Srimanta Mandi vs The State Of West Bengal
2022 Latest Caselaw 7739 Cal

                    IN THE HIGH COURT AT CALCUTTA
                      Criminal Appellate Jurisdiction
                              Appellate side


PRESENT:

HON'BLE JUSTICE CHITTA RANJAN DASH
              AND
HON'BLE JUSTICE PARTHA SARATHI SEN


                            C.R.A. 417 OF 2004


                              Srimanta Mandi
                                    Vs.
                          The State of West Bengal




For the Appellant                : Mr. Partha Sarathi Bhattacharyya, Adv.



For the State                    : Ms. Faria Hossain, Adv.

                                  Ms. Sujata Das, Adv.




Heard on                         : 29.07.2022, 07.09.2022



Judgment on                      : 22.11.2022.
                                           2



PARTHA SARATHI SEN, J.:-


1.

The present appeal arises out of the Judgment dated 19.06.2003 as passed

by learned Sessions Judge, Purulia in S.T. No. 5 of 2003 (arising out of Sessions

Case No. 63 of 2003 and G.R. Case No. 156 of 2001) whereby and whereunder the

present appellant was found guilty under Section 302 of the Indian Penal Code

and thus sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/-

(rupees five thousand) i.d. to suffer additional rigorous imprisonment for one year.

The convict felt aggrieved and thus preferred the instant appeal.

2. In order to dispose of the instant appeal fairly and effectively, the facts

leading to S.T. No. 5 of 2003 is required to be dealt with in a nutshell.

3. On 22.05.2001, one Rabilal Kisku, son of Shri Hapan Kisku of village Kelahi,

Kalidaha lodged a written complaint with O.C., Kashipur Police Station to the

effect that on 21.05.2001 at about 5 P.M., he along with his all the family

members left for cultivation and at that time his daughter Purnima Kisku, aged

about 22 years was alone in her home. It has been alleged in the said written

complaint that taking advantage of such situation one Srimanta Mandi (the

appellant herein) committed rape upon his said daughter and thereafter murdered

her by cutting her throat. It has been alleged further that when his wife came back

to his home, she noticed that the said accused was fleeing away and after entering

into her house, she also noticed that her said daughter i.e. Purnima Kisku was

lying in dead condition and besides her dead body one cap and one napkin

(gamcha) were lying.

4. On the basis of the said written complaint Kashipur P.S. Case No. 43 of

2001 dated 22.05.20001 under Sections 450/376/302 Indian Penal Code was

started. Investigation was taken up and on completion of the same charge sheet

was submitted under Sections 450/302 Indian Penal Code. Learned ACJM,

Purulia found that the said case is exclusively triable by a Court of Sessions and

accordingly by his order dated 08.04.2003, he committed the said case record to

the learned Sessions Judge, Purulia for trial and disposal.

5. Lower Court Record reveals that on 23.04.2003, the learned Trial Court

considered the charges against the accused and on perusal of the entire materials

as placed before him, framed charge under Section 302 of the Indian Penal Code

and since the accused (the appellant herein) pleads his innocence, the trial

proceeded.

6. Lower Court Record reveals further that in order to bring the charges, the

prosecution has examined 11 (eleven) witnesses in all and various documents have

been exhibited both on the side of the prosecution and defence.

7. For the sake of convenience the prosecution witnesses can be categorised in

the following manner:-

Private Witnesses Police Official Medical Practitioners

PW-1 - Informant/father PW-11 - Recording Officer PW-6 - Autopsy surgeon.

of the victim.              as well as Investigating
                            Officer.                     PW-7 - Medical Officer of
PW-2 - Mother of the                                     Purulia Sadar Hospital.
victim.
                                                         PW-8      -   Radiologist    of



PW-3 - Co-villager.                                      Purulia     District      Sadar
                                                         Hospital.
PW-4 - Brother of the
victim.                                                  PW-9 - Medical Officer
                                                         (Surgeon)      of      Purulia
PW-5 - Scribe                                            District Sadar Hospital.


                                                         PW-10 - Medical Officer-
                                                         cum-pathologist attached
                                                         to   the    B.C.    Roy   Polio
                                                         Clinic      and      Hospital,
                                                         Kolkata.

