Calcutta High Court (Appellete Side)
Samir Das @ Kabla vs The State Of West Bengal on 12 December, 2022
IN THE HIGH COURT AT CALCUTTA
Criminal Application
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 50 of 2020
Samir Das @ Kabla
Versus
The State of West Bengal
For the appellant : Mr. Jayanta Narayan Chatterjee, Adv.
: Ms. Jayashree Patra, Adv.
: Ms. Sreeparna Ghosh, Adv.
: Mr. Sayanti Santra, Adv.( apt. by
High Court Legal Services Authority)
For the State : Mr. Prasun Kumar Datta, ld. APP
: Mr. Santanu Deb Roy, Adv.
: Mr. Md. Kutubuddin, Adv.
Heard on : 21st November, 2022
Judgment on : 12th December, 2022
1
Md. Shabbar Rashidi, J.:
1.
The appeal is directed against the judgment of
conviction dated 18.04.2007 and order of sentence dated
19.04.2007 passed by the learned additional Sessions
Judge first fast track court, Arambagh, in Sessions Trial
No. 28 (10) of 2006 corresponding to sessions case No. 06
of 2006, convicting the appellant under section 302/324 of
the Indian Penal Code.
2. The facts giving rise to the instant appeal is that on
30.09.2001, Mohanalal Das, lodged a complaint with
Pursurah police station to the effect that on 30.09.2001, at
about 6/6:30 PM in the evening, the de-facto complainant
received a news that his wife Dipali Das aged about 14
years and his youngest son, Parimal Das were lying on the
road in injured condition on the back side of the house of
Prafulla Manna. Upon receipt of such news the de facto
complainant, rushed to the place of occurrence with his
second brother Hiralal Das and found his wife lying on the
road in bleeding condition with injuries on her face and
neck. He further stated that his son had injuries on his
head and body by a sharp cutting weapon. The de facto
complainant also came to know from his son got on
30.09.01 at about 6.2 5 PM, when he and wife of the de
facto complainant were returning home from the house of
Kalyan Das, after watching TV, Kebla @ Samir Das
restrained their way at the back side of the house of
Prafulla Mana and knocked down on the road. He also
assaulted with a sharp cutting weapon on her face and
throat. As the son of de facto complainant, tried to protect
his mother, Kebla alias Samir Das also assaulted his son
with the sharp cutting weapon. For the aforesaid assault
the wife of de facto complainant and his son sustained
bleeding injuries and his wife became unconscious.
Thereafter, the wife and son of the de facto complainant
were brought to their house and after that his son was
taken to Arambagh Sadar hospital for treatment whereas,
his wife was sent to Srirampur hospital but his wife expired
on her way to Srirampur hospital. The son of the de facto
complainant was admitted in Arambagh Hospital and the
dead body of his wife was lying in Srirampur hospital.
3. On the basis of such a written complaint Pursurah
police station case No. 69 dated 30.09.01 under section
341/326/302 of the Indian penal code against accused,
Kebla alias Samir Das was started.
4. The police took up the investigation and on completion
of investigation, submitted charge sheet under sections
341/324/302 of the Indian penal code. The offence, being
exclusively triable by the Court of sessions, the case was
committed to the Court of sessions upon compliance of the
provisions under section 207 of the code of criminal
procedure.
5. Accordingly, upon the appearance of the accused and
on the basis of materials in the CD, charges under section
341/324/302 of Indian Penal Code were framed against the
accused which were duly read over and explained to him to
which the accused pleaded not guilty and claimed to be
tried.
6. In order to bring home the charges leveled against the
accused, prosecution examined 29 witnesses in all. In
addition, the prosecution also adduced documentary
evidences.
7. PW 1 is the senior scientific officer, biological division of
F.S.L. at Calcutta. He has stated that on 15.2.02, some
articles were received by his office in connection with
Pursurah Police Station Case No. 69 of 2001 duly
forwarded by Learned S.D.J.M, Arambagh, Hooghly, for
examination. PW1 conducted the said examination and
prepared a report to that effect. He has proved the report
(Ext.1). He further stated that portions of the articles were
sent to the serologist to the government of India for
determining the origin and group of blood on such article
and that his office received the report from the serologist.
