Calcutta High Court (Appellete Side)
Kayesh Ali vs The State Of West Bengal on 26 April, 2022
Item No. 3
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. 54 of 2008
Kayesh Ali
-Vs-
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharyya, Adv.
Mrs. Sukla Das Chandra, Adv.
Ms. Swarnali Saha, Adv.
For the NCB : Mr. Partha Pratim Das, Adv.
Mr. Pratick Bose, Adv.
Heard on : 26.04.2022
Judgment on : 26.04.2022
Joymalya Bagchi, J. :-
Appellant has assailed judgment and order dated 19.12.2007
and 24.12.2007 passed by the learned Additional Sessions Judge, First
Court, Malda in Sessions Trial No. 50 of 2005 arising out of Sessions
Case No. 105 of 1997 convicting the appellant for commission of offence
punishable under Section 302 of the Indian Penal Code and sentencing
him to suffer rigorous imprisonment for life and to pay a fine of Rs.
2
2,000/-, in default, to suffer rigorous imprisonment for six months
more.
Prosecution case as alleged against the appellant is to the effect
that on 28.03.1996 when the victim viz., Masuda Khatun, a student of
Class IX of Jadupur High School was returning from the school around
6.00 p.m. after completing her examination, appellant attacked her with
a 'gupti' in front of the house of Mojammel Hoque Choudhuri. Due to
such attack, the victim fell on the spot and died. Hearing her cries, her
father, Mansoor Ali Chowdhury (P.W.1) came to the spot and saw the
incident. Appellant also attacked Mansoor Ali Chowdhury. Appellant
was detained at the spot by Jobed Ali Chowdhury (P.W.11). Written
complaint was lodged by Mansoor Ali Chowdhury resulting in
registration of Chanchal Police Station Case No. 24 of 1996 dated
28.03.1996
under Section 302 of the Indian Penal Code. In course of
investigation, police seized various articles including weapon of offence
i.e. 'gupti'. Appellant was arrested. Charge sheet was filed. Charge was
framed under Section 302 IPC. Appellant pleaded not guilty and claimed
to be tried. In course of trial, prosecution examined 15 witnesses and
exhibited a number of documents. Post mortem report of the victim was
exhibited on admission.
In conclusion of trial, learned trial Judge by the impugned
judgment and order dated 19.12.2007 and 24.12.2007 convicted and
sentenced the appellant, as aforesaid.
Mr. Partha Sarathi Bhattacharyya, learned Advocate appearing
for the appellant submits written complaint lodged by P.W.1 was not the
first information to the police. P.W.2 stated he along with others went to
the police station and police came to the spot. This improbabilises P.W.1
who claimed he lodged first information report with regard to the
incident. Presence of P.W.1 at the place of occurrence is also doubtful.
P.W.7, another eye witness stated none of the inmates of the family of
the deceased was present at the place of occurrence. Weapon of offence
has not been sent for FSL examination. Genesis of the prosecution case
suffers from various inconsistencies and improbabilities. Appellant is
entitled to the benefit of doubt.
Mr. Partha Pratim Das, learned Advocate appearing for the State
argues victim had been brutally murdered by the appellant in front of
the residence of Mojammel Hoque Choudhuri. Incident was witnessed by
P.Ws.1, 7 and others. Post mortem report (Exhibit 10) shows number of
incised wounds on the body of the deceased. Seized articles including
weapon of offence had been sent for FSL but due to disintegration, origin
and group of blood could not be noted in the weapon of offence. Ocular
version of witnesses is corroborated by medical evidence. Motive of
committing crime has also been proved. Hence, the appeal is liable to be
dismissed.
P.W.1 is the father and de-facto complainant in the instant case.
He stated appellant had proposed to marry his daughter. His daughter
refused such proposal. Thereafter, the appellant used to tease and
harass his daughter. Out of grudge, he committed the murder. On
28.03.1996 at 6.00 p.m. his daughter, a student of Class IX of Jadupur
High School was returning after completing her examination. Appellant
attacked her with a 'gupti'. Hearing hue and cry, he came to the spot. He
saw his daughter lying on the ground. Appellant was assaulting her.
When he resisted, the appellant attacked him. His cousin, Jobed Ali
Chowdhury caught hold of the appellant. He lodged FIR which was
scribed by P.W.9. He proved the FIR. Police came to the spot. He signed
on the inquest report. Police seized hasua, gupti, books, hawai chappal,
blood stained earth and hair cuttings of his daughter under seizure lists.
He signed on the seizure list.
P.W.2, Khurshed Ali Chowdhury, brother of P.W.1 has
corroborated his version. He is a post occurrence witness. Upon arrival
at the spot, he saw the victim lying on the road. The appellant was
sitting with a gupti. When P.W.1 tried to save the victim, appellant
attacked him with a gupti. Jobed Ali Chowdhury (P.W.11) caught hold of
the appellant and tied him with a napkin. Police seized various articles.
He is a signatory to the seizure list.
In cross-examination, he stated he and others had gone to the
police station and brought the police to the place of occurrence.
P.W.11, Jobed Ali Chowdhury is a cousin of P.W. 1. He also came
to the spot hearing hue and cry. He found the appellant was sitting
beside the body of Masuda with a gupti. P.W.1 and others were present.
He tied the appellant with a gamcha and snatched the gupti from his
hand.
P.W.4, Danesh Ali is a neighbour. He was Secretary of the Village
Committee. He was offering Namaz at the time of occurrence. He heard
'Mansurer meye Masudake Kayesh kete fello' . He rushed to the spot and
found Masuda lying dead with bleeding injuries. Kayesh was sitting
beside her. Incident was reported to Police. Police came to the spot. He is
a signatory to the seizure list.
