Kripanath Biswas And Others vs State Of West Bengal
2022 Latest Caselaw 5050 Cal

Sl. No. 50




             IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                        APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Ananya Bandyopadhyay


                            C.R.A. 303 of 2012
                      Kripanath Biswas and Others
                               -Vs-
                           State of West Bengal


For the Appellants     :      Mr. Sekhar Kumar Basu, Sr. Adv.
                              Mr. Sujan Chatterjee, Adv.
                                    [for appellant No. 1, 2, 4, 6, 7 & 8]

                              Mr. Rajdeep Mazumdar, Adv.
                              Mr. Pritam Roy, Adv.
                                    [for appellant No. 5]

                              Mr. Mrityunjay Chatterjee, Adv.
                                    [for appellant Nos. 3 & 9]


For the State          :      Mr. Bidyut Kr. Ray, Adv.
                              Mr. Narayan Prasad Agarwal, Adv.
                              Mr. Pratick Bose, Adv.

Heard on               :      26.07.2022, 02.08.2022 and 03.08.2022


Judgment on            :      03.08.2022


Joymalya Bagchi, J. :-

      Appeal is directed against judgment and order dated 26.04.2012

and 27.04.2012 passed by the learned Additional District & Sessions

Judge, 1st Court, Nadia at Krishnagar in Sessions Trial No. 1(1X) of
                                     2


2005 arising out of Sessions Case No. 68(4) of 2005 convicting the

appellant for commission of offence punishable under Section 302/34

of the Indian Penal Code and sentencing him to suffer rigorous

imprisonment for life and also pay a fine of Rs. 10,000/-, in default, to

suffer rigorous imprisonment for a further of six months each of the

offence punishable under Sections 302/34 IPC. Fine amount, if

realised, 60% of the same be paid to the family of the victim as

compensation under Section 357 Cr.P.C.

      Prosecution case as alleged against the appellants are as follows:-

      One Rakhi Biswas was married to Shyamal Biswas (appellant No.

3). Prior to marriage, she had an affair with one Dilip Biswas. As a

result, relationship between the two families was strained. Few days

prior to the incident, Dilip's grandmother died. After her death on

28.11.2001

, Rabindra Nath Biswas, a neighbour of Mahadeb Biswas @

Das, father of Rakhi (appellant No. 6) proposed an amicable settlement

between the parties. A salish was held where Rakhi Biswas insulted

Rabindra Nath Biswas by saying "Dasher mathai lathi mari". Rabindra

was insulted and shouted "Dharto ray". Rakhi fled from the spot. On the

next day around 2:30 p.m., all the appellants who are either related or

friends of Shyamal Biswas, came to the residence of Rabindra and

searched for him. They also threatened to kill Rabindra. Rabindra was

not at his residence and had gone to Akandadanga. Hearing this, his

wife Menaka rushed towards Akandadanga through the fields to inform

her husband. Appellants also proceeded in search of Rabindra Nath

through the village road. At a spot between Bramhanitala and

Sasthitala, Menaka saw her husband proceeding towards their house.

Appellants accosted her husband and assaulted him with a branch of

Jewli tree on the head. They also assaulted him with bhojali. Menaka

arrived at the spot. She was kicked by Mahadeb and fell down on the

ground. She raised hue and cry. Her nephews Baneswar Biswas (P.W.

2) and Bhagirath @ Nimai Biswas (P.W. 3) who were following her also

came to the spot. As a result of assault, Rabindra Nath died at the spot.

Menaka lodged written complaint which was scribed by P.W. 9 resulting

in registration of Nakasipara P.S. Case No. 169/2001 dated 29.11.2001

under Sections 302/34 IPC against the appellants. Inquest was held

over the dead body of the deceased. Post mortem was conducted by

P.W. 11.

In conclusion of investigation, charge-sheet was filed against the

appellants.

Charges were framed under Sections 302/34/148 IPC against the

appellants. Appellants pleaded not guilty and claimed to be tried.

In course of trial prosecution examined 15 witnesses in support of

its case. Defence of the appellants was one of innocence and false

implication.

In conclusion of trial, learned trial Judge by the impugned

judgment and order dated 26.04.2012 and 27.04.2012 convicted and

sentenced the appellants, as aforesaid.