He has also proved the report of the serologist (Ext.2).
8. The de-facto complainant himself deposed as PW2. He
stated that accused Kabla alias Samir Das is his nephew.
He further stated that on 30.8.2001 at about 6.00 pm his
wife Dipali Das and son Parimal Das had gone to the house
of Kalyan Das to watch TV. A boy came to his house and
reported that his wife was murdered and her body was
lying near the house of Prafulla Manna. PW2 went there
and his wife was brought to the house and thereafter, she
was sent to Srirampur Hospital and was declared dead. Her
dead body was sent to Arambagh S. D. Hospital for post-
mortem. Parimal was admitted at Arambagh S. D. Hospital
for his treatment. He lodged a written complaint with the
police. PW 2 proved his signature on the First Information
Report (Exhibit 3/1), though, he could not recollect the
name of the scribe. Police conducted inquest on the dead
body of his wife and PW2 proved his signature on the
inquest report (Exhibit 4/1). In his short cross
examination, nothing favorable could be extracted by the
defense.
9. Brother of de facto complainant was examined as PW3.
In his deposition, PW3 stated that about 3 ½ years ago, in
the evening, when he was in his shop, he came to know
that his sister-in-law was sick. Upon his return after
closing his shop at around 8.00/8.30 pm, he saw his
sister-in-law lying in the verandah of his house. He
informed the matter to local police station. He however,
could not say who assaulted her. He was not examined by
the police in connection with the case. He proved his
signature on the seizure list dated 30.09.01 (Exhibit 5/1)
and that on the inquest report (Exhibit 4/2). PW3 also
stated that he scribed the written complaint as per the
instructions of one of the brothers of his deceased sister-in-
law and proved his signature thereon (Exhibit 3). The
witness was declared hostile by the prosecution. In course
of his cross examination by the prosecution, PW3 denied
having made any statement before the police regarding the
incident. However, contrary to his statement in the
examination-in-chief, in cross examination for the defense,
PW2 could not recollect at whose instructions, he wrote
down the written complaint. He stated that he got the news
of incident at 7.00 pm, came back to his house at 8.00 pm
and reported the incident to local police at 8.40 pm.
10. The person near whose house the occurrence took
place, has deposed as PW4. He identified the accused in the
dock. He has stated that on 30. 09.01 at about 6.15/6.30
p.m. Dipali was returning home from the house of Kalyan
Das after watching TV. He also stated that his house was
situated between the houses of Kalyan Das and Dipali. At
6.15/6.30 p.m. while he was teaching his son, PW 4 heard
of groaning sound. Coming out, he saw Dipali injured in
bleeding condition. He informed the matter to the house of
Dipali. PW 4 also stated that he saw blood oozing out from
the nose of Dipali as well as from her person. The inmates
of the house of Dipali gathered there. At about 9 PM police
came to the spot and called PW 4 and he narrated the
incident. Police seized some blood soaked earth and two
pairs of chappals under a seizure list. He proved his
signature on the seizure list (Exhibit - 5/2). He also proved
his signature on the inquest report dated 01.10.01 (Exhibit-
4/3). PW 4 has also stated in his deposition that he heard
that accused Kabla tried to develop illicit relations with
Dipali Das. Dipali reported the matter to her husband who
in turn reported the same to his brothers for which his
brother's admonished him. For this reason Kabla got angry
and attacked Dipali, out of grudge. In his cross
examination, PW 4 stated that he did not see the
occurrence of his own eyes.
