Calcutta High Court (Appellete Side)
Subrata Ghosh vs The State Of West Bengal on 18 April, 2023
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 86 of 2020
Subrata Ghosh........ Appellant (in jail)
Versus
The State of West Bengal
For the appellant : Mr. Apalak Basu, Adv.
: Ms. Pritha Bhaumik, Adv.
For the State : Mr. Rudradipta Nandy, ld. APP.
: Mrs. Sonali Das, Adv.
Hearing concluded on : March 21, 2023
Judgment on : April 18, 2023
Md. Shabbar Rashidi, J.
1. The appeal is directed against the judgment of
conviction dated December 21, 2019 and order of
sentence dated December 24, 2019, passed by the
learned Special Court under Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act, 1989, 1st
Court, Suri, Birbhum in Spl (A) 02 of 2013.
2. By the impugned judgment of conviction and order
of sentence, learned Trial Court convicted the appellant
for the offences punishable under Sections
324/307/302/458 of the Indian Penal Code, 1860 and
sentenced him to suffer rigorous imprisonment for a term
of 3 years and to pay a fine of Rs. 2000/- and in default of
payment of the fine to undergo rigorous imprisonment for
a further period of 6 months for the offence punishable
under Section 324 of the Indian Penal Code, 1860.
3. He was further sentenced to undergo rigorous
imprisonment for 10 years and fine of ₹. 4000/- and in
default of payment of fine to suffer rigorous
imprisonment for further one year for the offence
punishable under Section 307 of the Indian Penal Code,
1860.
4. The appellant was further sentenced to rigorous
imprisonment for 10 years and fine of Rs. 4000/- and in
default of payment of fine to suffer rigorous
imprisonment for further one year for the offence
punishable under Section 458 of the Indian Penal Code.
5. The appellant was also sentenced to suffer rigorous
imprisonment for life and fine of Rs. 10,000/- and in
default of payment of fine to suffer rigorous
imprisonment for another period of two years for the
offence punishable under Section 302 of the Indian Penal
Code,1860. All sentences were directed to run
concurrently.
6. The appellant was, however, found not guilty and
acquitted of the offences punishable under Sections
459/326 of the Indian Penal Code, 1860 and Section 3
(2) of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
7. One Tapan Ghosh lodged a written complaint with
the officer in charge Sainthia police station to the effect
that he was a permanent resident of Bolpur Mission
compound. His native home was at Konarpur within
Sainthia police station. He had appointed one Bhutnath
Tudu to look after his ancestral properties. It was further
stated in the written complaint that on October 26, 2012,
in the night, Bhutnath Tudu and his wife Dulo Tudu
were sleeping in his house at about 10.30 in the night. At
that time, Subrata Ghosh entered into the house jumping
over the boundary wall with criminal conspiracy and
dragged Dulo. When Bhutnath went to rescue her,
hearing her screams, Subrata assaulted him with a
sharp cutting weapon (Bogi) on Bhutnath's neck. Subrata
assaulted Dulo Tudu in a scattered manner after
Bhutnath fell on the ground in bleeding condition.
Thereafter Subrata fled away.
8. The villagers took both Bhutnath and Dulo to
Bolpur subdivisional hospital finding them with bleeding
injuries. Dulo succumbed to her injuries. The written
complaint also disclosed that Subrata Ghosh was teasing
and giving illicit proposals to Dulo Tudu during the
immersion of the Idol and there was an altercation
between him and Bhutnath. The de facto complainant
visited Bolpur Sub-divisional Hospital and lodged the
written complaint after having talks with the villagers
and Bhutnath.
9. On the basis of such written complaint Sainthia PS
case No. 134/12 dated October 27, 2012 under Sections
302/307 of the Indian Penal Code, 1860 and Section
3(2)(v) of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, was started against the
appellant.
10. The police took up the investigation and on
completion of such investigation, submitted a charge
sheet against the appellant on December 21, 2012.
Accordingly, charges under Sections
458/459/324/326/307/302 of the Indian Penal Code,
1860 and Section 3(2)(v) of the Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act, 1989 were
framed against the appellant on March 18, 2013. The
appellant pleaded not guilty to the charges and claimed
to be tried. He was put on trial.
11. At the trial, in order to prove the charges,
prosecution examined 34 witnesses in all. In addition,
the prosecution also relied upon certain documentary as
well as material evidences. On conclusion of the evidence
of the prosecution, the appellant was examined under
Section 313 of the Criminal Procedure Code. At such
examination, the appellant was confronted with the
evidences proving the circumstances appearing against
him. The appellant pleaded innocence and claimed to
have been falsely implicated. He, however, declined to
adduce any defense witness.
12. Learned advocate for the appellant submitted at the
time of advancing argument that the First Information
Report which was the basis of this instant case was
second in point of time. Referring to the evidence of PW6,
it was contended that the police visited the scene of
occurrence in the night and noted down whatever was
narrated to him. The said writing which ought to have
been treated as the first information was never brought
forth by the prosecution.