8. In considered view of us there is no necessity to discuss the oral evidence of

all the prosecution witnesses since those are not much relevant for effective

adjudication of this appeal and thus in this judgement the evidence of those

prosecution witnesses will be discussed which are relevant and have a strong

bearing with the case in hand.

9. As discussed above P.W.-1 being the informant as well as the father of the

victim in course of his examination-in-chief practically echoed the version of his

written complaint (Exhibit-1). In course of his examination-in-chief he stated that

his daughter Purnima Kisku was unmarried at the time of her murder and such

incident of murder took place on 21.05.2001 at 5 P.M. He stated that since the

distance between his residence and the local Police Station is six miles, he could

not lodge written complaint with the said Police Station on the very fateful day and

thus he reported the matter on the next day morning. It is his further version that

on the relevant day and hour, he along with his all family members except his

victim daughter Purnima Kisku went to paddy field for the purpose of cultivation

and on the said day when his wife returned from paddy field, she found the convict

Srimanta Mandi was coming out from his house and thereafter he ran away. He

further stated that after getting information when he reached his house he found

his said daughter was no more and at that time her wearing apparel was lifted up.

10. In considered view of us, the cross-examination of P.W.-1 is not much relevant

and accordingly, the same is not discussed in detail.

11. P.W.-2 according to the prosecution is the mother of the victim who in her

examination-in-chief stated that her victim daughter Purnima Kisku at the time of

her death was aged about 22 years and the accused Srimanta Mandi (the

appellant herein) used to come to her house in their absence. She stated that there

was no negotiation of marriage between the accused and Purnima Kisku. She

further stated that on the relevant day her said daughter was alone in her house

and at that time the other family members including her went to the paddy field

for cultivation. It is her further version that on the relevant day and hour when

she reached at the door of her house, the accused ran away after pushing her and

at that time the accused did not give any reply to P.W.-2 as to why he was running

away. It is the further version of P.W.-2 that on entering into her room she noticed

that there was injury on her said daughter's neck and that she was ravished. She

stated that by the side of the dead body of her said daughter she found one napkin

(gamcha) and a cap of the accused as well as one bloodstained batali (a sharp

edged weapon). The cross-examination of P.W.-2 is however very much relevant.

P.W.-2 stated in her cross-examination that when she came back to her home on

the relevant day from the paddy field, dark was nearly approaching and when she

stepped into the court yard, the accused Srimanta Mandi ran away from her bed

room by giving a push to her. She reiterated that after entering into her room she

found that her said daughter was dead and her wearing apparel was lifted up. She

denied all the suggestions as given to her by the learned Advocate for the accused.

12. PW-3 in course of his examination-in-chief stated that after hearing hue and

cry he came to the house of the P.W.1 and after entering into his room he found

that the victim Purnima Kisku was lying in dead condition having cut injury on

her throat and at that time her wearing apparel was lifted up. In course of cross-

examination he stated that when he went to the house of P.W.-1, it was almost

dark.

13. P.W.-4 being the brother of the victim lady stated that on the relevant day

the accused murdered her sister at their home when no other of his family

members was present. He saw the dead body of Purnima Kisku on the relevant

date. In course of his examination-in-chief he identified the cap of the accused as

well as the napkin (gamcha). In cross-examination P.W.-4 stated that on the

relevant day and hour he went to the paddy field. He stated further that similar

type of cap and napkin (gamcha) were available in the market. He further stated

that on the basis of the identification of the cap and napkin (gamcha) and after

hearing the entire incident from his mother he understood that the accused had

commited murder of his sister.

14. P.W.-5 in course of his examination-in-chief stated that the written

complaint was written by him as per instruction of P.W.-1 and that he was present

at the time of the inquest of the dead body of the victim. The cross-examination of

the P.W.-5 in considered view of us is not much relevant and accordingly the same

is not discussed.

