Calcutta High Court (Appellete Side)

Sk. Saidul Islam vs State Of West Bengal on 9 September, 2022

Sl. No. 1



                 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. 138 of 2016
                               With
                 CRAN 2 of 2016 (Old CRAN 871/16)

                          Sk. Saidul Islam
                                 Vs.
                        State of West Bengal

For the Appellant :     Mr. Mainak Bakshi


For the State      :    Mr. Sanjoy Bardhan
                        Mr. Palash Chandra Majhi


Heard on            :   17.08.2022

Judgment on         :   09.09.2022


Ananya Bandyopadhyay, J.:-


      The present appeal is preferred against the judgment and order

of conviction dated 25.06.2014 and 26.06.2014 respectively passed by

the Learned 2nd Court of Additional District and Sessions Judge,

Tamluk, Purba Medinipur in Sessions Trial no. 01(9)2013 arising out

of Sessions Case no. 405 (July), 2013 convicting the appellant under

Section 302 of the Indian Penal Code sentencing him to undergo life
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imprisonment and to pay a fine of Rs. 5000/- in default, simple

imprisonment for a further period of 2 years.


         The prosecution case narrated an incident of 19.04.2013 at

about 8 pm when the complainant was dining at the courtyard of his

house he saw his sister-in-law, the victim namely Sarati Soren, wife of

Bablu Soren fall on the ground in a bleeding condition, crying aloud.

The complainant hastened to the spot and saw the appellant namely

Saidul Islam standing there having inflicted an injury to his sister-in-

law with a knife. The complainant tried to catch hold of him who

however, slipped from his clutches and ran away. The complainant

raised a hue and cry but could not captivate the appellant and

returned to the spot where his sister-in-law lay unconscious in a

bleeding condition. Thereafter, the victim was taken to a doctor

namely Tulu Babu who declared her dead. The appellant stayed

behind the house of Bablu Soren, the husband of the victim. The

complainant demanded the assailant to be punished.


         In pursuance of the aforesaid complaint, a case was registered

namely PS case No. 96/2013 dated 20.04.2013 under Section 302

IPC, initiating an investigation which culminated into submission of

the chargesheet. Subsequently, charges were framed under Section

302 IPC to which the appellant pleaded not guilty and claimed to be

tried.


         The prosecution in support of its case examined 9 witnesses

and exhibited certain documents.
                                      3


      The Ld. Advocate for the appellant submitted that the evidence

on record was not appreciated in entirety since the chain of

circumstances was not complete. The substantive evidence of PW1

differed from his complaint. He being a post occurrence witness

deposed before the Court for the first time. Moreover, the offending

weapon, control earth and blood stained earth were not seized. The

wearing apparels were not sent to the FSL for examination. The motive

to commit the offence was not established. That the appellant had

waited at the place of occurrence for a considerable period of 4

minutes after stabbing the victim was improbable. The prosecution

having failed to prove the motive to commit the crime and the chain of

circumstances not been complete, prosecution case has not been

proved beyond reasonable doubt and therefore, the appeal may be

allowed.


      The Ld. Advocate for the State submitted that the injuries

enumerated in the post mortem report were in consonance with that

of the inquest report as well as the manner and intent of inflicting

injury on the victim. The de facto complainant i.e. PW 1 saw the

appellant to flee from the place, tried to grab him, holding on to his

"Genji" who however escaped from his clutches forcibly, established

direct evidence and his version was corroborated through the Post

Mortem Report and other post occurrence witnesses. The prosecution

was able to prove its case beyond reasonable doubts. Therefore, the

appeal was liable to be dismissed.
                                       4


       PW 1, the de facto complainant stated the incident occurred on

19.04.2013 at about 8 P.M. Consequent to a clamour, discarding his

meal, he went out of his house and saw the appellant Sk. Saidul

inflicting, stab injury on to the chest of his sister-in-law Sarati Soren

with a knife and thereafter stood beside the victim. The victim cried

aloud and the complainant along with his brother Jugal Soren rushed

to her. The victim reached the courtyard of the house of the

complainant and fell on the ground sustaining bleeding injury. In the

mean time, the complainant tried to apprehend the appellant, caught

hold   of   his   "Genji"   who   incidentally   fled   from   his   clutches.