13. Learned advocate for the appellant has also
submitted that the alleged offending weapon was seized
as per the leading statement of the appellant and it was
sent for chemical examination but the same was never
produced at the trial. Moreover, questions have been
raised regarding the integrity of recording of alleged
statement leading to recovery of offending weapon. At
least two of the witnesses to such recovery were not
examined making the recovery itself untrustworthy. It
was also contended that neither the offending weapon
nor the Forensic Science Laboratory Report with regard
to the alleged seized offending weapon were produced at
the trial. The autopsy doctor was also not confronted
with the offending weapon. Such circumstances,
according to the learned advocate for the appellant, cast
a serious shadow of doubt over the veracity of the
prosecution case.
14. Learned advocate for the appellant also submitted
that the prosecution has also not proved any motive
behind such incident.
15. Besides, learned advocate for the appellant has also
referred to certain contradictions in the testimonies of the
prosecution witnesses with regard to the narration of the
incident claiming the same to be vital contradictions
vitiating the prosecution case.
16. Learned advocate for the appellant has relied upon
the ratio laid down in the case reported in (2023) 1 SCC
83 (Rahul Vs. State of Delhi, Ministry of Home Affairs
and Another).
17. On the other hand, learned advocate for the State
has submitted that the prosecution has proved the
charges beyond all reasonable doubts with the help of
convincing evidence led at the trial. The prosecution
witnesses have supported the case of the prosecution as
set out in the First Information Report and the same is
duly testified by the medical evidence. Therefore, the
charges leveled against the appellant stood proved. It is
submitted that learned Trial Court rightly convicted the
appellant, and the impugned judgment of conviction and
order of sentence does not warrant any interference.
18. As noted above, in order to bring home the charges
leveled against the appellant, the prosecution examined
34 witnesses in all.
19. The de facto complainant himself deposed as PW 1.
He identified the appellant in Court. He stated in his
deposition that owing to his job, he used to reside at
Bolpur mission compound, though he was a resident of
village Konarpur under Sainthia PS. His house and his
native village used to be looked after by Bhutnath Tudu
and his wife Dulo Tudu. They used to reside in the house
of the complainant and looked after his cultivation.
20. He further stated that on October 26, 2012 at about
10:30 p.m., Dulo Tudu was murdered by the appellant.
He stated that on October 26, 2012, after completion of
the immersion of Maa Durga Idol in the village, when
Bhutnath Tudu and Dulo Tudu were returning to their
house, the appellant inflicted torture upon Dulo Tudu.
The appellant ill-behaved with her and tried to take her
away holding her hands. Bhutnath Tudu raised objection
whereupon the appellant left the place threatening them
to take revenge. PW 1 also stated that when Bhutnath
Tudu and Dulo Tudu were sleeping in the veranda, the
appellant entered into the house by scaling the boundary
wall and silently embraced Dulo Tudu. She raised alarm
due to which Bhutnath Tudu woke up. At that time, the
appellant assaulted Bhutnath by a sharp boogie on his
neck. He fell down with bleeding injuries. Thereafter, the
appellant assaulted Dulo Tudu with a sharp cutting
boogie causing serious injuries on her person. Upon
hearing the sound, villagers assembled and found the
injured persons in bleeding condition. Seeing the
villagers assemble, the appellant fled away.
21. PW 1 also stated that the incident was informed by
the villagers to the local police outpost and the victims
were taken to hospital by an ambulance. PW 1 also went
to hospital by his side and came to know that Dulo Tudu
was brought dead whereas Bhutnath Tudu was seriously
injured on his neck. On his enquiry, Bhutnath Tudu
narrated the incident before PW 1 regarding the assault
by the appellant. He further stated that Bhutnath Tudu
was treated in the hospital whereas the dead body of
Dulo Tudu was sent for post-mortem examination at
Bolpur sub-divisional hospital. PW 1 returned to his
house with Bhutnath Tudu and his children. PW 1
accompanied by Bhutnath Tudu went to the police
station on the following morning and lodged the written
complaint written by Biswanath Mandal. PW 1 tendered
the written complaint which was marked as Exhibit 1
and his signature on the written complaint was marked
as Exhibit 1/1.
22. In his cross-examination, PW 1 stated that he was
informed of the incident over telephone by his cousin
brother Tarun Ghosh to the effect that Bhutnath Tudu
and Dulo Tudu were injured by the appellant by a sharp
cutting boogie. He also stated that when he reached
hospital, Bhutnath Tudu was in a position to speak and
he narrated the incident before him. From the hospital,
he took Bhutnath Tudu and his children and returned to
the village at about 01. 50 hours and on the following
morning, he lodged the written complaint which was
written in the police station itself.
23. The brother-in-law of PW 1 was examined as PW 2.
He was the scribe of the written complaint. He stated that
he wrote the written complaint as per the instructions of
PW 1 and, thereafter, he read over and explained the
contents thereof to PW1. Thereafter, the written
complaint was signed by PW1 and PW 2.
24. The injured victim Bhutnath Tudu deposed as PW
3. He stated that he used to reside in the house of PW 1
at Konarpur village for 12/14 years and looked after his
landed properties. The owner used to reside at Bolpur.
