting

the appellant for commission of offence punishable under Section 302

of the Indian Penal Code and sentencing him to suffer imprisonment for

life and to pay fine of Rs. 10,000/-, in default, to suffer Rigorous

imprisonment for one year more.

Appellant is a co-villager of the deceased Jairam Das. It is alleged

Jairam had interfered in a marriage proposal of the appellant. As a

result, the proposal did not materialise. Being enraged, on 10.09.2007

the appellant called Jairam from his residence and struck him with a

hasua in a vacant spot stacked with sand near a husking mill. Mother

and brother of the deceased, Jairam and co-villagers witnessed the

incident and rushed to the spot. Father of the deceased, Jitendranath

Das rushed to the spot and found him lying with bleeding injury.

Deceased died at the spot. Jitendranath Das, father of the deceased,

(P.W. 1) lodged written complaint at the police station which was

scribed by P.W. 25 resulting in registration of Samsherganj Police

Station Case No. 143 of 2007 dated 10.09.2007 under Section 302 of

the Indian Penal Code. Appellant surrendered before the learned

Magistrate and in the course of police custody the hasua was recovered.

Charge-sheet was filed and charge was framed under Section 302 of the

Indian Penal Code. In the course of trial, prosecution examined twenty

five witnesses and exhibited a number of documents. Defence of the

appellant was one of innocence and false implication. In conclusion of

trial, trial Judge by the impugned judgment and order dated

22.12.2009 and 23.12.2009 convicted and sentenced the appellant, as

aforesaid.

Mr. Bhattacharyya, learned Counsel appearing for the appellant

submits it is doubtful whether the eye-witnesses had actually seen the

incident. P.W. 2 stated to the investigating officer she was binding biris

in front of the house of Madhu Das and on seeing children running she

went to the spot. Though P.W. 4 claimed she had seen the incident, she

did not go to the spot. She stated hearing hue and cry mother of Jairam

(P.W. 15) came to the spot, thereby, improbabilising the latter's claim

that she had seen the incident. Another eye-witness (P.W. 7), in cross-

examination, stated hearing news, she had come to the spot. Hence, she

could not be an eye-witness. P.W. 13, brother of the deceased, also

stated hearing cries of her mother, he came to the spot. Thus he also is

not an eye-witness. P.Ws. 10, 11 and 12 are chance witnesses and little

credence ought to be given to their versions. Recovery of the hasua on

showing of the appellant has also not been proved. No statement of the

appellant under Section 161 Cr.P.C. was recorded and P.W. 5 has not

supported the prosecution case that the appellant brought out the

hasua from the pond. Hence, prosecution case is riddled with

inconsistencies and contradictions and ought not to be believed.

Mr. Datta, learned Counsel appearing for the State submits the

incident occurred in broad daylight in an open area in the village. Most

of the villagers saw the incident from their residences or while they were

crossing the place of occurrence. Thereafter, they rushed to the spot. All

the witnesses have explained the circumstances in which they saw the

incident. None of the witnesses had enmity against the appellant and

their evidence clearly proves his guilt. Ocular version of the witnesses

receives corroboration from the post mortem doctor (P.W. 22). Hasua

was also recovered on the showing of the appellant in presence of

independent witnesses. Hence, the prosecution case is proved beyond

doubt.

On an analysis of the evidence on record, it appears that P.Ws.

2, 4, 7, 10, 11, 12, 13 and 15 are eye-witnesses. P.Ws. 2 and 4 were

binding biri when they saw the incident while P.W. 7 was cutting leaves

in front of her house. P.W. 4 as well P.W. 7 deposed the place of

occurrence is visible from their residences. They were in front of their

residences when the incident occurred. P.W. 2 stated that she had seen

the incident of assault on the deceased. However, during cross-

examination, she was confronted with her previous statement to police

wherein she stated she was biding bidi in the house of Madhu Das and

upon seeing children running, she came to the place of occurrence.

Madhu Das has not been examined and nothing is placed on record to

show whether the place of occurrence was visible from the house of

Madhu Das. From the tenor of her previous statement to police that she

came to the spot after seeing the local children running, it is doubtful

whether she had actually seen the incident.

However, P.W. 4 stated she saw the incident while she was

binding bidi in front of her house. She stated the place of occurrence

was visible from her house. In cross-examination, she remained firm

with regard to the fact that she had seen the incident.

Mr. Bhattacharya submits P.W. 4 is an untruthful one as she

did not go to the place of occurrence. I am unwilling to disbelieve the

witness on such score. P.W. 4 is a lady who was binding bidi in front of

her house and saw the ghastly assault. She is not related to the

deceased. Hence, out of trepidation she may not have gone to the spot.

Such conduct on her part does not improbabilise her claim of

witnessing the incident.

P.W. 7 is another co-villager. She was cutting leaves in front of

her house when the incident occurred. She saw the incident and rushed

to the spot. She claimed P.W. 4 had also seen the incident. Culling a

single line from her cross-examination that she had rushed to the spot

upon hearing hue and cry, Mr. Bhattacharya argues she is a post

occurrence witness. Evidence of a witness has to be read as a whole. If

the aforesaid line is read in the context of the entire deposition of P.W. 7

it would appear that P.W. 7 had seen the occurrence while she was

cutting leaves in front of her house. Immediately thereafter a hue and

cry was raised and she rushed to the place of occurrence. Hence I have

no reason to disbelieve that P.W. 7 is an eye-witness to the incident.