Mr. Basu, learned Sr. Advocate with Mr. Chatterjee appearing for

appellant Nos. 1, 2, 4, 6, 7 and 8 argued eye-witnesses P.Ws. 1, 2 and 3

are unreliable. Their versions are contradictory to one another. While

P.W. 1 claimed the appellants came to her residence at 3:30 p.m., P.W.

2 stated they had come at 2:30 p.m. P.Ws. 2 and 3 claimed after

threatening to kill their uncle Rabindra Nath, appellants had gone to

the house of appellant No. 6, Mahadeb but P.W. 1 is silent with regard

to such fact. As per P.W. 1, P.Ws. 2 and 3 came to the spot after the

incident and are post occurrence witnesses. Although the incident

occurred around 4:00 p.m. on a village road, no independent witness

supported the prosecution case. Although the place of occurrence is not

within Nakasipara Police Station, it is unclear how FIR came to be

registered at the said police station. P.W. 1 deposed FIR was registered

after preparation of inquest. However, perusal of the FIR shows it was

registered at 6:25 p.m. while inquest was held at 7:20 p.m.. Prosecution

case is riddled with contradictions and improbabilities. Hence,

appellants are entitled to acquittal.

Learned lawyers appearing for the other appellants adopt the

submissions of Mr. Basu.

Mr. Roy and Mr. Agarwal, learned advocates for the State

submitted P.Ws. 1, 2 and 3 are eye-witnesses. They deposed one day

prior to the incident, dispute cropped up between Rakhi Biswas and the

deceased Rabindra Nath Biswas. On the next day, appellants came to

the house of Rabindra and searched for him. They could not find him.

They threatened to kill him. P.W. 1 rushed to Akandadanga where

Rabindra Nath Biswas had gone. On the way, she saw the appellants

assault Rabindra Nath resulting in his death. P.Ws. 2 and 3, nephews

of Rabindra Nath followed P.W. 1 and saw the incident from a distance.

Depositions of eye-witnesses are corroborated by the post mortem

doctor, P.W. 11 who found severe injuries on the vital parts of the body

of the deceased. Prosecution case is therefore proved beyond doubt.

P.Ws. 1, 2 and 3 are the eye-witnesses.

P.W. 1 deposed, one day before the murder of her husband he

had tried to resolve the dispute between the family of Rakhi Biswas and

that of Dilip. Prior to marriage, Rakhi had an affair with Dilip.

Subsequently, she had married Shyamal Biswas. In the course of

salish, Rakhi insulted her husband stating "Dasher mathai lathi mari".

Her husband got annoyed and shouted "Dharto ray". Rakhi fled from

the spot. In order to teach her husband a lesson, appellants came to

their residence around 3:30 p.m. on the next day. Her husband had

gone to Akandadanga. Appellants searched for him and threatened they

would kill him. Hearing this she rushed towards Akandadanga through

the field to alert her husband. On the way she saw her husband coming

towards the house. Appellants accosted him. When she intervened,

Mahadeb kicked her. She fell on the ground. Dulu Biswas caught hold

of her husband with a cycle chain. Biswanath assaulted her husband

with a branch of Jewli tree. Shyamal, Kripanath, Kalipada and Jayanta

assaulted him with bhojali. Pantha Biswas had called her husband to

the place of occurrence. Place of occurrence was on a kaccha road

between Sasthitala and Bhramhanitala near a pond. Her husband fell

down at the spot. She raised hue and cry. Many people came including

her nephews, namely, Baneshwar and Nimai. Someone gave

information over telephone to Nakashipara Police Station. Police came

to the spot. Santanu Daw, P.W. 9, scribed the written complaint which

was signed by her. Police prepared inquest over the body of the

deceased. Police seized blood stained wearing apparels of her husband.

P.W. 2, Baneshwar Biswas deposed Rakhi Biswas had a love

affair with Dilip. Subsequently, Rakhi married Shyamal. Dilip married

another girl. There was strained relationship between the families of

Rakhi and that of Dilip. One day prior to the incident, his uncle

Rabindra Nath Biswas tried to amicably settle the dispute. A salish was

organized. At the salish, Rakhi misbehaved with her uncle. Her uncle

got enraged and shouted "Dharto ray". Rakhi ran from the spot. On the

next day, appellants came to the house of his uncle and threatened to

kill him. At that time, his uncle was not present in the house.

