Jagannath Pal @ Abhijit @ Avi vs The State Of West Bengal
2022 Latest Caselaw 8076 Cal

Item No. 51



              IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                        APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Ajay Kumar Gupta


                           C.R.A. 351 of 2018
                                  with
                 CRAN 2 of 2019 (Old CRAN 4035 of 2019)

                      Jagannath Pal @ Abhijit @ Avi
                                  -Vs-
                        The State of West Bengal


For the Appellant       :     Mr. Sabyasachi Mukherjee, Adv.

For the State           :     Mr. Sudip Ghosh, Adv.
                              Mr. Bitasok Banerjee, Adv.

Heard on                :     6th December, 2022.

Judgment on             :     6th December, 2022.


Joymalya Bagchi, J. :-

1.

Appeal is directed against the judgment and order dated

05.10.2012 and 06.10.2012 passed by the learned Additional Sessions

Judge, F.T.C.-II, Ranaghat, Nadia in Sessions Trial No.60 of May, 2006

arising out of Sessions Case No.123(1) of 2005 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 fine of Rs.10,000/-, in default, to suffer rigorous

imprisonment for six months more.

2. Prosecution case as alleged against the appellant is to the effect

that appellant was the brother-in-law of one Shyamal Paul. Shyamal

was the brother of the de-facto complainant, Bimal Kumar Paul.

Appellant was employed in the shop of Shyamal. 7/8 months ago, he

had proposed to marry Bina, daughter of Bimal. Bina refused and the

appellant was chastised.

3. In the early hours of 14.10.2004, appellant secretly entered the

house of Bimal and went to the room of Bina. Bimal and his wife were

in the adjoining room. Appellant had locked the said room from

outside. Bimal woke up hearing the cries of his daughter. On opening

the window between the rooms, he saw the appellant was tying his

daughter's hand with an electric wire. He shouted and told his

daughter to open the door. His daughter went out into the veranda

adjoining her room. Somehow, Bimal came out from the back door into

the courtyard of the house. His wife viz., Bharati Paul (PW3) also

followed him. Hearing hue and cry, his brother Kamal, his wife Dipali

(PW4) and their daughter Bulbuli (PW6) also came to the spot. At that

time, appellant assaulted his daughter with a bhojali on her throat,

hand and chest. Thereafter, he tried to flee but failed. Perplexed he

inflicted injuries on himself. Bimal and others broke the lock of the

veranda. His daughter was taken to the hospital where she was

pronounced dead.

4. Bimal lodged written complaint at the police station resulting in

registration of Santipur Police Station Case No.325 of 2004 dated

14.10.2004 under Section 302 of the Indian Penal Code. Appellant was

arrested and charge sheet was filed against him. Charge was framed

under Section 302 of the Indian Penal Code.

5. In course of trial, prosecution examined 14 witnesses. Defence of

the appellant was one of innocence and false implication. During his

examination under Section 313 of the Code of Criminal Procedure, he

stated he was in love with Bina. He had gone to her room and put

vermilion on her forehead. Her father, Bimal Kumar Paul (PW2)

objected to the match. He tried to assault him. Bina intervened and

suffered injuries and died. Appellant, however, did not lead evidence to

probabilise such defence.

6. In conclusion of trial, trial Judge by the impugned judgment and

order convicted and sentenced the appellant, as aforesaid.

7. Mr. Sabyasachi Mukherjee, learned Advocate for the appellant

argues the prosecution case suffers from inherent improbabilities.

When appellant entered the room, victim did not raise hue and cry. It is

unclear why she went to the veranda. Conduct of PW2 is not above

suspicion. Inspite of ample opportunity he did not save her daughter.

Presence of other witnesses at the spot is also improbable. Hence,

appellant is entitled to the benefit of doubt.

8. Mr. Sudip Ghosh with Mr. Bitasok Banerjee, learned Advocates

for the State submits PWs 2, 3, 4 and 6 are eyewitnesses. All the

witnesses saw the appellant assaulted Bina on her chest, belly and

hand. Their ocular versions is corroborated by the injuries noted by

post mortem doctor (PW13). Defence raised by the appellant during his

examination under Section 313 of the Code of Criminal Procedure is

preposterous. This defence was not even suggested in the course of

trial. Prosecution case is proved beyond doubt. Appeal is liable to be

dismissed.