11. PW 5 is a neighbor at whose house the deceased
and her son are stated to have visited, just prior to the
incident, for the purpose of watching TV. He has stated that
he had a jewellery shop at Sodhpur. On 30.09.01 in the
evening he was at his jewellery shop. He was informed over
telephone from his house that mother of Parimal was
murdered and Parimal had entered in to his house. He
directed his family members to confine Parimal and not let
him leave the house. It was around 6/6.30 p.m. PW 5
returned to his house at about 8.30 p.m. He however, did
not hear anything else regarding the occurrence and he did
not make any statement before the police.
12. This witness was declared hostile by the prosecution
and he has denied having made any statement before
police. In his cross-examination by the defense, PW 5
stated that he did not see the occurrence of his own eyes.
He also could not say who narrated the incident to him.
13. Wife of PW 5 deposed as PW6. She identified the
appellant as nephew of her brother-in-law. She also stated
that on 30.09.01 at about 3.00/3.30 pm, Parimal and his
mother Dipali came to the house of PW6 to watch TV. At
about 6.15 pm they left there for their own house. Parimal
suddenly returned back to her house in injured condition
and told her that his mother was killed by Kebla. He also
reported that Kabla injured him. PW6 made Parimal to sit
in her house and closed the door of her house. She also
informed the matter to her husband over telephone and
nursed Parimal. Thereafter, uncle of the Parimal came there
and took him away. This witness was also declared hostile
by the prosecution and in her cross-examination on behalf
of the prosecution; she denied having made any statement
before the police.
14. PW 7 was a Sub Inspector of police. He happens to be
a seizure list witness in whose presence, some blood
stained wearing apparels were seized. PW 7 proved his
signature on the seizure list dated 02.10.2001 (Exhibit
6/1). The seized articles were not produced in the court on
the date of his examination.
15. The victim Parimal Das deposed as PW 8. He
identified the appellant. He stated that on 30.09.01 at
about 3.00/3.30 PM, he along with his mother Dipali had
gone to the house of Kalyan Das to watch TV programme.
At about 6.15/6.30 p.m. PW 8 left the house of said Kalyan
Das with his mother for his own house. It was drizzling
then. He also stated that when they reached at the back of
the house of Prafulla Mana, the appellant Kabla suddenly
came out from the cowshed of Prafulla mana with a knife
and a Katari and hit his mother on the top portion of the
nose with a Katari. As PW 8 tried to save his mother he was
also assaulted for which he sustained injury on the middle
finger of his left hand. Kebla also assaulted PW 8 with the
Katari on his head. PW 8 fell down and became
unconscious. Kebla assaulted his mother with Katari and
knife on her abdomen. Thereafter, PW 8 rushed into the
house of Kalyan Das and narrated the incident to Smt.
Pratima Das and sought for help she closed the door and
applied medicine on his injured fingers. Thereafter, uncle of
PW 8 came there and took him to his house. The village
doctor Tuntuni Mete came to see him and was advised to
be taken to hospital. Mother of this witness was admitted at
Srirampur Hospital and he was taken to Arambagh
Hospital. He remained there for a day and came back for
cremation of his mother.
16. PW 8 also stated that the appellant Kabla used to look
into his house from the cowshed separated by a brick wall.
They appellant was in the habit of peeping into his room
from the cowshed whenever his mother used to change her
clothes. He also stated that one day while so peeping
through, Kabla lighted his gas lighter. PW 8 asked as to
who was there, Kebla fled away. The matter was reported to
the elders for which, Kabla was rebuked and punished. It
was stated that Kabla murdered his mother out of grudge.
He also tried to kill PW 8. He proved his signature on the
statement recorded before the learned Magistrate (Exhibit.
7/1 series).
17. One of the covillagers has deposed as PW9. He is a
hearsay witness. He heard that accused Kabla killed Dipali,
the wife of his covillager Mohan Lal Das, by a katari and
also injured her son. PW9 however, did not go the place of
occurrence. He also heard that the woman was taken to
hospital but she died on her way. PW9 also stated that
accused Kabla was arrested by police and as shown by him,
a Katari and a knife was recovered from the roof of the
urinal of Nimdangi Primary School. The accused also made
a statement before police, in presence of PW9, that he had
hit his aunt and the boy with the Katari and knife. The
Katari and knife was seized by police in his presence under
a seizure list to which he signed along with the accused.
