Calcutta High Court (Appellete Side)
Manasha Mal & Anr vs The State Of West Bengal & Anr on 12 April, 2023
1
CRA (DB) 75 of 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA (DB) 75 of 2022
With
IA No.:CRAN 1 of 2022
Manasha Mal & Anr.
Vs.
The State of West Bengal & Anr.
For the Appellants :Mr. Ayan Bhattacharjee
Mr. Kunal Ganguly
Mr. Tirupati Mukherjee
Ms. Jenifar Alam
Ms. Sanchari Chakraborty
For the State : Mr. Saibal Bapuli, Ld. APP
Mr. Bibaswan Bhattacharya
Heard on : April 12, 2023
Judgment on : April 12, 2023
DEBANGSU BASAK, J.:-
1.
The appeal is directed against the judgment of conviction
dated March 31, 2022 and the order of sentence dated April 1,
2022 passed by the learned Additional Sessions Judge, Fast
CRA (DB) 75 of 2022
Track Court, Suri, Birbhum in Sessions Trial
No.02/January/2017 arising out of Sessions Case No.86 of
2016.
2. By the impugned judgment of conviction, the learned
Judge found the appellants guilty of offence punishable under
Sections 302/148/149 of the Indian Penal Code, 1860. By the
impugned order of sentence, the learned Judge sentenced the
appellants to life imprisonment for the offence punishable
under Sections 302/149 of the Indian Penal Code, 1860 and
to pay a fine of Rs.50,000/- each and in default to undergo
further imprisonment for six months. The learned Judge
awarded simple imprisonment for one year to the appellants
for the offence punishable under Section 148 of the Indian
Penal Code, 1860. Both the sentences were directed to run
concurrently.
3. Police received a written complaint from prosecution
witness (P.W.) 1 on April 13, 2014 regarding murder of her
husband. On the basis of such written complaint, police
registered Sainthia Police Station FIR No.94/14 dated April 13,
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2014 under Sections 147/148/149/302 of the Indian Penal
Code, 1860.
4. Police submitted charge sheet against the appellants and
three other persons on November 14, 2014. Two of the
accused were found to be juvenile and sent to the Juvenile
Justice Board. Court framed charges as against the two
appellants and one person on January 24, 2017. The
appellants and the third person pleaded not guilty and
claimed to be tried. During trial one accused expired on July
31, 2020.
5. At the trial, the case of the prosecution was that, the
appellants along with three others murdered the victim, who
was the husband of P.W.1, on April 12, 2014 at about 10 p.m.
in front of the house of the victim. The appellants along with
three others were members of an unlawful assembly,
committed an offence of rioting with deadly weapons, acted in
prosecution of common object of murdering the victim.
6. At the trial, prosecution examined seventeen witnesses
and relied upon various documentary and material evidences
to bring home the charges as against the appellants. On
CRA (DB) 75 of 2022
conclusion of the evidences of the prosecution, the appellants
were examined under Section 313 of the Code of Criminal
Procedure, 1973 where the appellants pleaded not guilty and
falsely implicated.
7. Learned Advocate appearing for the appellants submits
that, the prosecution was unable to prove the charges beyond
reasonable doubt. He submits that, the so-called eye-
witnesses are relatives of the victim. He refers to the oral
testimonies of the prosecution witnesses. He contends that,
there were embellishment in the oral testimonies of the
prosecution witnesses.
8. Learned Advocate appearing for the appellants draws the
attention of the Court to the contents of the written complaint
and the deposition of the maker of such written complaint
being P.W.1. According to him, P.W.1 claimed to be an eye-
witness for the first time in Court. Such claim did not appear
in the written complaint.
9. Learned Advocate appearing for the appellants submits
that, the P.W.6 who claimed himself to be another eye-witness
CRA (DB) 75 of 2022
is a chance witness. According to him, testimony of a chance
witness should not be readily accepted.
10. Referring to the versions of the incident given by P.W.1,
P.W.3 and P.W.6, learned Advocate appearing for the
appellants submits that, there were major discrepancies in
their statements. According to him, the versions of the
incident are different.
11. Learned Advocate appearing for the appellants submits
that, the weapons of assault were not recovered. No opinion
was obtained from the post-mortem doctor as to the cause of
death through the alleged weapons of assault.
12. Learned Advocate appearing for the appellants submits
that, the post-mortem doctor in his testimony never opined
that the injuries were sufficient to cause death in the ordinary
course of nature. Consequently, according to him, the
prosecution was unable to prove the charges as against the
appellants beyond reasonable doubt.