He identified the appellant in Court. PW3 also stated that
the incident took place on the day of immersion of Ma
Durga Idol at about 10/10:30 PM. He has stated that in
the evening on the day of incident, he along with his wife
was returning home after immersion of Durga Idol. The
appellant caught hold of the hands of his wife and tried
to take her in the field. There was an altercation between
him and the appellant over the issue and thereafter, the
appellant threatened him to see afterwards and to
murder him. In the night, at about 10/10:30 p.m., the
appellant scaled up the boundary wall of their house with
a boogie. PW 3 stated that he tried to hold the hands of
the appellant but failed. The appellant assaulted him
with a boogie (sharp cutting weapon) on the left side of
his neck. Being injured, he raised alarm whereupon his
wife came there and tried to restrain the appellant. He
also went to bring a Lathi in order to restrain the
appellant. At that time, the appellant started chopping
his wife with the boogie (sharp cutting weapon) due to
which she sustained severe bleeding injuries specifically
on the left side of her head, neck and hand. PW3 rushed
to the house of Swapan Mal and Tarun Ghosh. The
aforesaid persons along with others came to the house of
PW3 whereupon the appellant fled away. He also stated
that he became unconscious and regained his senses at
Bolpur Sian hospital where he remained under treatment
for three days. PW3 has stated that he was not in a
position to put up his neck straight even on the date of
his deposition. His wife died on the spot on the date of
incident itself.
25. In his cross-examination, PW3 has stated that when
he met PW1 in the hospital, he was conscious. He also
stated to have narrated the incident to the attending
doctor after regaining his senses, though he was not in a
position to state the exact time when he narrated the
incident to the Doctor. In his cross-examination, PW3
categorically stated to have talked to PW1 regarding
incident. He further stated that when the appellant
entered into his house, he was standing in the veranda
and he instantly caught hold of his hands but the
appellant instantly pierced the boogie on the left side of
his neck. He also stated that he did not fall down being
injured, rather he went to bring a Lathi and when he
returned from the room with lathi, he saw the appellant
chopping his wife with the boogie. In his cross-
examination, PW3 also stated that on the date of
incident, he was once taken to Ahmadpur police outpost
in the morning of October 27, 2012 from the hospital and
thereafter, he was again admitted in the hospital. He
further stated that he also recorded his statement before
the learned Magistrate. He also tendered his caste
certificate which was marked as Exhibit 12.
26. A villager of the appellant and the victims was
examined as PW 4. He identified the appellant in Court.
He stated that Bhutnath Tudu used to reside in the
house of PW1. He further stated that he heard from
Bhutnath Tudu that Dulo Tudu was murdered by the
appellant. He further stated that on the day of immersion
of Durga idol, at about 10.30/11 pm, when he was
sleeping, he heard a hue and cry and went to the house
of PW1 where many people were assembled talking about
Bhutnath Tudu and Dulo Tudu. At that time, Bhutnath
Tudu was already taken to hospital. In the following
morning at about 9:30 am, PW 4 accompanied by 20/25
persons went to the house of Bhutnath and found him
lying on his bed with injuries on his neck. On enquiry,
Bhutnath Tudu narrated that the appellant was pulling
the hand of his wife while returning home from
immersion of Durga Idol for which an altercation took
place. In the night, the appellant entered into the house
of Bhutnath by jumping down from the mango tree and
assaulted Bhutnath with a boogie and when Bhutnath
Tudu went inside the room to bring the lathi, the
appellant chopped Dulo Tudu by the boogie. PW 4 also
stated that on the following morning at about 11.30/12
a.m., police visited the village and collected blood stained
earth under a seizure list. PW 4 proved his signature on
the seizure list which was marked Exhibit 2/1.
27. Another villager deposed as PW 5. He also identified
the appellant in Court. He also testified the incident as
stated in the written complaint. However, PW5 is a
hearsay witness. He narrated the incident as heard from
the husband of the victim Dulo Tudu. He has stated that
on the day of immersion of Durga idol at around 11 PM,
he heard some hue and cry in his neighbourhood. He
rushed there and found people rushing to the house of
Bhutnath Tudu. Going there, he found Dulo Tudu lying
down near khalpar with bleeding injuries which was
situated just inside the door of the house of Bhutnath
Tudu. He also found Bhutnath Tudu shouting for help.
Bhutnath Tudu along with Dulo Tudu, their son and
nephew went to hospital at Bolpur by an ambulance.
PW5 was interrogated by police on the next day. In his
cross-examination, PW5 stated that Bhutnath Tudu
came to his house calling him by his name and
thereafter, he went to call other persons as well. He,
however, could not say who among the villagers,
informed the police.
28. Another villager has deposed as PW6. He also
identified the appellant in Court. He has stated that
Bhutnath Tudu used to reside at the house of PW1 for
10/12 years and that Dulo Tudu was murdered. PW6
has deposed in line with PW 5. He has also stated that on
the day of immersion of the idol at around 11 PM in the
night, he heard a hue and cry in the neighbouring place
and rushed there too. Reaching at the house of Bhutnath
Tudu, he found Dulo Tudu lying on the ground near
khalpar with bleeding injuries which was situated just
inside the door of the house of Bhutnath. He also found
Bhutnath Tudu shouting for help. Many villagers came
there and informed the police at Ahmadpur outpost.