Thereafter, the appellants went to the house of appellant No. 6,

Mahadeb Biswas. Then they proceeded towards Majhergram through

the village road. In the meantime, her aunt Maneka went through the

field towards Bhramhanitala to inform her uncle. He along with his

brother Bhagirath also followed her aunt. From a distance of one bigha,

they saw the appellants assault his uncle with a branch of Jewli tree

and other weapons. When they reached the spot, his uncle was lying on

the ground and the appellants had fled away.

P.W. 3, Bhagirath Biswas has substantially corroborated his

brother Baneshwar, P.W. 2.

P.W. 10, Maya Mondal, is the daughter of the deceased. She had

come to her parental home on the occasion of Nabanna. She

corroborated her mother with regard to the salish and the dispute

between Rekha Biswas and her father in the course of salish. She also

deposed on the next day the appellants came to their house in search of

her father and threatened to kill him. Thereafter, her mother and her

cousins Baneshwar and Nimai proceeded down the field. Subsequently,

she heard from them that her father was murdered by the appellants.

P.W. 6, Madhusuda Mondal is a neighbour. He deposed with

regard to the salish organized by deceased Rabindra Nath between the

families of Dilip Biswas and Rekha Biswas. He stated during salish

Rekha misbehaved with Rabindra Nath. On the next day in the

afternoon, the appellants came to the house of the deceased and

threatened him. Deceased Rabindra Nath was not present in the house.

The appellants went to the hose of Mahadeb Biswas, appellant No. 6.

Thereafter, they proceeded towards Majhergram. He heard from

Baneshwar (P.W. 2) that appellants had murdered his uncle. He went to

the place of occurrence and saw the dead body of Rabindra Nath

Biswas.

P.Ws. 4, 12 and 13 were declared hostile.

P.W. 4 is the uncle of Dilip. Though declared hostile, he

supported the prosecution case with regard to the salish organized by

deceased Rabindra Nath between their family and that of Rakhi. He also

stated on the next day around 2:30 p.m., he had seen the appellants

near the house of appellant No. 6, Mahadeb. They were creating

commotion in the locality. When he enquired from appellant No. 8,

Biswanath, he stated "Toke bolbo kano". Subsequently, heard from local

people including Baneshwar (P.W. 2) that deceased had been murdered

by the appellants. He went to the place of occurrence and found body

of the deceased.

P.W. 11, Dr. Ajit Kumar Biswas, conducted post mortem

examination over the body of the deceased. He noted the following

injuries:-

(i) Lacerated injury on the occipital region of head measuring 2"

X 1" X bone deep;

(ii) Sharp-cut penetrating wound at the front of right side of chest ½" below right clavicle on mid-line measuring 1" X ½" X chest cavity deep;

(iii) Sharp-cut penetrating injury on right side of lower abdomen 2" below and 4" right lateral to umbellicus measuring 1" X ½" abdominal cavity deep.

(iv) Sharp-cut penetrating injury on right lateral side of lower abdomen measuring 1" X ½" X abdominal cavity deep.

      (v)      Right lung punctured.
      (vi)     Liver punctured.
      (vii)    Coils of small intestine punctured at various sites.
      (viii)   Left kidney punctured.

He opined injury No. 1 may be caused by hitting with a branch of Jewli

tree. The other sharp-cut penetrating injuries may be caused by blow of

bhojali. Injuries were sufficient to cause instant death. He proved injury

report, Exhibit-6.

P.Ws. 14 and 15 are the investigating officers.

P.W. 14, S.I. Sougata Roy, deposed he was endorsed investigation

of the case. He arrived at Brahmanitala at 19:15 hours. He held inquest

over the body of the deceased. He found marks of the injury below right

collar bone, right abdomen and back of head. He proved the inquest

report, Exhibit-4/1. He sent the dead body for post mortem

examination. He prepared rough sketch map of the place of occurrence.