13. Learned Advocate appearing for the State submits that,
all the charges as against the appellants stood conclusively
proved by the prosecution. He refers to the evidence of the
CRA (DB) 75 of 2022
prosecution witnesses. He submits that, three eye-witnesses
saw the incident of murder. There were no discrepancies in
the versions given by such eye-witnesses, namely, P.W.1,
P.W.3 and P.W.6. He refers to the oral testimony of post-
occurrence eye-witnesses, namely, P.W.4 and P.W.8. He
submits that, the oral testimonies of such prosecution
witnesses taken together would conclusively establish the
charges as against the appellants beyond reasonable doubt.
14. The wife of the victim deposed as P.W.1. She stated that,
the victim was murdered on April 12, 2014 at about 10 p.m. in
the night. She was present in her house. At that time, the
victim was returning home from work. The victim used to
return home every day by that time. On April 12, 2014 at
about 10 p.m. when the victim was returning home, the
appellants along with three others attacked the victim in front
of her house and assaulted him. She identified the two
appellants along with the deceased accused in Court. She
stated that, the two other assailants were not present in
Court. She stated that, five persons assaulted the victim with
bamboo, lathi and sharp-cutting weapon. The victim tried to
CRA (DB) 75 of 2022
escape from the hands of the assailants. The assailants
chased the victim and assaulted him in front of the house of
Kanai Mal where the victim fell down after sustaining bleeding
injuries. She described the injuries suffered by the victim.
She stated that, she raised a hue and cry and called the local
people. When the local people came to the spot, the assailants
fled away from the spot. The victim died on the spot.
15. P.W.1 stated that, she informed the incident to the
Sainthia Police Station at about 12 midnight on the date of the
incident. After receiving information of the incident, police
came to the spot and held inquest over the dead body of the
victim at the place of occurrence. Police prepared an inquest
report in her presence which she signed as a witness. She
identified her signature on the inquest report. The inquest
report was tendered in evidence and marked as Exhibit-1/1.
16. P.W.1 stated that, police seized various articles at the
spot. She identified her signature on the seizure list dated
April 13, 2014 which was tendered in evidence and marked as
Exhibit-2/1. She lodged the written complaint with the police.
CRA (DB) 75 of 2022
She stated that, the complaint was written by P.W.2 under her
instruction and statement. She signed the complaint after the
contents were read over to her by P.W.2. She identified her
signature on the written complaint which was tendered in
evidence and marked as Exhibit-3/1. She signed the labels of
the various articles seized by the police which was tendered in
evidence and marked as Exhibit-4/1 and Exhibit-5/1. She
recorded her statement under Section 164 of the Code of
Criminal Procedure which was tendered in evidence and
marked as Exhibit-6.
17. A co-villager deposed as P.W. 2. He stated that, he wrote
the written complaint as per the instruction and statement of
P.W. 1. After writing the complaint, he read over the contents
to P.W. 1 and then P.W. 1 signed the complaint. Thereafter,
she signed the complaint as a scribe there of. The written
complaint was tendered in evidence and marked as exhibit 3.
P.W. 2 also witnessed the seizures made on April 13, 2014.
He identified his signature on such seizure list, which was
marked as exhibit 2/2. He was also one of the witnesses to
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the inquest. He identified his signature on the inquest report,
which was marked as exhibit 1/ 2.
18. The son of the victim deposed as P.W. 3. He stated that,
the incident took place at about 10 p.m. in the night in front of
their house. At that time, he was in his house. At the time of
the incident, the victim was returning from the mill where, he
was working. After hearing a hue and cry from outside of their
house, he and P.W. 1 came out of the house and saw five
assailants assaulting the victim by sharp cutting weapon, rods
and wooden sticks. He identified the three adults including
the two appellants herein, who were being proceeded against
before the trial Court. He stated that, after seeing the assault
on the victim, they raised alarm for help when local people
rushed to the spot. The assailants fled away from the spot.
Then they went in front of the house of Kanai Mal and saw
profuse bleeding was taking place from the head, neck and
different parts of the body of the victim and he was lying dead
thereat. Thereafter, P.W. 1 informed the incident to the police
over phone.