Thereafter, Bhutnath Tudu with his son and nephew
went to hospital by an ambulance. PW 6 also stated that
on the following morning at about 11 AM, police collected
blood stained earth from the house of Bhutnath under a
seizure list. He proved his signature on the seizure list
which was marked as Exhibit 2/2. He was also cross-
examined at length.
29. A similar statement to that of PW 5 and PW 6 was
made by a co-villager who deposed as PW7. He also
rushed to the house of Bhutnath Tudu in the night at
about 11 PM on the day of immersion of Durga idol and
found Dulo Tudu lying with bleeding injuries near
khalpar. He was also interrogated by the police at 11 AM
on the following morning. He also testified that the police
collected blood stained earth from the house of Bhutnath
Tudu.
30. Another villager deposed as PW8. He has also stated
that Bhutnath Tudu used to reside at the house of PW 1.
He has also testified that on the date of immersion of
Maa Durga idol at around 11/11:30 PM, upon hearing
the hue and cry, he went to the house of Bhutnath Tudu
along with other villagers. He came to know that the
appellant murdered Dulo Tudu, by chopping. He went to
the village Palasdanga to bring the children of Bhutnath
Tudu. On return, he saw an ambulance by which
Bhutnath Tudu and Dulo Tudu were taken to hospital.
31. Another villager has deposed as PW9. He has stated
that the landed properties of PW 1 used to be looked after
by Bhutnath Tudu who used to reside in the house of
PW1 with his wife for more than 10 years. PW9 identified
the appellant in Court. He also stated that on the day of
immersion of Maa Durga idol at around 11/11:30 PM
upon hearing hue and cry he rushed to the house of
Bhutnath Tudu and came to know from him that the
appellant chopped his wife Dulo Tudu. He also saw Dulo
Tudu lying with bleeding injuries near Kaltala which was
situated just after entering the main door. He also saw
injuries on the left arm of Dulo Tudu whereas the
injuries on the neck of Bhutnath Tudu were covered with
a Gamcha. He also accompanied PW 8 to Palasdanga
village to bring the children of Bhutnath Tudu. He was
interrogated by police on the following morning.
32. Another villager was examined as PW 10. He
identified the appellant in Court. He further stated that
PW 1 had landed properties at village Konarpur which
were looked after by Bhutnath Tudu who used to reside
in the house of PW1. He further stated that on the day of
immersion of Durga idol at about 11/11:30 PM upon
hearing hue and cry, he rushed to the house of Bhutnath
and heard from him that the appellant murdered his wife
by chopping. Thereafter, an ambulance and police came
there and took away Bhutnath Tudu and his wife to the
hospital. Police visited the village on the following
morning.
33. Another villager from Konarpur village deposed as
PW 11. This witness also stated that the landed
properties of PW1 used to be looked after by Bhutnath
Tudu. Bhutnath Tudu and his wife used to reside in the
house of PW1. This witness has also stated that on the
day of immersion of Maa Durga idol at around 11/11:30
PM, upon hearing a hue and cry, he rushed to the house
of Bhutnath and heard from him that the appellant
chopped his wife Dulo Tudu. He saw Dulo Tudu lying
near khalpar in bleeding condition with injuries on her
left arm, he also saw Bhutnath Tudu's neck surrounded
by a Gamcha. On the following morning, he was
interrogated by police.
34. One of the sons of the victim has deposed as PW 12.
He identified the appellant in Court. He also stated that
on the date of immersion of Durga idol, he along with his
parents and many others were returning after seeing the
immersion of the idol. At that time, all of a sudden, the
appellant caught of the hands of his mother and tried to
take her away at some distance with ill-motive. His father
raised objection for which the appellant threatened to
take revenge. He further stated that thereafter, his
parents returned to the house of PW1. In the night, PW8
and PW 9 came to his house and Palasdanga village and
informed that the appellant cut down the hands of his
mother. Accordingly, PW 12 went to Konarpur and found
that his mother was lying near Kaltala in bleeding
condition. He was informed by his father that the
appellant assaulted them with a sharp cutting boogie.
Police came and PW 12 accompanied his parents to
Bolpur Sian hospital by an ambulance. His mother was
declared dead whereas father of PW 12 was treated in the
hospital. He was cross-examined on behalf of the
defence.