15. P.W.-6 being the autopsy surgeon in course of his examination-in-chief duly

proved the autopsy report (Exhibit 4). He stated that in course of post-mortem

examination he found one penetrated wound at the anterial part of neck and the

measurement of such wound is 1 inch x ½ inch deep to trachea. He further

noticed that the trachea was injured and presence of foetus and placenta in the

uterus of the victim which he sent for forensic examination. According to him the

death of the victim occurred due to severe shock and haemorrhage and as a result

of the abovementioned injury which is anti-mortem and homicidal in nature. In

course of his cross-examination, he stated that the injury caused depends upon

the dimension of batali (the alleged weapon of offence). He further stated that he

noticed that the depth of the injury was up to trachea although he did not

measure it numerically. He stated further that at the time of post-mortem

examination he found no injury on the private parts of the victim. However, he

noticed that the deceased was pregnant.

16. Lower Court record reveals that four other medical practitioners, namely,

P.W.-7 to P.W.10 were examined by the learned Trial Court. However, their

evidence has got no bearing with the charges framed as against the accused by the

learned Trial Court and thus we find no necessity to discuss such evidence.

17. P.W.-11 being the Officer-in-charge of Kashipur Police Station received the

written complaint from P.W.-1 and thereafter he himself took the charge of

investigation. In course of his examination-in-chief he stated that he visited the

P.O., prepared the sketch map, made inquest over the dead body of the victim,

examined the available witnesses, collected the post-mortem report and prepared

the seizure list and on completion of investigation he submitted charge sheet

against the accused. In course of his cross-examination P.W.11 stated that while

examining P.W.-2 under Section 161 Cr.P.C. the said P.W.-2 did state to him on

the relevant day and hour the accused pushed her down and fled away. He stated

further that P.W.-2 did not state to him that the wearing apparel of the victim was

lifted up then. He denied that he conducted a perfunctory investigation.

18. In course of his argument, Mr. Bhattacharyya, learned Advocate for the

appellant as appointed by this Court draws attention of this Court to the certified

copy of the impugned judgement. It is contended by him that while passing the

impugned judgement learned Trial Court has miserably failed to appreciate that

the present case is based on circumstantial evidence and that the chain of

circumstances as required to be proved in such type of cases are absolute

incomplete and therefore learned Trial Court misdirected himself in coming to a

conclusion that the present appellant has committed offence under Section 302 of

the Indian Penal Code. It is contended further that while passing the impugned

judgement learned Trial Court misdirected himself in placing too much reliance

upon the evidence of the P.W.-2 and at the same time failed to appreciate that

P.W.-2 is not the ocular witness of the alleged murder of the victim. Mr.

Bhattacharyya, learned Advocate thus submits that it is a fit case for allowing the

instant appeal by setting aside the impugned judgement as passed by the learned

Trial Court.

19. Ms. Faria Hossain, learned Advocate for the State in course of her argument

opposed the contention as raised by Mr. Bhattacharya, learned Advocate. It is

argued by her that learned Trial Court committed no error of fact or error of law in

placing his reliance upon the unchallenged testimony of P.W.-2. It is contended

that learned Trial Court while passing the impugned judgement found that P.W.-2

could not be shaken in course of her cross-examination and therefore learned Trial

Court committed no mistake in convicting the present appellant under Section 302

of the Indian Penal Code. It is argued that it is a fit case for dismissal of the

instant appeal.

20. We have perused the entire materials as placed before this Court. We have

also given our due consideration over the submissions of the learned Advocates of

both the sides. On perusal of the evidence of the prosecution witnesses there is no

doubt in our mind that death of the victim lady was homicidal in nature since the

evidence of P.W.-6 i.e. the autopsy surgeon as discussed above is very much clear

to that effect. In course of his cross-examination nothing could be established on

the part of the defence that the death of the victim is either natural or accidental.

21. There is no iota of doubt in our mind that the instant case is based on

circumstantial evidence and accordingly we propose to peruse the five golden

principles relating to circumstantial evidence as time to time enunciated by the

Hon'ble Supreme Court of India as well as by the different High Courts of our

country.

22. In the reported decision of 'Sarad Birbhichand Sarda Vs. State of

Maharashtra' reported in AIR 1984 Supreme Court 1622. The Hon'ble Supreme

Court of India while dealing with a case of circumstantial evidence expressed the

following view:-

"(i) The circumstances from which the conclusion of guilt is to

be drawn should be fully established;

(ii) The facts so established should be consistent only the

hypothesis of the guilt of the accused, that is to say, they

should not be explainable on any other hypothesis except

that the accused is guilty;

(iii) The circumstances should be at a conclusive nature and

tendency;

(iv) They should every possible hypothesis except the one to

be proved;

(v) There must be chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the

accused."