CRA (DB) 75 of 2022
19. A resident of the village deposed as P.W. 4. He stated
that, on April 12, 2014 at about 10.30/11 p.m. in the night he
was sleeping in his house after returning from work. He heard
a hue and cry and also heard the screams of P.W. 1. P.W. 1
was screaming 'murder murder'. After hearing such screams
of P.W. 1, he and other neighbours rushed to the spot where,
the victim was lying dead. In the vicinity of the place, there
were houses of other villagers. After reaching the spot, he saw
the bleeding injuries on the neck, left jaw and cheek of the
victim. He also saw the accused persons were fleeing from the
spot. During investigation, he recorded his statement before
the Magistrate. Such statement was tendered in evidence and
marked as exhibit 7. He is the witness of the seizure made by
the police on April 15, 2014. The signature on such seizure
list was tendered in evidence and marked as exhibit 8/1. He
stated that, he noticed one sharp cutting weapon, one wooden
stick and one sickle in the banana groves and informed the
same to the police and the police seize such articles. He
signed the labels of such seized articles, which he identified in
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Court. His signature thereon was tendered in evidence and
marked as exhibits 9/1, 9A/1 and 9B/2.
20. A post occurrence witness deposed as P.W. 5. He stated
that, on April 12, 2014, he was returning home at about
11/11.30 p.m. and at that time he saw that the police lifting
the dead body of the victim. He is the seizure list witness of
the seizures made on April 14, 2014. He identified such
signatures on the seizure list, which was marked as exhibit
8/2. He identified the signature on the labels of the articles
seized.
21. P.W. 6 is a resident of the village. He stated that, the
incident took place on April 12, 2014 at about 10.30 to 11
p.m. in night. At that time, he was in his house. He heard a
hue and cry from outside and came out of his house and saw
in the light of lamp post that appellant no. 2 struck the victim
on his head with a piercing instrument (Gujpata) and due to
such assault, the victim fell down on the ground. Then the
local people, he and other neighbours rushed to the spot.
They saw the assailants to be fleeing away. He saw Netai Mal
was wielding a sickle in his hand and other assailants namely,
CRA (DB) 75 of 2022
Manasha Mal, Hari Mal and Gour Mal were wielding wooden
sticks in their hands. He identified Haricharan, Manasha and
Santosh Mal in Court.
22. P.W. 6 stated that, after reaching the spot, he saw the
victim to sustain the bleeding injuries on his right side of
neck, head and left side of jaw. He stated that, after 20-25
days, police came to the village along with appellant no. 2 and
recovered one sharp cutting weapon, one bamboo stick from
the bamboo groves near the bank of the tank. Police seized
such articles and prepared the seizure list which he signed.
He identified his signature dated May 5, 2014, which was
marked as exhibit 10/1. He identified his signature on the
label of the articles seized. He recorded her statement under
Section 164 of the Code of Criminal Procedure, which was
tendered in evidence and marked as exhibit 12.
23. The father of the victim deposed as P.W. 7. He stated
that, at the time of the incident, his daughter-in-law came to
him and informed him that the victim was murdered. He went
to the spot and saw the dead body of his son. He signed the
seizure list. He identified his signature on the seizure list
CRA (DB) 75 of 2022
dated May 5, 2014 as well as the labels of the articles seized
on that date.
24. The younger brother of the victim deposed as P.W. 8. He
stated that, the victim was murdered on April 12, 2014 at
about 10/10.30 p.m. in night. At that time, he was in the
house. P.W. 1 was rushing and crying that her husband was
being murdered. After hearing the cries of P.W. 1, he rushed
to the place of occurrence and saw the appellants and three
others being armed with sharp cutting weapon, piercing
weapon, rod and wooden stick to be standing thereat and the
victim lying at a distance of 20-25 cubits from them. When
the accused persons saw them, the accused persons fled away
from the spot. After reaching the place of occurrence, he saw
the victim lying dead on the ground. Thereafter, P.W. 1 lodged
the complaint with the police. He identified the two appellants
in Court. He identified his signature in the inquest report as
also on the seizure list dated April 13, 2014.
25. A resident of the village deposed as P.W. 9. He did not
see the incident of murder. He rushed to the place of
occurrence after hearing the hue and cry. He saw the victim
CRA (DB) 75 of 2022
lying dead on the ground. He identified his signature in the
inquest report as also on the seizure list.
26. A seizure list witness of the seizure made on April 15,
2014 deposed as P.W. 10. He did not add any value to the
case of the prosecution excepting identifying his signature on
the seizure list. Cross-examination was declined.
27. A co-villager deposed as P.W. 11. He identified the
appellants in Court. However, he went on to say that he heard
about the murder.
28. The doctor, who conducted the post mortem on the dead
body of the victim deposed as P.W. 12. He tendered the post
mortem report, which was marked as exhibit 13. He described
the injuries he found on the dead body of the victim during
post mortem.
29. The photographer, who was requisitioned by the police on
April 13, 2014 deposed as P.W. 13. He took photographs of
the dead body. The photographs taken by P.W. 13 were
marked as material exhibits I to V. His signature in the
seizure list was marked as exhibit 14.