9. PWs 2 (Bimal Kumar Paul), PW3 (Bharati Paul), PW4 (Dipali Paul)

and PW6 (Bulbuli Paul) are the eyewitnesses.

10. PW2 is the father of the victim and the de-facto complainant. He

deposed appellant used to work in the shop of his brother Shyamal

Paul. 7/8 months prior to the incident, he proposed to marry Bina.

Such proposal was rebuffed and the appellant was chastised. In the

night between 13-14.10.2004 he and his wife Bharati went to sleep in

their room. His daughter Bina used to sleep in the adjoining room.

There is a window between the two rooms. In the early morning around

4.00 AM, he heard screams of his daughter. Opening the window, he

found appellant had tied electric wire round his daughter's wrist. He

shouted. He tried to open the door and found it was locked from

outside. He told Bina to open the door. Bina rushed to the veranda

adjoining her room and cried for help. His brother Kamal, his wife

Dipali (PW4) and their daughter Bulbuli (PW6) came to the courtyard.

At that time, appellant struck his daughter with a bhojali on the belly,

chest and hand. His sons were residing on the first floor of the house.

Appellant tried to flee but failed. In desperation, he tried to commit

suicide and caused injury on himself. The lock of the veranda was

broken. He saw his daughter lying injured in the veranda. His

neighbour Prokash Chandra Karmakar (PW10) made phone call to

police. Police arrived at the spot. Bhojali, razor and other articles

including electric wire and locks were seized from the spot. He lodged

written complaint.

11. PW3, Bharati Paul is the mother of the deceased. She has

corroborated her husband (PW1). She deposed hearing cries of her

daughter they woke up and saw the appellant inside her room tying her

daughter's hand with electric wire. Her daughter rushed to the veranda.

Her husband went to the courtyard through the back door. She

followed him. Her daughter was assaulted by the appellant in the

veranda.

12. Hearing cries of PW1, his sister-in-law Dipali Paul (PW4) and her

daughter Bulbuli (PW6) came to the courtyard. They also saw the

appellant assaulted Bina with a bhojali.

13. PW9, Kalyani Paul is the wife of Shyamal Paul, brother of PW1

and cousin of the appellant. She deposed appellant used to work in the

shop of her husband. He had proposed to marry Bina. Such proposal

was declined and the appellant was driven out of the house. On the

fateful day, she heard appellant had murdered Bina.

14. PW5 (Rabindranath Paul), PW7 (Debesh Paul), PW8 (Subhas

Karmakar) and PW10 (Prokash Chandra Karmakar) are the neighbours.

They are the post occurrence witnesses. PW10 informed the incident to

the police over telephone.

15. PW11 (Dr. Amal Sarkar) is the Medical Officer who examined the

victim. He found bleeding injuries. He referred the victim to

Krishnanagar Sadar Hospital for treatment. He proved the injury

report.

16. PW13 (Dr. Sanjoy Roy Chowdhury) is the post mortem doctor. He

found the following injuries:-

"1) One deep cut injury of approximate length of 5", disposed slight obliquely on the anterior and left latral aspect of neck, slightly just below level of thigroid cartilage and extended on the left approx. 2.c.m. below the left angle of mandible. This cut injury is deep and cutting all the deep structure of the left side of the neck including trachea, carotid seeth, carotid vessels jagular vains and deep muscles.

2) One small cut injury approx. length of 3 c.m. on the anterior aspect of the chest approx. 3 c.m. above the right nipple. On dissection muscles of anterior wall of the chest is cut.

3) One cut injury of approx. length of 2 c.m. on the left side of the chest approx. 3 c.m. below the left nipple. On dissection muscles of anterior wall of the chest is cut.

4) One cut injury of approx. size of 4 c.m. is present, approximately 3 c.m. above right wrist joint in the inner aspect of the fore arm. On dissection tendyns are cut and radial artery is cut.

5) Another cut injury of approx. size of 2 c.m. is present, approximately 2 c.m. above the left wrist innr aspect of the left fore arm.

6) Another cut injury of approx. length of 2 c.m. is present in the inner aspect of the fore arm approximately 2 c.m. is present in the inner aspect of the fore arm approximately 2 c.m. below left elbow joint.