Subsequently, many people assembled at their courtyard and a doctor

namely Tulu came to their house and declared his sister-in-law to be

dead. Thereafter, on information the local police appeared at the place

of occurrence, held inquest and took photographs of the dead body

and despatched the same for Post Mortem examination. On the next

day of the incident PW 1, the complainant lodged the written

complaint at Panskura Police Station written by his nephew Sushil

Soren under his direction, subsequently signed by him and the said

written complaint was marked as Exhibit -1 in the Court.


       PW 2 Jugal Soren stated that his sister-in-law Sarati Soren had

gone out of her house to attend nature's call when the appellant had

caught hold of her hair with one hand and stabbed on her chest with

a knife. The victim instantly cried aloud, which awakened PW 2 and

he reached the place of occurrence. He was joined by his brother Sibu
                                     5


Soren PW 1 and both of them found the victim lying on the ground

behind their courtyard. PW1 and PW 2 chased the appellant and PW 1

caught hold of his "Genji". However, the appellant managed to escape

therefrom. Both of them returned and found the victim to have died.

PW 2 identified his LTI appearing on the inquest report dated

20.04.2013 which was marked as Exhibit 2/1. During cross

examination PW 2 confirmed to have stated the incident to the

Investigating Officer on earlier occasion.


      PW 3's evidence was based on hearsay.


      PW 4 Nanda Mishra stated that his house was situated at a

distance of ½ kilometre from the house of the complainant Sibu

Soren. A commotion caused him to reach the place of occurrence and

see the deadbody of the victim in front of the house of Bablu Soren

and the complainant Sibu Soren informed him how the victim received

stab injuries and died. He saw the inquest conducted and had signed

the inquest report as a witness and his signature was marked as

Exhibit 2/2. He had further written a letter addressed to the OC of

Panskura P.S. for conducting the post mortem examination which was

marked as Exhibit 3.


      PW 5 Sk. Mujaffar Mohammad stated the victim was known to

him since she visited his house for the purpose of work. On the date

of the incident at 8-8:30 pm he visited to the house of Bablu Soren,

saw the deadbody of the victim lying on their courtyard and learnt
                                    6


from Bablu Soren that the appellant had stabbed the victim with a

knife.


         PW6 Manohar Das Rudra was the constable posted at Panskura

P.S, who went to the place of occurrence on 19.04.2013 being

informed over telephone. He reached the place of occurrence and

learnt from Bablu Soren that the victim was murdered by a person

who eventually escaped. Inquest of the deadbody was conducted in

his presence to which he was a witness. The dead body was taken by

him to the District Hospital, Tamluk for post mortem examination. He

had been the witness to the seizure of wearing apparels of the

deceased by the Investigating Officer namely Swadesh Majumdar in

connection with Panskura P.S. UD Case no. 17/13 dated 20.04.2013

corresponding to Panskura P.S. case No. 96/13 dated 20.04.2013.

The wearing apparels were labelled and the same were marked as Mat

Ext-I, II and III respectively with his signature appearing on the

seizure list dated 20.04.2013 marked as Exhibit 4/1. On interrogation

he stated the entire episode to the "Darogababu."


         PW 7 Dr. Pradip Kumar Das was posted at Purba Medinipur

District Hospital at Tamluk as Medical Officer on 20.04.2013, the date

on which he held the post mortem examination of the deadbody of the

victim in connection with the aforesaid registered case and found the

following injuries:


   1.

One lacerated injury over medial aspect of right breast about 8"

below upper margin of right shoulder measuring 5 cm.X 2cm. X

underneath rib (4th)-out surface notched-deep i.e. fracture

incomplete with periostium permanently tinged with blood. The

injury lies obliquely and mid point is 4.7 cm. From mid line chest

wall.

2. One horizontally placed lacerated injury about 7 cm. Below above

mentioned wound measuring 2.4 cm. X0.3 cm. X chest cacvity

deep (punctured wound). Through the anterior coastal space of

right 5th and 6th rib causing gutter fracture of underneath surface

of 5th rib and piercing underneath tissues causing lacerated

(penetrating) wound over midial aspect of right lung and

ultimately causing punctured wound of right heart chamber an

wide exposure of thoracic cavity made by dissection. Two half fist

like clots of blood seen in right posterior aspect of heart within

pericardial sac and another fist like clot over entrance of injury to

heart. The septum between two sided chambers remained

uninjured. The thoracic cavity filled with dark blood smearing

mopping of posterior aspect of both lungs. The injury over heart is

a little bit obligue and about 2.3 cm. Involved right sided lower

atrium and upper ventricle. The pericardial fat is also swaid with

blood. Both chambers of heart is empty except right wall which is

more with continuation of clot as cited before.