PW9 proved his signature on the seizure list (Ext.8/1). He
also proved the seized Katari and knife (MAT Ext. II & III
respectively). The witness was declared hostile by the
prosecution and in his cross examination on behalf of the
prosecution; PW9 denied having made any statement before
the police.
18. Another co villager deposed as PW10. He identified the
appellant. He further stated that at the end of the month of
September, 2001, he heard that Kabla has killed his aunt
and assaulted his cousin brother while they were returning
home after watching TV program. On the following morning
PW10 came to know that aunt of Kabla died. He also came
to know that cousin brother of Kabla was admitted in the
Hospital. He further stated that one Katari and a knife was
seized by police in his presence from the roof of the urinal
of Nimdangi Primary School, as shown by Kabla. Kabla
himself brought out the said articles climbing on to the roof
and made a statement before the police that he killed his
aunt and injured his cousin brother Parimal with the said
Katari and knife. He identified the seized articles and
proved his signature on the seizure list (Exhibit 8/2). This
witness was also declared hostile by the prosecution and in
his cross examination, he denied having made any
statement before the police.
19. PW 11 is the brother of the victim Dipali Das. He
stated that on 30.09.2001 at about 7.45 pm he was
informed over telephone that his sister Dipali Das was
seriously ill. He rushed to the in-law's house of Dipali with
some other persons. Reaching there, he came to know that
Dipali was taken to Srirampur Hospital. Going to the
Hospital, PW 11 found his sister in dying condition, full of
blood. He later heard that his sister and nephew Parimal
were attacked by Kabla, who was hiding in a cow shed
while they were returning home from the house of Kalyan.
Parimal rushed to the neighboring house and reported the
incident. He was treated by local doctor and at Arambagh
S. D. Hospital whereas, Dipali died on the date of incident
itself. He has also stated that his sister had reported her
that Kabla used to give illicit proposal to her which she
reported to her husband and other elderly members and for
which Kabla was admonished. Kabla committed the
occurrence out of grudge. PW 11 proved his signature on
the inquest report (Exhibit 4/4). In his cross-examination,
PW 11 stated that he heard about the incident from his
brother-in-law Mohanlal Das.
20. PW 12 is also a hearsay witness. He heard about the
occurrence. He has given the details of the incident as
heard. However, he stated that Kabla brough out a Katari
and knife climbing into the roof of the urinal in Nimdangi
Primary School, in his presence. The said articles were
seized by the police under a seizure list on 02.10.01, to
which PW 12 signed (Exhibit 8/3). He also identified the
seized Katari and knife (Mat. Ext. II & III). In his cross
examination also, PW12 asserted the identification of the
seized articles. He further stated that he signed on the
seizure list after going through it.
21. One uncle of the appellant deposed as PW13. He
stated that the incident took place on 30th of September
5years ago (from 27.11.2006). At about 6/6.30 pm he was
in his house which he is about 100 feet from that of
Prafulla Manna. PW13 he was called by Prafulla Manna
and informed that mother of Parimal was murdered and
being asked he also reported that he saw Kabla running
away towards east. He further stated that PW 13 and
others brought the victim Dipali Das into his house and
kept her in the courtyard. Parimal was taken to local doctor
who advised to take him to hospital. Thereafter, police came
there being informed about the incident. Dipali was taken
to Srirampur Hospital where she died. Her dead body was
brought to Arambagh S. D. Hospital for post mortem
examination. In his cross examination, PW 13 stood by his
statements made in examination-in-chief.
22. Another uncle of the appellant was examined as PW
14. This witness although supported the case of the
prosecution but he happens to be a hearsay witness as he
has stated that he was at his shoproom at Sodhpur. He
however, saw local people assemble near his house and
Dipali in an injured condition.
