Liku Biswas vs State Of West Bengal
2022 Latest Caselaw 3772 Cal

Sl. No. 33




                 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. 260 of 2013
                                 with
              CRAN 2 of 2014 (Old No. CRAN 3846 of 2014)

                            Liku Biswas
                                -Vs-
                         State of West Bengal


For the Appellant :   Mr. Swapan Kumar Mallick, Adv.
                      Mr. Kazi M. Rahaman, Adv.
                      Ms. Sudeshna Das, Adv.
                      Mr. Arun Kunar Jana, Adv.


For the State      : Mr. Bidyut Kumar Roy, Adv.
                     Ms. Rita Datta, Adv.


Heard on           : 30.06.2022

Judgment on        : 30.06.2022

Joymalya Bagchi, J. :-

        Appeal is directed against the judgement and order dated

12.09.2012

and 13.09.2012 passed by the learned Additional District

& Sessions Judge, Fast Track 1st Court, Malda, in Sessions Trial Case

No. 15(6)2010 arising out of Sessions Case No. 97 of 2012 convicting

the appellant for commission of offence punishable under Sections

302 of the Indian Penal Code and sentencing him to suffer

imprisonment for life and to pay fine of Rs.5,000/-, in default to suffer

further rigorous imprisonment for six months more for the offence

punishable under Section 302 of the Indian Penal Code.

Prosecution case as alleged against the appellant is to the

effect that the victim housewife Kashmira Bibi was married to the

appellant according to Muslim rites and customs. Appellant being

abetted by other in-laws subjected the housewife to torture. Two male

children were born from the wedlock. Subsequently, appellant started

threatening that he would divorce his wife, Kashmira Bibi. On the

fateful day i.e. 07.09.2011 at around 3.30 P.M. appellant informed

Kurdush Sk. (P.W. 1), father of the deceased, that he would divorce

his daughter and asked him to come to his residence with Morol

Sardar. Mother of the appellant also abused father of the deceased

over telephone. Hearing the news Kurdush Sk. (P.W. 1) along with

his wife, Hasina Bibi (P.W. 7) went to the matrimonial home of their

daughter. After reaching her matrimonial home, they received

information that at around 4.30 P.M. appellant had murdered their

daughter in front of their bedroom by firing at her left eye. They found

their daughter lying dead with bleeding injury on the floor of the

bedroom. Kurdush Sk. (P.W. 1) lodged written complaint against the

appellant and other in-laws resulting in registration of Kaliachak

Police Station Case No. 456 of 2011 dated 07.09.2011 under Sections

498A/302/34 of the Indian Penal Code.

In conclusion of investigation charge sheet was filed against

the accused persons and charges were framed under Sections

498A/34 of the Indian Penal Code against the in-laws of the deceased

and under Sections 498A/302 of the Indian Penal Code and under

Section 27 of the Arms Act against the appellant. Accused persons

pleaded not guilty and claim to be tried.

In the course of trial, prosecution examined 16 witnesses and

exhibited a number of documents. Defence of the accused persons

was one of innocence and false implication. In conclusion of trial,

learned trial Judge by the impugned judgment and order convicted

and sentenced the appellant, as aforesaid. By the selfsame judgment

appellant and co-accuseds were acquitted from the charge under

Section 498A of the Indian Penal Code.

Mr. Mallick, learned Counsel appearing for the appellant

submits prosecution case suffers from various contradictions and/or

inconsistencies. Evidence of the relations of the deceased is not

corroborated by independent witnesses. Their evidence with regard

to phone call to the father of the deceased immediately prior to the

incident is untrustworthy. Nobody saw the appellant fire at the

deceased. Motive to commit crime is not proved. Alternatively, it is

contended that the incident occurred in the course of a quarrel and

appellant had no intention to murder the deceased. Hence,

conviction may be altered from Section 302 of the Indian Penal Code

to Section 304 of the Indian Penal Code.

Mr. Roy, learned Counsel appearing for the State submits

evidence of the de facto complainant and other relations of the

deceased unequivocally show immediately prior to the incident

appellant had telephoned P.W. 1 and threatened to divorce his

daughter. When P.W. 1 and his wife rushed to her matrimonial home

they found her lying dead with gunshot injury in the left eye. Medical

evidence supports the ocular version of the witnesses. Appellant and

the deceased used to stay alone in the room and no explanation is

forthcoming from the appellant how his wife suffered gunshot injury.

These circumstances unequivocally establish the guilt of the

appellant.

P.Ws 1, 2, 6 and 7 are the relations of the deceased, Kashmira

Bibi.

P.W. 1(Kurdush Sk.) is father of the deceased and de facto

complainant. He deposed his daughter was married to the appellant

seven years ago. Two children were born from the wedlock. On the

fateful day he received telephone call from the appellant who told him

to take back his daughter. Subsequently, mother of the appellant gave

similar direction. He and his wife rushed to the matrimonial home of

her daughter. After reaching there they heard that the appellant had

fired at her daughter resulting her death. He found his daughter lying

dead in the house. He lodged written complaint which was scribed by

P.W. 16 (Kishore Saha).

In cross-examination he stated that appellant and his wife used

to live separately from other in-laws.

P.W. 7 (Hasina Bibi) is the mother of the deceased. She

corroborated deposition of her husband, P.W. 1. She stated that at

3.30. P.M. the appellant had made a telephone call calling upon them

to take their daughter back. His mother also gave similar direction.