3. One lacerated injury at the base of upper half of right nipple

about 4cm. X 0.1 cm. With a fissure like blood at the wound

margin.

4. One lacerated injury over left side of abdomen 4&1/2" from mid

line and 1 cm. Above umbilicus measuring 2.5 cm. X 0.7 cm.

Subcutaneous fat deep plus piercing and left obligue muscular

internal obligue remains uninjured. On further dissection. The

wound does not penetrate the abdominal cavity.

5. One punctured wound over the junction right arm and right

lateral aspect of shoulder joint obligately placed about 4cm. X

1cm. The wound reached at subcutaneous fat deep.

6. One punctured wound over right side of wound no. 5 i.e. over

right arm and about 3.7 cm. Lateral to the said wound and

measuring about 5 cm. X 1cm. The wound reached at S.C. Fat

deep. Both 5 & 6 No. Wound having fine hair line blood marks.

On prawning the body only the wound no. 2 emits dark blood

profusely. The direction of this wound is upward, backward and

towards left.

7. One lacerated injury at the base of web space of 4th and 5th finger

of right hand measuring 1.3 cm. X 2 cm. X mussel deep.

He further deposed that the front portion of the weapon may be

sharp at both end and the cutting edge is sharp and weapon is

not heavy. The No. 5 & 6 are injuries of threatening. The 7th injury

is one of defence injury. From practical point of view all the

injuries are of same age. All the injuries having vital reaction

positive. Time of death elapsed since post mortem examination is

approximately 18 hours plus minus 2 hours.

He concluded the cause of death was the aftermath of the

lacerated injuries of the heart as aforesaid, anti mortem and homicidal

in nature. The nature of injury was supposedly caused by "a general

household knife".

PW 8 Swadesh Majumdar was posted at Panskura P.S. as SI of

Police on 20.04.2013. He deposed that one Deba Prasad Samanta

being the duty Officer of the Police Station received one complaint

from Sibu Soren. OC Biswajit Haldar initiated a case i.e. Panskura

P.S. case No. 96/13 dated 20.04.2013 under Section 302 IPC based

on the complaint of PW 1 i.e. Sibu Soren on spot. The endorsement of

the Duty Officer Deba Prasad Samanta was identified and marked as

Exhibit 1/1. The formal FIR was drawn up accordingly and PW8 was

endorsed to investigate the case which was marked as Exhibit 6 as a

whole.

Accordingly, PW 8, visited both the place of occurrences,

prepared the rough sketch map with index and the same were marked

as Exhibit 7 series and 8 series respectively. The statements of the

available witnesses were recorded under Section 161 Cr.P.C and the

inquest of the victim lying dead on the veranda of her matrimonial

home was conducted in presence of the witnesses whose signatures

were obtained on the inquest report and the said inquest report was

marked as Exhibit 2. Thereafter, the deadbody was sent for post

mortem examination through PW 6 Manohar Das Rudra. After the

completion of the post mortem examination the wearing apparels of

the deceased were seized by him under a seizure list bearing the

signature of the witness marked as Exhibit 4. The post mortem

examination report was collected on 12.05.2013. PW 8 initially failed

to apprehend the appellant who was ultimately arrested and produced

before the Ld. Court below and was sent on police remand for the

purpose of recovery of the offending weapon but in vain. He further

identified the MAT Ext. I series and the photograph of the deceased

which were marked 'X' for identification. On completion of the

investigation the chargesheet was submitted under Section 302 IPC.

Having heard the rival submissions it is imperative to assess the

evidence on record.

PW1 and PW2 corroborated each other's version to have seen

the appellant flee from the Place of Occurrence after commission of

the offence.

PW1 Sibu Soren tried to apprehend the appellant who escaped

from his grip and the said effort to intercept the appellant was

witnessed by PW 2 who had chased to capture the appellant along

with his brother PW 1 Sibu Soren but did not succeed. The Place of

Occurrence was lit with the electric light therefore, the appellant could

be easily identified by the PW 1 and PW2. PW 1 in his evidence stated

the victim went to attend nature's call at a bush. Thereafter, she cried

aloud being injured by the appellant. She reached the court yard of

PW 1 Sibu Soren and fell thereon. The credibility of his statement is

proved by the existence of an open space on the eastern side of a

bamboo bush of Bablu Soren as delineated in the rough sketch map

marked as Ext. 7. Being injured she tried to save herself from the

appellant, traversed the distance and fell on the open courtyard on the

eastern side of the house of PW1 Sibu Soren as depicted in the rough

sketch map marked as Exhibit 8.