23. PW15 is a police personnel and witness to seizure list
through which half pant and 'Ganjee' was seized. He proved
his signature on the seizure list (Exhibit 9/1) and also
proved the Seized half pant and 'Ganjee' (Mat Ext.IV). in
cross examination, he stated that he was reported by
Mohan Lal that the seized articles belonged to Parimal Das.
24. One hospital staff of Arambagh S.D. hospital has
deposed as PW16. He has proved his signature on the
seizure list through which Bed Head Ticket of Parimal Das
was seized by police (Exhibit 10/1).
25. One friend of Srikanta Das, brother of victim Dipali
Das has deposed as PW 17. He identified the accused and
stated that he had been to the house of Dipali. He is
however, a hearsay witness.
26. PW 18 is a neighbor of the victim. He also deposed as
hearsay and declared hostile by the prosecution. In his
cross examination by the prosecution, he denied having
made any statement before the police.
27. Staff of Srirampur BPHC has deposed as PW 19. He
stated that on 30.09.01 at about 10.15 pm one Dipali Das
was brought to Srirampur BPHC and was declared brought
dead. He has proved the entries in the Death Register of the
BPHC (Exhibit 11).
28. The local doctor of Nimdangi village has been
examined by the prosecution as PW 20. He has stated that
on 30.09.01 at about 06.45 pm Parimal Das was brought to
him for treatment with bleeding injuries and PW 20 advised
him to take Parimal to Hospital. He has also stated that he
was reported that Parimal and his mother were assaulted
by Kabla.
29. The brother of the victim deposed as PW 21. He has
stated that on 30.09.01 at about 8.00 pm he got
information that his sister was seriously ill. He visited her
house in the following morning when he was informed that
his sister was taken to Srirampur Hospital and her son to
Arambagh S D Hospital. Reaching Srirampur hospital he
saw the dead body of his sister. He also narrated the
incident as he heard. He has proved his signature on the
inquest report (Exhibit 4/5). In his cross examination, PW
21 admitted that his knowledge about the incident was
based on hearsay information.
30. The doctor who examined injured Parimal deposed as
PW 22. He has stated that on 30.9.2001 he examined one
Parimal Das son of Mohanlal brought by Ashok Das and
was admitted as indoor patient under him. He further
stated that on examination, he found cut injury over
anterior part of scalp 3 inches in length and stitched. He
also found cut injury over the left middle and ring fingers.
PW22 proved the injury report prepared in his pen and
signature (Exhibit 12). In cross examination, PW 22 has
opined that the injuries on the middle and ring finger could
be inflicted if one tries to save himself from any violent
activity.
31. The autopsy surgeon has been examined as PW 23. He
has stated that on 01.10.2001 he conducted post mortem
examination on the dead body of Dipali Das. On
examination he found multiple injuries,
i. one sharp cutting wound from one cheek to the other about
6 inches X 4 inches x 4 inches with one inch deep cutting
the nose and the upper jaws revealing the upper rows of
teeth.
ii. One cut injury lacerated oral cavity from one angle of the
mouth to the extension of other angle.
iii. One punctured wound1 inch x 1 inch deep over the left side
of neck below the angle of mouth.
iv. One punctured wound of 2 inches x 2 inches deep on the
left aspect of left side labia Major.
32. PW 23 also stated that in his opinion, the cause of
death was due to the profound shock following severe
hemorrhage from the multiple wounds. He also proved the
post mortem report prepared by him (Exhibit 13).
33. PW 24 is the recording officer. He received the written
complaint on 30.9.2001 by endorsing his receipt thereon
and proved the endorsement (Exhibit 3/2). He then started
Pursurah Police Station Case No. 69 dated 30.9.2001under
section 341/326/302 of the Indian Penal Code by filling up
of the formal FIR (Exhibit 14). He had no personal
knowledge of the incident.