35. The daughter of the victims has deposed as PW 13.
She has deposed in tune with the deposition of her
brother PW 12. She has stated that on the day of
immersion of the Durga idol in the village, she along with
her parents and many others were returning after seeing
the immersion. On the way, the appellant suddenly
pulled the hands of her mother and forced to take her
away at a distance with an ill motive. Her father raised
objection whereupon the appellant threatened to take
revenge. Thereafter, her parents returned to the house of
PW 1 at Konarpur. In the night, PW8 and PW9 came to
her house at Palasdanga and informed that the appellant
as cut down the hands of her mother. On such report,
she went to Konarpur and found her mother lying at
Kaltala inside the house in a bleeding condition. Her
father stated that the appellant cut them down by using
a sharp cutting boogie. Police arrived there and PW 13
along with her parents and others went to hospital by
ambulance, her mother was declared brought dead
whereas her father was treated in the hospital. PW 13
was also cross-examined on behalf of the appellant.
36. Another son of the victims was examined as PW 14.
He has made similar statement as that made by PW 12
and PW 13. He has also claimed to accompany his
parents when the appellant had pulled the hand of his
mother and try to take her away with an ill motive. He
was also cross-examined by the defense.
37. The brother of the victim Bhutnath Tudu was
examined as PW 15. He stated that there was an incident
on the date of immersion of Durga idol in the previous
year at village Konarpur. He further stated that after the
eight days of the incident of assault in the house of
Bhutnath Tudu, he saw police personnel along with the
appellant at the house of the appellant while PW 15 was
returning after doing daily labour. He further stated that
one boogie was recovered from the north-western portion
of the house of the appellant as per his identification. It
was made of steel and was bigger in size. The said boogie
was seized under a seizure list to which PW 15 put his
signature. He identified his signature on the seizure list
dated November 4, 2012 which was marked as Exhibit
3/1. The appellant also signed on the seizure list. He
further identified his signature on the label attached to
such recovered boogie (Exhibit 4/1). He identified the
appellant in Court.
38. Another witness to the seizure list dated November
4, 2012 was examined as PW 16. He has stated that one
boogie made of steel was recovered from the north-
western portion of the house of the appellant in his
presence. It was seized under proper seizure list by the
police. He stated that he put his Left Thumb Impression
on the seizure list as well as the label attached to the
recovered boogie. He claims being interrogated by police.
He identified the appellant in court.
39. The driver of the ambulance deposed as PW 17. He
testified that on the date of immersion of Durga idol at
24. 00 hours in the night, he took 4/5 persons to Bolpur
Sian hospital one of whom had bleeding injuries. He also
stated that he was called upon by the officials of
Ahmadpur police outpost.
40. An NVF personnel deposed as PW 18. He stated that
on October 27, 2012, the police officers seized the
wearing apparel of the deceased under a seizure list. PW
18 identified his signature on the seizure list which was
marked as Exhibit 5/1.
41. Another Non Voluntary Force (NVF) official who was
a witness to the seizure list dated November 24, 2012,
was examined as PW 19. He proved his signature on the
seizure list dated November 24, 2012 which was marked
Exhibit 6/1. The defence declined to cross-examine the
witness.
42. The police constable who identified the victim
Bhutnath Tudu before learned Magistrate for recording is
a statement under Section 164 of the Code of Criminal
Procedure, 1973 deposed as PW20. He also proved his
signature on the seizure list (Exhibit 7/1).
43. The cousin brother of PW1 was examined as PW 21.
He identified the appellant in Court. He further stated
that on October 26, 2012, Bhutnath Tudu and his wife
used to reside in the house of his cousin brother. In the
night at about 10:30 PM while, PW 21 was sleeping, he
heard a hue and cry in the voice of Bhutnath Tudu as
shouting that the appellant had chopped his wife Dulo
Tudu with a boogie. Hearing the alarm, PW 21 rushed to
the house of Bhutnath and upon entering the house, he
saw Dulo Tudu lying beside Kaltala in bleeding condition.
He was informed by Bhutnath Tudu that the appellant
entered into his house and chopped on the left side of his
neck with a boogie. Thereafter, Bhutnath went into his
room to bring a lathi. He saw the appellant assaulting his
wife Dulo with a boogie. He further stated that so many
persons assembled there. Police and ambulance also
came within one hour and took the victims to Bolpur
Subdivision Hospital.
44. PW 22 was a witness to the inquest report. He
identified his signature on the inquest report dated
October 27, 2012 which was marked as Exhibit 8/1. In
his cross-examination, PW 22 stated that on the date of
incident he was in his house at Palasdanga and he went
to Bolpur Subdivisional Hospital after hearing the news
that the victim Dulo was taken to Hospital.
45. An Assistant Sub- Inspector of Police deposed as
PW 23. He proved his signature on the seizure list dated
November 10, 2012, through which, some photographs of
the place of occurrence were seized, which was marked
as Exhibit 9/1.
46. Another witness to the seizure list dated number 10
2012 deposed as PW 24. He has also proved his
signature on such seizure list (Exhibit 9/2).
47. A witness to seizure list dated November 9, 2012
deposed as PW 25. He proved his signature on the
seizure list through which copies of voter identity card of
Bhutnath Tudu and Dulo Tudu were seized (Exhibit 7/2).
48. The Judicial Magistrate who recorded the statement
of witness Bhutnath Tudu under Section 164 of the
Criminal Procedure Code, 1973 was examined as PW 26.
He tendered the statement of such witnesses recorded
under Section 164 of the Criminal Procedure Code which
was marked as Exhibit 10.