CRA (DB) 75 of 2022
30. A Sub-Inspector of Police, who witnessed the seizure
made on May 18, 2014 deposed as P.W. 14. His signature on
such seizure list was tendered in evidence and marked as
exhibit 14/1.
31. The police constable, who brought the dead of the victim
along with all relevant papers to the morgue for post mortem
deposed as P.W. 15.
32. The police personnel, who witnessed the seizure on April
13, 2014 deposed as P.W 16. His signature was marked as
exhibit 15.
33. The Investigating Officer deposed as P.W. 17. He
narrated about the course of investigations. He stated about
the arrest made by him. He also stated that various articles
were seized on the accused pointing out the same. He
submitted charge-sheet.
34. As noted above, on conclusion of the evidence of the
prosecution, the appellants were examined under Section 313
of the Code of Criminal Procedure where they claimed to be
innocent and falsely implicated. They declined to adduce any
evidence in defence.
CRA (DB) 75 of 2022
35. Dead body of the victim was found on April 12, 2014.
P.Ws. 1, 3 and 6 witnessed the assault on the victim by five
persons. All five persons were named by P.Ws. 1, 3 and 6.
According to P.Ws. 1, 3 and 6, the victim was assaulted by a
piercing instrument, sharp cutting weapon, rod and wooden
stick. Exhibit 13 is the post mortem report of the victim which
notes the injuries on the dead body of the victim. The injuries
noted in exhibit 13 corroborates the nature of assault spoken
of by P.Ws. 1, 3 and 6 in their oral testimonies.
36. It is contended on behalf of the appellants that, the
version of the incident given by P.Ws. 1, 3 and 6 are different.
With respect, we are unable to accept such contention. The
oral depositions of P.Ws. 1, 3 and 6 speaks of assault on the
victim by five persons by using the instruments of assault as
noted above. The injuries on the dead body of the victim is
commensurate with the nature of assault spoken of by P.Ws.
1, 3 and 6. P.Ws. 1, 3 and 6 used different words to describe
the same incident of assault. Therefore, we are not in a
position to accept the contention of the appellants that, there
are embellishments in the testimonies of such witnesses.
CRA (DB) 75 of 2022
37. P.W. 1 lodged the written complaint being exhibit 1. It is
trite law that the written complaint need not be an
encyclopaedia of evidence. Exhibit 1 discloses the incident of
assault resulting in the murder of the victim. The assailants
are named in exhibit 1. In her oral testimony, P.W. 1 stated
that she is an eye witness of the incident. The fact that the
P.W. 1 is an eye witness of the incident stands corroborated by
the evidence of P.Ws. 3 and 6. In fact, post occurrence eye
witnesses being P.Ws. 4 and 8 corroborate the presence of
P.W. 1 at the time of the incident.
38. Inquest of the dead body of the victim was held at the
place of occurrence itself. Post mortem of the dead body of the
victim was conducted by P.W. 12. Eye witnesses saw the
assault on the victim. Victim died on the spot.
39. Therefore, in our view, absence of any statement of P.W.
12 that, the injuries were the cause of the death is not fatal to
the case of the prosecution. The fact that, the offending
weapons were not shown to P.W. 12 and his opinion not
sought for with regard thereto was not fatal to the case of the
prosecution.
CRA (DB) 75 of 2022
40. When the police case was started, five persons were
named as the assailants. Factum of five persons assaulting
the victim was established at the trial. Two were found to be
juvenile and sent to the Juvenile Justice Board. One died
during the trial. Two were convicted. Therefore, ingredients of
Section 149 of the Indian Penal Code, 1860 stood satisfied.
41. Prosecution was able to, therefore, establish all the
ingredients of Sections 302/148/149 of the Indian Penal Code,
1860 as against the appellants before us.
42. We, therefore, find no ground to interfere with the
impugned judgement of conviction and order of sentence. The
impugned judgement of conviction and order of sentence are
affirmed.
43. CRA (DB) 75 of 2022 is dismissed.
44. In view of the dismissal of the appeal, nothing survives in
the interim application. CRAN 1 of 2022 is also dismissed.
45. Period of detention suffered by the appellants pre-trial,
during the trial and post trial be set off against the sentences
awarded. The sentences shall run concurrently.
CRA (DB) 75 of 2022
46. A copy of this judgement and order along with trial Court
records be transmitted to the appropriate Court forthwith for
necessary action.
47. Urgent photostat certified copy of this judgment be given
to the parties expeditiously, if applied for.
(Debangsu Basak,J.)
48. I Agree.
(Md. Shabbar Rashidi, J.)
AD/KC