The same view was taken in the reported decisions of 'State of Rajastan Vs.

Rajaram' reported in (2003) 8 SCC 180 and 'State of Haryana Vs. Jagbir

Singh' reported in (2003) 11 SCC 261.

23. Keeping in mind the above five principles relating to circumstantial evidence

we now propose to look to the evidence of P.W.-2 once more. On careful scrutiny of

the evidence of P.W.-2, it appears to us that it is the version of the P.W.-2 that on

the fateful day and hour she noticed that the accused was coming out from her

house and on being asked by her, the accused did not answer to her query and on

the contrary he pushed her and fled away. It is her further version that thereafter

she entered into her room and found cut injury on the throat of her daughter

Purnima Kisku. Apart from this, no other positive evidence came out from the

mouth of the P.W.-2 to rope the appellant with the charge of murder. It appears to

us that the learned Trial Court while passing the impugned judgment expressed

the view that this piece of evidence clearly and categorically indicates towards the

guilt of the accused for which he was charged. In considered view of us the view

taken by the learned Trial court while appreciating the evidence of P.W.-2 is not at

all correct since the aforesaid conduct of the accused i.e. running away from the

house of the victim on the relevant day and hour after giving a push to P.W.-2 does

not categorically indicate that none but him has committed the crime of murder of

the said victim lady. Admittedly in course of investigation the alleged weapon of

offence, one cap and one napkin (gamcha) were seized from the P.O. but before the

Trial Court the prosecution has miserably failed to prove that those cap and

napkin (gamcha) belong to the accused. No endeavour was made by the

prosecution to send the bloodstained alleged weapon of offence for forensic

examination as well as no finger print report was obtained with regard to the

available finger prints as found in the said alleged weapon of offence.

24. As rightly pointed out by Mr. Bhattacharyya, learned Advocate that before

the learned Trial Court no endeavour was made by the prosecution even to prove a

motive of the present appellant to commit such crime. In this regard we propose to

look to a reported judgement 'Ganesh Lal Vs. State of Maharashtra' reported in

1992 (3) SCC 106. The relevant portion of the aforesaid reported decision is

reproduced hereunder:-

"Even in case of a circumstantial evidence absence of

motive which may be one of the strong link to complete

the chain would not necessarily become fatal to the

prosecution where other circumstances are such as to

complete the chain connecting the accused with the

crime."

The same view was taken in the case of 'Vivek Kalra Vs. State of

Rajasthan' reported in (2013) 2 CCRLR (SC) 826.

25. In view of the discussion made hereinabove we have got no hesitation to

hold that before the learned Trial Court the prosecution has not only failed to

establish the motive of the present appellant to commit the aforementioned crime

but also they have completely failed to establish the complete chain of link

connecting the present appellant with the crime.

26. In view of such, the instant appeal succeeds. The impugned judgment and

order of conviction dated 19.06.2003 and 20.06.2003 as passed by Learned

Sessions Judge Purulia in Sessions Trial No. 5 of 2003 arising out of Session Case

No. 63 of 2003 is hereby set aside. The present appellant Srimanta Mandi is thus

found not guilty of the charge under Section 302 of the Indian Penal Code and he

is thus acquitted from S.T. Case No. 5 of 2003 arising out of Sessions Case No. 63

of 2003. The present appellant Srimanta Mandi is also discharged from his bail

bond and be set at liberty at once, if not, detained in connection with any other

case.

27. Let a copy of this judgment along with the LCR be sent down at once.

28. Let a free certified copy of this judgement be forwarded to the Secretary,

District Legal Services Authority, Purulia for onward transmission of the same to

the correctional home authority where the present appellant is detained now.

29. Urgent Photostat certified copy of this Judgement, if applied for, be given to

the parties on completion of usual formalities.

I agree.

(Chitta Ranjan Dash, J.)                                  (Partha Sarathi Sen, J.)