49. The police officer who conducted the investigations
in respect of Bolpur PS Unnatural Death Case
No.188/2012 has deposed as PW 27. He has stated that
on October 27, 2012, he prepared a dead body challan in
respect of the dead body of Dulo Tudu. On the said date,
he also seized the wearing apparels of the deceased
under a seizure list which was tendered by PW 27 and
marked as Exhibit 5. The carbon copy of the dead body
challan was also marked as Exhibit 10. The defence
declined to cross-examine the witness.
50. The medical officer of Bolpur Subdivisional Hospital
has deposed as PW 28. He stated that on October 27,
2012, he examined the dead body of Dulo Tudu and
conducted post mortem examination. He tendered the
post-mortem report prepared by him which was marked
as Exhibit 11. PW 28 also stated the nature of injuries,
he found on the person of the victim. In his opinion, the
cause of death was hemorrhagic shock due to head
injury caused by sharp cutting instrument which was
ante-mortem and homicidal in nature. PW 28 was cross-
examined on behalf of the appellant.
51. The first investigating officer deposed as PW 29. He
stated that being endorsed with the investigation of the
instant case, he visited the place of occurrence and
prepared rough sketch map with index thereof and held
raid in order to secure arrest of the appellant. He
tendered the rough sketch map with index of the place of
occurrence which was marked as Exhibit 13 collectively.
PW 29 also collected blood stains from the place of
occurrence by preparing a seizure list on October 27,
2012 (Exhibit 2). He also proved some photographs of the
blood clots (Exhibit 14 collectively). He also examined the
witnesses on the said date and recorded their statements
under Section 161 of the Criminal Procedure Code, 1973.
He, later on, handed over the investigation to the
subsequent investigating officer on October 28, 2012. PW
29 was cross-examined.
52. The subsequent investigating officer deposed as PW
30. He has stated that being directed by the superiors, he
took over the charge of investigation of the case on
October 28, 2012. In course of investigation, he visited
the place of occurrence examined available witnesses and
arranged for taking photographs of the place of
occurrence by professional photographers. PW 30
arrested the appellant and forwarded him to the Court
with a prayer for police remand. On November 4, 2012,
PW 30 recorded the statement of the appellant and on
the basis of such statement of offending weapon being
Katari/boogie was recovered from the house of the
appellant, as shown by the appellant, in presence of
witnesses. He also collected the Voter's Identity card and
bed head ticket of the victim Bhutnath Tudu. He also
collected and seized the photographs of the place of
occurrence, arranged for recording the judicial statement
of Bhutnath Tudu. He also seized the wearing apparels of
the victim and collected the post-mortem report, viscera
report, inquest report and the dead body challan. PW 30
also sent the exhibits to Forensic Science Laboratory for
chemical examination and collected the caste certificate
of Bhutnath Tudu. On completion of the investigation,
after consulting with superiors, PW 30 submitted charge
sheet on December 21, 2012 under Sections 448/459/
324/326/307 of the Indian Penal, 1860 Code read with
section 3(2)(v) of the Scheduled Castes & Scheduled
Tribes (Prevention of Atrocities) Act, 1989. The relevant
portion of the statement of the appellant recorded under
Section 161 of the Code of Criminal Procedure, 1973 on
November 2, 2012 leading to recovery of the offending
weapon was tendered by PW 30 which was marked as
Exhibit 15 and Exhibit 16. The seizure list by which the
recovered offending weapon was seized was tendered in
evidence (Exhibit 3).
53. PW 30 also proved such documents and requisitions
to which he applied for issuance of bed head ticket, post-
mortem report, Forensic Science Laboratory (FSL) Report.
He also proved a seizure list through which he seized
caste certificate of Bhutnath Tudu (Exhibit 22 and
Exhibit 23). PW 30 was extensively cross-examined on
behalf of the appellant.
54. The photographer who took the photographs of the
place of occurrence was examined as PW 31. He tendered
the photographs prepared by him and his signatures
thereon (Exhibit 25 and Exhibit 25/1), he also identified
his signature on the seizure list dated November 10,
2012 by which the photographs were seized (Exhibit
9/3).
55. The Ward Master of Bolpur Subdivisional Hospital
deposed as PW 32. He stated that on October 27, 2012,
he sent a report to the local police station as per the
instructions of the attending doctor. This witness was
declared hostile by the prosecution and in his cross-
examination on behalf of the prosecution; he denied the
recollection of the arrival of the dead body of Dulo Tudu
in the night of October 27, 2012. He, however, admitted
in such cross-examination that he informed the matter to
Bolpur police station by lodging a written information
and on the basis of such information the Unnatural
Death Case No. 88 of 2012 dated October 27, 2012 was
started.
56. The officer in charge of special operation group at
Birbhum district was examined as PW 33. He has stated
that on October 27, 2012, he received a written
complaint from one Tapan Ghosh and started Sainthia
PS case number 124/2012 dated October 27, 2012
under Sections 302/307 of the Indian Penal Code, 1860
and Section 3 ( 2) (v) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. He
proved the endorsement of receipt of the written
complaint (Exhibit 1/2). He also filled up the formal FIR
which was marked as Exhibit 27.