When they reached the matrimonial home of their daughter, they

heard the appellant had shot the victim in the eye. They found their

daughter lying dead on the floor with a bullet injury.

In cross-examination, she stated there was visiting terms

between them and the appellant.

P.W. 2 (Ekram Sk.) and P.W. 6 (Ibrahim Sk.) are the brothers of

the deceased. They corroborated the depositions of their parents.

P.W. 5 (Dr. Bablu Saren) is the post mortem doctor. He found

following injuries:-

"1. One entry of bullet wound present over the posterior aspect of right side of vulve of partial scale (1.5 X 1.5 c.m.).

2. Evidence of burn marked present around of wound, rounded in save, grease colour present around the wound, wond margidn lacerated, evuted, abraded, evidence of vital reaction are present on de-section extra

vasation of blood, in soft tissues around the wound scalp. One whole present over posterior aspect of right parietal bone.

On facing the track, meninges by parietal lobe with left temporal lobe ruptured and with inter cerebral hematoma in all lobes and bullet exit by factured the left temporal bone with scalp 1" above left ear. Exit wound is lacerated (1 X 1 c.m.)."

He opined death was due to immediate shock and

haemorrhage arising from ante mortem brain injuries, homicidal in

nature.

P.W. 9 (J. L. Choudhury) is the police officer who received

written complaint from P.W. 1 and P.W. 11 (Atiur Rahaman) is the

investigating officer of the case. P.W. 11 held inquest over the dead

body of the deceased. He visited place of occurrence and prepared

rough sketch map. He recorded statements of the witnesses. He

arrested the appellant. He seized Kabilnama. He collected post-

mortem report and submitted charge-sheet.

Evidence on record particularly that of P.Ws. 1, 2, 6 and 7

show that the appellant was married to the deceased Kashmira Bibi

seven years ago. Two children were born to the couple. Relationship

between the couple had soured. On the fateful day i.e. 07.09.2011

appellant made a phone call to his father-in-law and stated he wanted

to divorce his wife. He told him to take back his daughter. Hearing

this, P.W. 1 and his wife (P.W. 7) came to the matrimonial home of

their daughter and found her lying dead in the room with gunshot

injury. They heard from local people that the appellant had fired at

the deceased. Post mortem doctor (P.W. 5) found gunshot injury on

the left eye of the deceased and opined death was due to shock and

haemorrhage from brain injuries, homicidal in nature. Hence,

homicidal death of the housewife at her matrimonial home due to gun

shot is proved beyond doubt. Mr. Mallick, learned Counsel for the

appellant has argued nobody saw the appellant shoot at his wife.

Evidence on record shows that the appellant and his wife stayed alone

at the matrimonial home. Other relations used to reside separately in

separate mess. On the fateful day, at around 3.30 P.M. the appellant

had made a phone call to P.W. 1 (Kurdush Sk.) and asked him to take

back his wife. Within a couple of hours, P.Ws. 1 (Kurdush Sk.) and 7

(Hasina Bibi) found their daughter lying dead with a gunshot injury in

the matrimonial home. They heard from local people that the

appellant had murdered his wife.

These local witnesses namely Sukila Bibi (PW 3), Dally Sk (PW

4) and Md. Tukrajul Sk (PW 8), however, did not support the

prosecution case. They resiled from their earlier statements before

police and were extensively cross examined with regard to their

prevaricating stance. Lack of support from the aforesaid witnesses

does not erode the intrinsic truth in the prosecution version. On the

other hand, it gives rise to an irresistible inference that the local

witnesses owing to their closeness and affinity to the appellant had

resiled from their earlier stance and tried to screen the offender from

lawful punishment.

Evidence of the relations of the deceased and the post mortem

doctor clearly establish the following circumstances against the

appellant:-

(a) Appellant had married the deceased Kashmira Bibi seven

years ago. Appellant and the victim used to reside separately from

other in-laws;

(b) Appellant was not happy with his wife;

(c) On the fateful day i.e. 7.9.2011 he made a phone call to PW

1 informing him to take his daughter back;

(d) PW 1 and his wife (PW 7) went to the matrimonial home and

found the deceased lying dead with a gun-shot injury on the head;

(e) Post mortem doctor opined death was due to aforesaid injury

which is homicidal in nature;

(f) Appellant was unable to give explanation with regard to

homicidal death of his wife.

These circumstances have been proved beyond doubt and

irresistibly point to the guilt of the appellant and rule out any possible

hypothesis of innocence.

Finally, it is argued the conviction may be altered from one of

murder to culpable homicide not amounting to death. Mr. Mallick

submits incident occurred in the course of sudden quarrel between

the couple and appellant did not intend to murder the housewife.

I am unable to accede to such submission also. Appellant was

eager to get rid of his wife. He informed her father (PW 1) to take his

daughter back. Thereafter, he shot his wife on the head with a gun.

The motive to commit the crime is clearly established. Nature of the

weapon used and the vital portion of the body i.e head at which the

appellant fired clearly show his intention to commit murder. Hence, I

am not inclined to scale down the culpability of the appellant from

murder to culpable homicide.

In light of the aforesaid discussion, I uphold the conviction and

sentence of the appellant.

The appeal is, accordingly, dismissed.

Connected applications, if any, also disposed of.

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 as well as the Superintendent

of Correctional Home for necessary compliance.

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.)

sdas/tkm/PA