He seized blood stained earth, control earth from the place of

occurrence. He examined witnesses. He seized blood stained wearing

apparels of the deceased under seizure list, Exhibit- 3/1. He

unsuccessfully searched for recovery of weapons. He collected post

mortem report.

P.W. 15, S.I. Suman Chatterjee, concluded the investigation and

submitted charge-sheet.

Firstly, appellants have challenged the registration of FIR by P.W.

1 at 6:25 p.m. It is contended P.W. 1 in-chief stated FIR was registered

after the preparation of inquest report at 7:20 p.m. Hence, FIR is ante-

timed. In cross-examination, P.W. 1 has clarified the position. She

deposed police came to the spot after two hours, that is, around 6:00

p.m.. Thereafter, she again came to the place of occurrence by police

van. Police took away the dead body after holding inquest around 8:00

p.m. Reading the evidence of P.W. 1 as a whole in the light of the other

evidence on record, it appears on receiving a telephonic call police had

come to the spot around 6:00 p.m. Thereafter, P.W. 1 went to the police

station and lodged FIR which was scribed by P.W. 9. Subsequently, she

again went to the place of occurrence in a police van and inquest was

held. The aforesaid version corroborates registration of FIR at 6:25 p.m.

and, thereafter, preparation of inquest report at 7:20 p.m. A comment

by P.W. 1 in-chief that FIR was lodged after inquest is a slip of tongue

and cannot be read out of context in the backdrop of her entire evidence

and other corroborative materials on record. Though the incident did

not occur within Nakasipara Police Station, police attached to the said

police station upon receiving telephonic information had reached the

spot. Accordingly, P.W. 1 lodged FIR at the said police station. Failure

on the part of the police to transfer the investigation to the adjoining

police station does not affect either the legality or credibility of the

prosecution case. In this regard, reference may be made to sub sections

(1) and (2) of section 156 Cr.P.C. which read as follows:-

"156. Police officer's power to investigate cognizable case.- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate."

Prosecution case essentially hinges on the depositions of the eye-

witnesses, P.W. 1 (wife of the deceased) and P.Ws. 2 and 3 (nephews of

the deceased).

Analysis of the evidence of P.Ws. 1, 2 and 3 would show on the

day prior to the incident a salish was held under the auspices of the

deceased Rabindra Nath between the families of Rakhi Biswas and that

of Dilip Biswas. In the course of Salish, Rekha misbehaved with the

deceased. Appellants got enraged and shouted "Dharto ray". Rakhi ran

away from the spot. On the next day in the afternoon, appellants came

to the residence of the deceased. Deceased had gone to Akandadanga

and was not present at the house. Appellants searched for him and

threatened to kill him. Thereafter, they went to the residence of

appellant No. 6, Mahadeb. From there they proceeded towards

Majhergram through village road. In the meantime, P.W. 1, Menaka

(wife of the deceased) proceeded towards Brahmanitala through the

fields. Menaka saw her husband proceeding towards Brahmanitala

through village road. At that juncture, appellants accosted him. Menaka

also reached the spot and Mahadeb kicked her. Dulu caught hold of her

husband with a cycle chain by the neck. Biswanath assaulted him with

the branch of Jewli tree on the head. Shyamal, Kripanath, Kalipada and

Jayanta assaulted him with bhojali. Pantha Biswas had called her

husband. P.Ws. 2 and 3 (nephews of the deceased) had followed their

aunt through the fields. From a distance of one bigha, they saw the

appellants assault the deceased. When they reached the spot, deceased

was already lying on the ground and the appellants had fled away.

Learned Counsels for the appellants argued the prosecution case

is not supported by independent witnesses. There are many

contradictions in the depositions of the related eye-witnesses, P.Ws. 1, 2

and 3. Their depositions also suffer from various omissions when

compared with their earlier statements to investigating officer, P.W. 14.