57. The medical officer of Bolpur Sub divisional Hospital
deposed as PW 34. He has stated that on October 27,
2012, he examined one Bhutnath Tudu. He was admitted
with cut injury at the left side of his neck and he also
had a chest pain. He was admitted on October 27, 2012
and was discharged on October 30, 2012. PW 34 proved
the bed head ticket regarding treatment of Bhutnath
Tudu (Exhibit 28). He also proved the discharge
certificate issued by him (Exhibit 29). This witness was
also cross-examined on behalf of the appellant.
58. According to the case of the prosecution, the
appellant entered into the house of PW1 at about
10.00/11.00 PM, which was then habited by the victims
Bhutnath Tudu and his wife Dulo Tudu. He assaulted
PW3 by boogie causing bleeding injuries on the left side
of his neck. When PW3 went inside the room to bring a
lathi, in order to thwart the appellant, the appellant
assaulted his wife Dulo Tudu with the said boogie
causing serious bleeding injuries. PW3, in his deposition,
claimed to have seen the appellant chopping his wife with
the boogie, while he was returning from inside the room
with the lathi.
59. The matter was instantly brought to the notice of
the house owner, PW1, who asked them to inform the
police. Two of the villagers went to bring the children of
the victims from their house in the adjoining village. On
their arrival, both the victims were taken to hospital by
the villagers. The victim Bhutnath Tudu (PW3) was
treated for his injuries whereas, his wife, Dulo Tudu was
declared by the doctor as brought dead.
60. The doctor who examined the dead body of victim
Dulo Tudu, PW28, upon examination found cut injury
11inches X 4.5 inches behind the left ear extending up to
occipital region posteriorly, occipital bone cut exposing
brain matter, brain matter exposed and lacerated over
occipital region, both lungs congested, heart empty, liver
and spleen congested and bladder empty. He also found
that the head injury posteriorly caused by sharp cutting
instrument leading to laceration of brain matter and
extensive haemorrhage. According to PW28, the cause of
death, in his opinion, was that haemorrhagic shock due
to head injury caused by sharp cutting instrument which
was ante-mortem and homicidal in nature. Therefore,
from the facts and circumstances of the case as set out
by the prosecution together with the testimony of PW28
as well as that of the Post Mortem Report, Exhibit 11 it is
quite evident that the prosecution has been able to
establish that the victim Dulo Tudu died an unnatural
death and that she was murdered.
61. As noted above, PW3 is an eye witness to the
incident. He has unequivocally stated that the appellant
is the person who dealt the fatal blow.
62. He stated that in the afternoon on the day of
immersion of Maa Durga idol in his village, he had an
altercation with the appellant concerning his victim wife.
The appellant had at that time threatened to see him
afterwards. Thereafter, at about 10/10.30 pm, the
appellant scaled up the boundary wall of the house of
PW3 with boogie (khanra) in his hand. It also transpires
from the evidence of PW3 that as soon as the appellant
entered into his house, he captured him but failed to
arrest his hand due to which the appellant assaulted him
with the boogie on the left side of his neck. He shouted
being injured whereupon his wife came there and tried to
restrain the appellant. PW3 also went inside to bring a
lathi from the room. At that time, the appellant started
chopping his wife with boogie due to which she sustained
severe injuries specifically on the left side of her head,
neck and hand. Such a case made out by the prosecution
squarely implicates the appellant in assaulting PW3 and
his wife and resulting in her death. In his cross-
examination also, PW3 has stated that he and his wife
were not sleeping when the appellant entered into the
house.
63. In his narration of the manner of incident, PW3 has
clearly stated that when the appellant assaulted him and
his wife causing serious injuries to them, PW3
incidentally sought help from PW5 and PW21. The
aforesaid witnesses, in their deposition, have supported
the case of the prosecution corroborating the statement
made by the sole eyewitness PW3. PW4, PW5, PW6, PW7,
PW8, PW9 and PW10 are the residents of the locality.
They have corroborated the statement made by PW3 as
well as in the first information report. All the aforesaid
witnesses have stated in a single tone that they heard
hue and cry from the house of the victim at around
10/10.30 pm, they rushed to the house of PW3 and the
victim to know from his mouth that he along with his
wife were assaulted by the appellant. All of them have
claimed to have seen the wife of PW3 lying motionless at
Koltala situated just inside the entrance to the house of
the victim. All the aforesaid witnesses have stated that
the date of the incident was the night following the date
of immersion of Maa Durga idol at around 10/10.30 pm.
All the aforesaid witnesses have stated about a hue and
cry and gathering of so many village people upon such
hue and cry at the house of PW3, the defence has
extensively cross-examined the aforesaid witnesses with
reference to the statement made in their deposition. To
our estimation, the defence has not been able to shake
the credibility of the aforesaid witnesses so far as the
incident involved in this case is concerned.