7) One deep cut injury of approx. size of 4 c.m. is present in the mid portion of inner aspect of left fore arm."

He opined injuries were caused by a sharp cutting weapon. They were

ante mortem in nature.

In cross-examination, he clarified injuries were not self-inflicted.

17. PW14 Rup Kumar Banerjee is the Investigating Officer. He came

to the place of occurrence. He prepared rough sketch map with index

(Ext 5). He held inquest over the dead body. He prepared inquest report

(Ext 6). Body was sent for post mortem examination. He collected post

mortem report. He seized various articles including blood stained

bhojali, small blade, iron rod and nylon electric wire. He arranged for

taking photographs of the place of occurrence by PW 12. He collected

post mortem report and submitted charge sheet.

18. From the aforesaid evidence it is clear in the early morning of

14.10.2004 victim Bina suffered injuries in the veranda adjoining her

room. Appellant was also found in the veranda with injuries.

19. PWs 2, 3, 4 and 6 have narrated the incident leading to the

injuries on the victim and the appellant. PWs 2 and 3 stated in the early

morning appellant had stealthily trespassed into the room of Bina. He

tied her hands with an electric wire. Bina cried out for help. PW 2

intervened and asked her to come out of the room. Bina rushed to the

veranda and was assaulted. Appellant tried to flee but failed. In

desperation he inflicted injuries on himself.

20. Learned counsel strenuously argued the depositions of PWs 2 and

3 are improbable. He contended it is unnatural Bina would keep quiet

and not raise alarm till her hands were tied. Conduct of PWs 2 and 3

during the incident is also inexplicable.

21. I am unable to accede to such submission. Bina was sleeping in

her room with the door ajar. Appellant trespassed into the room while

she was asleep. So Bina was unaware of the presence of the appellant

till he tied her hands with the help of electric wire. She cried out for

help. Hearing her cries, PWs 2 and 3 woke up and saw the incident

through the window in between two rooms. Appellant had locked the

door of the room of PWs 2 and 3 from outside. As a result, PW 2 could

not come out of the room and save his daughter. He told his daughter to

open the room. His daughter ran out to the veranda adjoining her room

and appellant followed her. Somehow PWs 2 and 3 came out into the

courtyard. From there they saw the incident.

22. The aforesaid narration graphically describes the incident

resulting in fatal injuries upon the victim. PWs 2 and 3 are corroborated

by their relations PWs 4 and 6.

23. Their ocular versions are supported by the injuries noted in the

post mortem report. PW 13 Dr. Sanjoy Roy Chowdhury is the post

mortem doctor. He found sharp cutting injuries on the breast, stomach

and hand of the deceased.

24. Investigating officer seized blood stained bhojali, razor as well as

electric wire from the place of occurrence.

25. These circumstances corroborate the eye-witnesses and establish

the prosecution case beyond doubt.

26. In the course of trial, appellant took contradictory defences.

During cross examination it was suggested that the victim had suffered

self inflicted injuries. But, during his examination under section 313

Cr.P.C appellant took an absurd defence. He claimed PW 2 (father of the

victim) had tried to assault the appellant. Bina intervened and she

suffered injuries. No suggestion to that effect was put to PW 2 in cross.

Number of injuries found on Bina improbabilises the defence. If she had

suffered injury in the manner and under circumstances as suggested by

the appellant, she would not have suffered so many injuries on her

body. Defence of the appellant runs hollow and I am unwilling to accept

the same.

27. Even otherwise, prosecution stands on its own legs through the

evidence of eye-witnesses and the medical evidence on record. Hence, I

am inclined to uphold the conviction and sentence of the appellant.

28. Appeal is, accordingly, dismissed.

Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off from the substantive sentence imposed

upon them in terms of section 428 of the Code of Criminal Procedure.

29. In view of disposal of the appeal, connected applications, if any,

also stand disposed of.

30. Lower court records along with copies of this judgment be sent

down at once to the learned trial Court as well as the Superintendent of

Correctional Home for necessary compliance.

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

parties on priority basis on compliance of all formalities.

I agree.

(Ajay Kumar Gupta, J.)                        (Joymalya Bagchi, J.)