I have compared the depositions of P.Ws. 1, 2 and 3. Their narrations

are substantially corroborative of one another. There are minor

variations with regard to the time when the appellants assembled in

front of the house of the deceased. P.W. 1 stated they came around 3:30

p.m. while P.W. 2 stated they came at 2:30 p.m. P.W. 3 claimed the

appellants had come between 2:30 p.m. and 3:00 p.m. The aforesaid

variation with regard to time when the appellants assembled in front of

the house of Rabindra Nath is barely half an hour and does not affect

the unfolding of the prosecution case. Similarly, failure of P.W. 1 to

state that the appellants had initially gone to the house of Mahadeb

Biswas (appellant No. 6) is of little consequence. After hearing the

threat, P.W. 1 rushed through the fields towards Brahmanitala to warn

her husband. Hence, she may have failed to notice the appellants go to

the house of Mahadeb before proceeding towards Majhergram through

kaccha road. With regard to the so-called omissions in their earlier

statements to investigating officer, I note no contradiction/omission was

taken by the defence with regard to P.W. 1, Menaka. Even the omissions

in the depositions of P.Ws. 2 and 3 vis-a-vis their earlier statements are

minor and do not affect the crux of the prosecution case. Minor

variations in the evidence of a witness which do not go to the root of the

prosecution case cannot be treated as material contradictions affecting

the credibility of the witness. On the other hand, depositions of P.Ws. 1,

2 and 3 have a ring of truth. Hearing the threats, all the witnesses

rushed down the field to alert Rabindra Nath. P.W. 1 rushed first and

was followed by P.Ws. 2 and 3. As a result, P.W. 1 reached the place of

occurrence at the time of assault and P.Ws. 2 and 3 saw the incident

from a distance of one bigha. Their depositions substantially

corroborate each other and prove the prosecution case.

No doubt the aforesaid witnesses are related to the deceased.

However, it is trite law evidence of a witness ought not to be rejected

merely because he is related to the deceased. It is common knowledge a

person related to the deceased would be most eager to ensure that the

offender is punished. Merely on the score of relationship between the

witnesses and the deceased, I am unwilling to reject their versions.

Evidence of the aforesaid witnesses find corroboration from

independent sources too.

P.W. 6 is an independent witness who has corroborated the

prosecution case with regard to the motive of crime as well as initial

threat held by the appellants at the residence of the deceased on the

day of incident. He went to the place of occurrence and saw the dead

body with multiple injuries. Subsequently, he heard from P.W. 2 that

the appellants had murdered the deceased.

Similarly, P.W. 4 a relation of Dilip Biswas, though declared

hostile, corroborated the prosecution case with regard to motive of

crime and the fact that the appellants had assembled near the house of

the deceased and were creating a commotion.

Post mortem doctor (P.W. 11) found extensive injuries on the body

of the deceased which corroborated the manner of assault as deposed

by P.W. 1. P.W. 11 deposed injury No. 1 in the report may be caused by

hitting with branch of Jewli tree and the penetrative injuries may be

caused by bhojali.

Thus, the eye-witnesses, P.Ws. 1, 2 and 3 have been corroborated

from independent sources as well as the medical evidence on record.

Appellants had come to the residence of the deceased in a body

and searched for him. They could not find the deceased and threatened

to kill him. Thereafter, they proceeded to search for the deceased and

upon finding him had assaulted him mercilessly with the branch of

Jewly tree and bhojali. Large number of serious injuries were found on

the vital parts of the body of the deceased, namely, head, chest and

abdomen. Internal organs of the deceased, namely, lung, liver, intestine

and kidney were damaged. After assault, all the appellants fled from the

spot. Conduct of the appellants before, during and after the incident,

nature of weapons used by them and the manner and the situs of

injuries on the deceased clearly prove they shared common intention to

murder the deceased. Motive to commit the crime has also been proved.

In the light of the aforesaid discussion, I am inclined to uphold

the conviction and sentence of the appellants.

The appeal is, accordingly, dismissed.

Period of detention suffered by the appellants during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon them in terms of Section 428 of the Code of

Criminal Procedure.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial Court for necessary action.

We note that the incident occurred in the course of a family

dispute. Appellants have strong roots in society and do not have any

criminal antecedent. Some of the appellants are advanced in age. In the

event, they make application for remission of their sentences under

section 432 Cr.P.C. upon completion of 14 years of actual

imprisonment, the appropriate authority may consider such prayer in

the light of the aforesaid circumstances and other relevant factors

including their conduct in the correctional home.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Ananya Bandyopadhyay, J.) (Joymalya Bagchi, J.)

PA (Sohel & Sourav)