The Ld. Advocate for the appellant contended the fact that the

miscreant to have remained at the spot for 4 minutes after committing

the crime is improbable. The post mortem report marked as Exhibit 5

revealed multiple stab injuries from time to time. The victim struggled

to free herself is evident from the opinion of PW 7 with regard to the

injury No. 7 which is categorised as "defence injury". The injury No. 5

and 6 had been "injuries of threatening". The entire episode of initial

threatening thereafter exercising private defence by the victim and the

ultimate blow of severity resulting in her death must have consumed

more than 4 minutes and therefore, the presence of the appellant at

the spot throughout the process of commission of the crime cannot

improbabilise the evidence of PW1 corroborated by PW 2. The evidence

of post occurrence witnesses i.e. PW 3, PW 4 and PW5 cannot be

disregarded as they had visited the place of occurrence and had seen

the deadbody of the victim lying on the courtyard. They had learnt the

cause of her death from the other witnesses. The nature of injuries as

enumerated in the post mortem report corroborates with the

description of the injuries by the prosecution witnesses including an

injury on the abdomen. Though the offending weapon could not be

recovered but its structure was described by the post mortem Doctor

i.e. PW 7 to be a knife and the same was corroborated by the evidence

of PW 1 and 2 that the appellant murdered the victim with the help of

a knife. The abscondence of the appellant created a strong inference

that in order to evade arrest he remained untraceable till he was

finally arrested.

Ld. Advocate for the appellant argued that the wearing apparels

were not sent for FSL examination. PW 8 during his cross-

examination stated he did not send the wearing apparels of the

deceased to FSL for medical examination though he had seized the

wearing apparels of the deceased marked as MAT Ext. 1 series. In

case of negligence on the part of the Investigating Agency or omission

thereof resulting in defective investigation it is incumbent upon the

Court to circumspect the evidence evaluating the same in such a

manner that the grave irregularities can be mitigated.

In the decision cited in The State of Rajasthan vs. Kishore

1the Hon'ble Supreme Court observed that:

"It is equally true that the investigating officer PW.8 committed

grave irregularity in omitting to send the burnt clothes and other

incriminating material for chemical examination to lend corroboration to

the evidence. Mere fact that the Investigating Officer committed

irregularity or illegality during the course of the investigation would not

1 (1996) SCC(Cri) 646

and does not cast doubt on the prosecution case not trustworthy and

reliable evidence can be set aside to record acquittal on that account."

In Amar Singh vs. Balwinder Singh 2and Sambhu alias

Bijoy Das and another vs. State of Assam,3 it has been further

observed by the Hon'ble Supreme Court that,

"if the prosecution case is established by the evidence adduced, any failure or omission on the part of the Investigating Officer cannot render the case of the prosecution doubtful."

Minor contradictions in the evidence of the prosecution

witnesses are negligible in presence of strong corroborating evidence

to establish the commission of the crime. In case of corroboration by

the ocular witnesses as well as the medical evidence the non recovery

of the offending weapon will not be fatal to discredit the case of the

prosecution.

In the case of Mekala Sivaiah vs. The State of Andhra

Pradesh (Criminal Apeal No. 2016 of 2013) the Hon'ble Apex Court

observed as follows:

24. ..

ii. When there is ample ocular evidence corroborated by medical evidence, mere non-recovery of weapon from the appellant would not materially affect the case of the prosecution.

iii. if the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and

2 AIR (2003) SC 1164

AIR (2010) SC 3300

rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony.

In the case of State of U.P. Vs. Kishanpal & Ors.,4 the Hon'ble Supreme Court observed that:

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

PW 1 and PW2 had conjointly witnessed the appellant at the

place of occurrence and chased him, however, failed to captivate him.

The presence of the appellant at the place of occurrence and being

successful to release himself from the clutches of PW 1 amply justifies

the testimony of the eye witnesses credible corroborated by the

medical report. Accordingly, to substantiate the motive to commit the

offence becomes nugatory.

In my opinion the prosecution has been successful in

establishing its case.

(2008) 16 SCC 73

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

sentence of the appellant.