34. One constable of police of Pursurah Police Station has
deposed as PW 25. He has stated that the wearing apparels
i.e. 'saree', 'saya' and 'blouse' of victim Dipali were seized in
his presence. He proved his signature on the seizure list
dated 01.10.2001 (Exhibit 15/1). He also tendered the
seized bloodstained wearing apparel of deceased Dipali Das
(Mat. Ext. V series). He also denied any personal knowledge
of the incident.
35. The learned Judicial Magistrate who recorded the
statement of Parimal Das under section 164 of the Code of
Criminal Procedure, deposed as PW 26. She has proved the
statement so recorded by her (Exhibit 7).
36. One Assistant Sub-Inspector of police has deposed as
PW 27. He has stated that bloodstained wearing apparels of
accused i.e. full shirt, lungi and napkin was seized by
police handed over by the accused Samir Das @ Kabla in
his presence under a seizure list prepared in this regard.
He has proved his signature on the seizure list dated
02.10.2001 (Exhibit 6/2). The witness also proved and
identified the bloodstained shirt, bloodstained Lungi and
Napkin in the court (Mat. Ext. VI, VII and VIII respectively).
37. PW 28 is another witness to the seizure list dated
01.10.2001, through which wearing apparels of the
deceased were seized. He has proved his signature on the
seizure list (Exhibit 15/2). He also identified the seized
articles (Mat. Ext. V series).
38. The Investigation Officer was examined as PW 29. He
has stated that on 30.9.2001 he was entrusted with the
investigation of Pursurah Police Station Case No. 69 dated
30.9.2001. He has also stated that on 30.9.2001,
telephonic information was received at Pursurah Police
Station from one Bablu Das to the effect that his sister-in-
law was assaulted by someone. A GDE being Pursurah PS
GD Entry No.1115 dated 30.9.2001 was lodged. PW29 was
entrusted to pursue the information. He proceeded to the
place of occurrence and on enquiry, it was revealed that at
18.25 hrs. while Dipali Das wife of Mohan Das
accompanied by her son were returning to their house after
watching TV at the house of Kalyan Das, one Kabla @
Samir Das assaulted her and her son by a sharp cutting
weapon causing grievous injuries. The injured Parimal was
already moved to Arambagh SD Hospital. Dipali Das in her
dying stage was taken to Srirampur BPHC..
39. Being endorsed with the investigation of the case, PW
29, after perusing the First Information Report, visited the
place of occurrence and prepared rough sketch map with
index (Exhibit 16). He also seized bloodstained earth and
chappals from the place of occurrence under a seizure list
(Ehibit 5). He also visited Srirampur BPHC and conducted
inquest on the dead body of Dipali (Exhibit 4). PW 29 also
proved the seizure list through which he seized the
bloodstained wearing apparels of the victim on 01.10.2001
(Exhibit 15) and identified the seized articles (Mat. Ext. V
series). He also proved the seizure list dated 02.10.2001
through which he seized the bloodstained wearing apparels
of accused Kabla (Exhibit 6). PW 29 also proved the seizure
list dated 02.10.2001 through which the offending
weapons were seized as per the statement of the accused
Kabla leading to recovery (Exhibit 8). He also identified the
seized offending weapons (Mat. Ext. II & III). PW 29 has also
proved the seizure list dated 03.10.2001 through which
wearing apparels of injured Parimal were seized (Exhibit 9).
He also collected the BHT of injured Parimal Das under a
seizure list dated 03.10.2001 (Exhibit 10). In course of
investigation, PW 29 examined available witnesses and
recorded their statements under section 161 of the Code of
Criminal Procedure, collected the post mortem report, sent
the bloodstained wearing apparels of the victim as well as
the accused for chemical examination. This witness also
tendered the blood soaked earth and chappals seized from
the place of occurrence (Mat. Ext. IX series) and identified
Mat. Exts. IV, VI, VII and VIII in court. On completion of
investigation, he submitted charge sheet against accused
Samir Das @ Kabla under section 341/324/302 of the
Indian Penal Code.