P.Ws. 13 and 15 are the brother and mother respectively of the

deceased. P.W. 15 stated she saw the incident while she was on the roof

of her house and had rushed to the place of occurrence. She embraced

her son and her clothes were stained with blood. She cried out for help

and others came to the spot. Her deposition including her post

occurrence conduct has a ring of truth. Minor omissions in her previous

statement to police do not improbabilise her claim that she saw the

incident from the roof of her house.

Referring to the cross-examination of P.W. 4 who stated P.W. 15

came to the spot seeing hue and cry, it is contended she is a post

occurrence witness. I am unwilling to accept such interpretation. P.W.

15 had seen the incident of assault from the roof top. This could not

have been noticed by P.W. 4 who saw her only when she rushed to the

spot after witnessing the incident. When evidence of the aforesaid

witnesses are viewed from such perspective, P.W. 4 does not

improbabilise the version of P.W. 15 as an eye-witness.

P.W. 13 claimed to have seen the incident. However, in cross-

examination, he stated hearing hue and cry of his mother, he came to

the spot. In view of the aforesaid contradiction, it may be stated that

P.W. 13 had subsequently arrived at the spot and may not be

considered as an eye-witness.

P.Ws. 10, 11 and 12 also witnessed the incident. P.W. 10 is a co-

villager. He saw the incident of assault by the appellant on Jairam. His

presence at the place of occurrence is corroborated by the fact that he is

a signatory to the seizure list prepared by the police relating to seizure

of blood stained earth from the place of occurrence. P.W. 11 and 12 also

explained the manner in which they saw the incident. P.W. 11 is a shop

owner in the village. His shop room opens from 7 a.m to 10/11 am.

Around 11 a.m he was coming down the road beside the house of the

deceased and saw the incident. P.W. 12 stated he had gone to

Raghunathganj police station and was returning to the village when he

saw the incident. These witnesses, therefore, have explained the

circumstances how they were present at the place of occurrence when

the incident occurred. They remained unshaken in cross-examination.

They do not have any enmity with the appellant. In view of the aforesaid

analysis, I am of the view, though there may be some doubt whether

P.Ws. 2 and 13 are eye-witnesses, P.W. 4, 7, 10, 11, 12 and 15

appeared to be eye-witnesses and I find no reason to discard their

consistent version implicating the appellant in Court.

F.I.R. was promptly lodged by P.W. 1. Although he is not an eye

witness, he stated on the fateful day deceased had been called from the

residence by the appellant. He saw the appellant flee away from the

spot. He saw his son lying with bleeding injuries and became senseless.

Thus, P.W. 1 has corroborated the circumstances in which the incident

occurred and proved the F.I.R. had been promptly lodged by him.

Ocular version of the aforesaid eye witness finds support from

the post mortem doctor who found the following injuries on the body of

the deceased.

"1. A cut injury on the left side of the neck about 6" in length extending from root of the neck to the mandible about 4" depth

cutting the left side carotid sheath and vertebra and spinal cord.

2. A cut injury over the left scapula about 4" in length and 2" width at the centre and about 1" depth.

3. A cut injury near the left mandible about 3" in length and 1" depth cutting the bone of mandible."

He opined death is due to hemorrhage and shock due to afore-

mentioned injuries and ante mortem in nature and caused by medium

to heavy weight sharp cutting weapon. During deposition he also opined

the injuries could be caused by the seized hasua.

With regard to the seizure of hasua by investigating officer (P.W.

24) on the showing of the appellant, I have some doubt. Though

investigating officer (P.W. 24) stated on the showing of the appellant

hasua was recovered, no statement of the appellant recorded by P.W. 24

leading to the recovery has been proved. Moreover, oral evidence with

regard to recovery of the seized weapon on the showing of the appellant

is also shaky. Though, P.W. 8, an independent witness to the seizure

stated appellant brought out the hasua from the pond, the other

independent witness, P.W. 5 is silent on such score. Hence, I am

constrained to hold whether the appellant had brought out the hasua

from the pond or not has not been proved beyond doubt.

Be that as it may, the evidence of the eye-witnesses, namely,

P.Ws. 4, 7, 10, 11, 12 and 15 inspire confidence. They clearly prove the

assault upon the victim by the appellant with a hasua. All the witnesses

also stated that the appellant had run away from the spot with the

hasua. Medical evidence corroborates the ocular version of the

witnesses.

Motive to commit the crime has also been proved from the

evidence of brother of the deceased P.W. 13 as well as P.W. 17, father of

the girl whose marriage negotiation was going on with the appellant.

Appellant suspected deceased had intervened in the matter and

accordingly the marriage proposal could not materialize. Thus, he

committed the murder.

In the light of the aforesaid discussion, I am of the opinion

conviction and sentence of the appellant is liable to be upheld.

Appeal is accordingly dismissed.

Period of detention suffered by appellant during investigation,

enquiry or trial shall be set off under Section 428 of the Code of

Criminal Procedure.

Copy of the judgment along with LCR be sent down to the trial

court at once for necessary compliance.

The incident occurred due to a wrong impression in the mind of

the appellant that the deceased had interfered with his marriage

proposal. Out of grudge, he murdered the deceased. He has roots in

society and does not have criminal antecedents.

In the event the appellant upon completion of 14 years of actual

imprisonment, makes an application for remission of sentence before

the appropriate authority in terms of section 433A Cr.P.C, the said

authority shall consider the application in the light of the aforesaid

circumstances and other relevant factors including his conduct in the

correctional home.

Urgent Photostat Certified copy of this order, if applied for, be

supplied expeditiously after complying with all necessary legal

formalities.

        I agree



(Bivas Pattanayak, J.)                             (Joymalya Bagchi, J.)




tkm/sdas/PA (Sohel)