P.W.5, Dilwara Khatun, was a student of the same school as
Masuda. She, however, was declared hostile and extensively cross-
examined with regard to her previous statement to police.
P.Ws.6 and 14 are also post-occurrence witnesses.
P.W.6, Yasin Ali deposed he came to the post and found Masuda
lying on the ground. Appellant was caught and kept in a grocery shop.
He signed the inquest report as well as the seizure list.
P.W.10, Md. Abdul Majid is the headmaster of Jadupur School.
He deposed the deceased was student of class- IX. She had come to the
school on the fateful date to take exams. He heard she had been
murdered.
P.W.7, Momina Bibi is an eyewitness to the incident. She was
going to her father-in-law's house at the material point of time. Masuda
was returning from school. She saw Kayesh following Masuda. In front
of the house of Mojammel Hoque Chowdhury, Kayesh dealt hasua blow
on Masuda. She saw the incident at a distance of 10-12 cubits. She
raised hue and cry. Thereafter, she took refuge at her father-in-law's
house. People assembled at the spot.
P.W.12, A.K. Roy was posted as Officer-in-charge of Chanchal
Police Station. He received written complaint from P.W.1 and drew up
first information report.
P.W.15, Krishnendu Mukherjee was entrusted with the
investigation. He came to the place of occurrence, held inquest over the
body of the deceased (Exhibit 2). He arrested the appellant. He seized
one gupti and cut hair of the deceased under a seizure list (Exhibit 3).
He seized other articles including hasua, one pair of hawai chappal, one
blood stained exercise book, blood stained earth and control earth under
a seizure list (Exhibit 5). He also seized blood stained wearing apparels
of the appellant under a seizure list (Exhibit 4). He recorded statements
of witnesses. He collected the post mortem report. He submitted charge
sheet.
It has been argued that the first information report lodged by
P.W.1 had been preceded by an earlier information given by P.W.2 to
police. I am unable to accept such contention. P.W.1 stated he went to
the police station and lodged complaint. P.W.12 received the written
complaint and entrusted the investigation to P.W.15. Thereafter, P.W.15
came to the spot and commenced investigation. P.W.2 claimed he and
others had gone to the police station also. Though P.W.2 does not
mention P.W.1 specifically, it appears both of them had gone to the
police station together and P.W.1 lodged written complaint which had
been scribed by P.W.9 at his residence. Hence, I am of the opinion
written complaint lodged by P.W.1 is the FIR in the present case.
It is also argued P.W.1 is not an eyewitness. There may be some
substance in such submission. Incident occurred in front of the house of
Mojammel Hoque Chowdhury. Victim was returning from school after
taking her examination. On hearing hue and cry, P.W.1 came to the spot
and found the victim lying on the road. Though he sought to portray
himself as eyewitness, other witnesses who came to the spot along with
P.W.1 viz., P.Ws.2 and 11 give an impression they are post-occurrence
witness. Most importantly, P.W.7, another eyewitness does not note the
presence of P.W.1 at the place of occurrence. In fact, in cross-
examination, P.W.7 states none of the inmates of the house of the victim
were present when Kayesh assaulted her. However, P.W.1 arrived at the
spot soon after the incident. He saw his daughter lying dead with the
appellant sitting beside her with a gupti in hand. He resisted and
appellant tried to attack him. Thereafter his cousin P.W.11 caught hold
of the appellant and tied him with a napkin. In this regard, P.W.1 is
corroborated by his brother (P.W.2), his cousin (P.W.11) and other local
people viz., P.Ws.4, 6 and 14.
Even if one discounts P.W.1 as eyewitness, there is nothing on
record to improbabilise presence of P.W.7, another eyewitness at the
spot. P.W.7 was returning to her father-in-law's house from her parental
residence. Masuda crossed her on the road. She saw the appellant
following Masuda. Appellant assaulted Masuda with a gupti. P.W.7
raised hue and cry and rushed to the safety of her father-in-law's house.
In spite of extensive cross-examination she remained unshaken.
The aforesaid pieces of evidence leave no doubt in my mind that
the appellant had assaulted Masuda with a gupti and murdered her.
Post mortem report (Exhibit10) shows incised wounds on the body of the
deceased corroborating the ocular version of prosecution witnesses.
Soon after the incident, Investigating Officer (P.W.15) came to the spot.
He arrested the appellant. He seized gupti from the place of occurrence.
He also seized blood stained earth from the place of occurrence, blood
stained wearing apparels and hair cuttings from the body of the
deceased. He sent the articles for FSL examination and human blood
was found on the wearing apparels as per FSL report. These
circumstances corroborate the version of the eyewitness (P.W.7) and
prove the offence against the appellant. Motive for commission of crime
has also been proved by P.W.1. He claimed his daughter had refused the
proposal of the appellant to marry him. Out of anger, he murdered her.
In the light of the aforesaid discussion, I am of the opinion that
the prosecution case has been proved beyond doubt.
Conviction and sentence of the appellant is accordingly upheld.
The appeal is thus dismissed.
Period of detention suffered by the appellant during investigation,
enquiry and trial shall be set off from the substantive sentence imposed
upon the appellant in terms of Section 428 of the Code of Criminal
Procedure.
Lower court records along with copies of this judgment be sent
down at once to the learned trial Court for necessary compliance.
Photostat certified copy of this judgment, if applied for, shall be
made available to the appellant upon completion of all formalities.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)
as/akd/PA