40. Upon appreciation of evidence so adduced on behalf of
the prosecution and on examination of the accused under
section 313 of the Criminal Procedure Code, by the
impugned judgment and order, convicted the accused for
the offences punishable under section 302/324 of the
Indian Penal code. He was sentenced to undergo
imprisonment for life and a fine of Rs. 5000/- and in
default of payment of fine to undergo imprisonment for two
years for the offence punishable under section 302 of the
Indian Penal Code, 1860. The accused was further
sentenced to imprisonment for one year for the offence
punishable under section 324 of the said Code.
41. It is this judgment of conviction and order of sentence,
which has been challenged in the present appeal.
42. The appellant seeks to assail the impugned judgment
of conviction and order of sentence on the grounds that
most of the witnesses relied by the learned trial court in
convicting the accused are relatives of the complainant. It
has also been elicited that inspite of most of the witnesses
going hostile to the prosecution case, conviction has been
secured. The appellant also challenged the testimony of the
eye witness PW8 pointing to his statement that he lost
senses for 1/2 minutes being assaulted and after regaining
senses he saw his mother lying with bleeding injuries.
According to the appellant such statement is not credible
and cannot be relied.
43. The other point which has been resorted to by the
appellant is that no motive behind the incident has been
proved by the prosecution and on this score, it has been
contended that the prosecution story is not believable. It
has also been submitted on behalf of the appellant that the
recovery of offending weapons is highly doubtful since the
statement leading to such recovery has not been brought
on record nor the seized articles were sealed and labeled. It
is contended that in absence of serological report regarding
the blood stains found on the seized articles renders the
complicity of the appellant in the commission of crime
doubtful. The testimony of PW 22 has been doubted by the
appellant on the ground that he was not reported the name
of the assailant.
44. On the other hand it is contended on behalf of the
State that the prosecution has been able to prove the
charges with the help of convincing evidence and therefore,
the conviction and sentenced passed against the appellant
deserves to be affirmed.
45. The case as made out by the prosecution, unfolds that
deceased Dipali and her son Parimal (PW 8) were returning
from the house of their neighbor Kalyan Das, after watching
TV after 6.00 pm on 30.9.2001. On the way, near the house
of one, Prafulla Manna, she was attacked by the appellant
Samir Das @ Kabla with a katari and a knife. Both the
victim and her son were injured with sharp cutting weapon.
The son was taken to Arambagh SD Hospital whereas,
seeing the condition, the victim was immediately moved to
the nearest Srirampur BPHC for treatment but she expired
on her way to hospital.
46. The matter was reported to the police on the date of
occurrence itself. An inquest on the dead body was
conducted at Serampore Hospital on 01.10.2001 and later
on post mortem over the dead body was conducted at
Arambagh SD Hospital on 01.10.2001. In course of the
inquest, according to the narration given by the witnesses,
the deceased Dipali Das and her son sustained injuries
inflicted by the appellant Kabla @ Samir Das by sharp
cutting weapon while they were returning from the house of
Kalyan Das. The injuries noted by the inquest officer, is
completely in conformity with that discovered at the post
mortem examination. According to the testimony of the
autopsy surgeon (PW 23), the victim Dipali Das sustained
multiple injuries on her person and that the death, in his
opinion, was profound shock following severe hemorrhage
from the multiple wounds. PW 19 has also testified that on
30.9.2001 the victim was brought to Srirampur Hospital
and was found to be brought dead (Ext.11). Therefore, the
aforesaid evidence leaves no doubt that the victim Dipali
Das died on 30.9.2001. It is also explicit that the said
victim died of profuse hemorrhage from multiple injuries.
47. Therefore, question arises as to who inflicted the
injuries which resulted in her death.
48. PW 8 is an eye witness to the incident. In fact, he is
not only an eye witness but a victim as well. According to
his narration, when he and his mother were returning from
the house of one Kalyan Das after watching TV, they were
attacked near the house of one, Prafulla Manna with sharp
cutting weapon inflicting injuries on his person as well as
that of his mother which ultimately resulted in her death.
Such story has duly been supported by the witnesses
equivocally. PW 2, the de-facto complainant is although,
not an eye witness to the occurrence but he reached the
place of occurrence just after the incident being informed
by a boy. He has testified the rest of the story. He has fully
supported the case of the prosecution that his wife and son
were to the house of Kalyan Das to watch TV and they were
attacked by the appellant while returning near the house of
Prafulla. He went to the Scene of occurrence and brought
his wife in an injured condition. His wife was moved to
Srirampur hospital where she was declared to be brought
dead. PW 3 has not supported the case of the prosecution.
However, he has testified that returning to his house at
8/8.30 pm he found Dipali lying in the courtyard. He also
accompanied the victim to Srirampur Hospital and put his
signatures on the inquest report and seizure list. PW4, near
whose house the incident took place. He has not testified
seeing the assailant but he has supported the story of
Dipali going to the house of Kalyan Das for watching TV. He
heard a sound when the victim was returning home at
about 6.15/6.30 pm and coming out of the house he saw
Dipali with bleeding injuries. He has also testified that
inmates of the house of Dipali came there and took her. The
person at whose house the victim went to watch TV (PW5)
has not claimed to have seen the incident as he was in his
shop at the relevant time. But he has confirmed having
been informed over telephone from his house that Dipali
was murdered and her son Parimal took shelter at his
house. The wife of PW 5 has also did not see the incident
but she has supported the case of the prosecution in a
better way than her husband. She not only confirmed that
she informed the incident to her husband over telephone
but she also came in support of the prosecution story that
the victim Dipali and her son came to watch TV at her
house on 30.9.2001 between 3.00/3.30 pm and 6.15 pm.
She also testified that Parimal (PW 8) suddenly came back
to her house in injured condition and that after a while
Parimal was taken away be his uncle.
49. From the testimony of the aforesaid witnesses
supported by other witnesses who signed on seizure list
and inquest report and received the information of the
incident etc. the only proposition comes to our mind with
overwhelming clarity is that there was an incident in the
evening of 30.9.2001 at around 6.15/6.30 pm and in the
incident, the victim Dipali Das and her son Parimal
received serious injuries. The victim Dipali Das died of such
injuries.
50. There appears no reason to disbelieve the testimony of
the injured eye witness PW 8. He has clearly stated that the
injuries so inflicted were caused by the present appellant.
Mere non-mentioning of the name of the assailant in the
injury report of Parimal does not seem to dent his
credibility.
51. It is well settled that where the testimony of eye
witness(es) is confident and credible proof of motive is not
of much importance especially when the story of attack set
out by the prosecution is so overwhelmingly brought home
with the help of persuasive and swaying evidence
discarding any iota of doubt.
52. We also do not find much force in the contention on
behalf of the appellant regarding related witnesses. The
evidence on record reveals that the witnesses are related to
the victim and the appellant in same degree. The appellant
happens to be cousin brother of the injured Parimal and
the deceased was aunt of the appellant. No reason appears
to have been assigned on behalf of the appellant during
cross examination to justify such contention.
53. Even if we consider the recovery of offending weapons
improper in the absence of proper proof of the statement
leading to such recovery, the evidence led by the
prosecution seems to be sufficient to give rise to one and
only one proposition leading to the guilt of the appellant in
every possibility to the exclusion of all others.
54. Therefore, in view of the discussion made hereinbefore,
we are of the opinion that the impugned judgment of
conviction dated 18.04.2007 and consequential order of
sentence dated 19.04.2007 are well founded and warrant
no interference, and thus, affirmed.
55. Accordingly, the Appeal being CRA 50 of 2020 stands
dismissed.
56. 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.
Copy of the judgment along with Trial Court Records be
sent down to the trial court at once for necessary
compliance.
57. Urgent Photostat Certified copy of this order, if
applied for, be supplied expeditiously after complying with
all necessary legal formalities.
[MD. SHABBAR RASHIDI, J.]
I agree.
[DEBANGSU BASAK, J.]