64. It has come out from the evidence on record that
the victim couple used to reside in the house of PW1 at
village Konarpur and used to look after the landed
property of PW1 whereas their children used to reside at
the original house of PW3 and his victim wife at the
village Polashdanga which is an adjoining village. The
evidence on record goes to show that after the incident
when people assembled and, PW3 and his wife were
found in injured condition and were required to be
medically examined, two of the villagers went to the
residence of PW3 at Polashdanga to bring his children.
65. The two sons and daughter of the victims PW3 and
Dulo Tudu have deposed as PW12, PW13 and PW14
respectively. The aforesaid witnesses have monotonously
stated in their deposition that their parents and the
appellant had an altercation when they were returning
from the immersion of Maa Durga idol. They have stated
that the appellant tried to pull hands of their mother with
an ill-motive which was objected by their father, PW3.
Following this, there was an altercation between PW3
and the appellant, and the appellant threatened PW3.
66. Not only that PW12, PW13 and PW14 have also
stated in a single tone that after the altercation, their
parents PW3 and the victim went to the house of PW1
whereas the three brothers and sisters returned to their
house at Polashdanga . They have also stated that in the
night after the incident, PW8 and PW9 came to their
house at Polashdanga and had given information that the
appellant had cut down the hands of their mother. They
accompanied PW8 and PW9 to Kunarpur village at that
point of time and found their mother lying at Koltala.
PW12, PW13 and PW14 have also stated that their father
(PW3) was crying out that the appellant had assaulted
his wife Dulo Tudu and PW3 himself by a sharp cutting
boogie.
67. The aforesaid witnesses along with the others
accompanied their victim parents to the hospital where
Dulo Tudu was declared brought dead. The other victim
PW3 was medically treated in the hospital.
68. From the evidence of PW12, PW13 and PW14, the
case of the prosecution so far as the altercation between
the appellant and PW3 over the issue of dragging the wife
of PW3 with an illicit motive is also corroborated. All the
aforesaid witnesses have stated that they were the eye
witnesses to the incident when the appellant pulled the
hands of their mother Dulo Tudu and they have testified
that the appellant tried to drag her to the field with some
ill-motive and following this, there was an altercation
between the appellant and their father PW3. They have
also testified that the appellant, in course of such
altercation, had threatened PW3 and Dulo Tudu to see
them afterwards and to take revenge.
69. The aforesaid witnesses were cross-examined on
behalf of the appellant in respect of the factum of alleged
altercation between PW3 and the appellant and the
endeavour by the appellant to drag Dulo Tudu with an
illicit motive. However, to our estimation, such cross-
examination has not been able to imprint any dent upon
the testimony of PW12, PW13 and PW14.
70. The occurrence is said to have taken place at
around 10/10.30 pm in the night of October 26, 2012.
The victim PW3 and his wife were assaulted by the
appellant in course of which the wife of PW3 died and
PW3 himself sustained injuries.
71. As noted above, the villagers assembled at the
house of PW3 after the incident upon his alarm.
Thereafter, two of the villagers went to the adjoining
village to bring the children of the PW3 and the deceased
victim, and on arrival of their children, the victims were
taken to hospital. From the evidence of PW 4 together
with the testimony of Exhibit 28, it transpires that the
victim Bhutnath Tudu was taken to hospital and was
attended by the doctor on October 27, 2012 at 12.15 hrs.
The incident was reported to the police on December 27,
2012 at 10.55 hrs. Exhibit 19 goes to show that the
victim Bhutnath Tudu was attended at the emergency of
Bolepur sub-divisional hospital on October 27, 2012 at
00.15 am i.e. within a very short period of the incident.
The chronology of the evidence so disclosed, the aforesaid
documentary as well as oral evidence, seems to be quite
consistent with the narration of the incident disclosed
from the materials on record. The witnesses appear to
corroborate each other with regard to each and every
detail of the incident.
72. The incident is said happen at around 10.30 pm.
The victim raised alarm and in pursuance thereof,
villagers assembled instantly. The witnesses have
testified that they assembled at the house of PW1, then
inhabited by the two victims, shortly after the incident
and they were taken to the hospital. The sequence of
happenings coming out from the evidence on record rules
out the possibility of any third party intervention
suggesting involvement of any person in the incident of
assault upon PW3 and his wife, other than the appellant.
The evidence of PW3 is explicit as to the direct
involvement of the appellant in the incident of assault
upon the two victims.
73. All the circumstances were confronted to the
appellant at the time of his examination under Section
313 of the Criminal Procedure Code. Besides pleading an
evasive denial and innocence, no plausible explanation
was offered by the appellant with reference to the death
of the wife of PW3 and injury sustained by PW3.
74. The appellant is charged with assaulting the two
victims with a sharp cutting weapon viz. boogie. The
injuries found on the person of both the victims i.e. PW3
and his wife were opined by the autopsy surgeon as well
as the attending doctor to be inflicted by sharp cutting
object. A sharp cutting boogie was recovered from the
house of the appellant. Although, evidence has been led
at the trial that the alleged recovery was made at the
instance of the appellant. Witnesses have testified
recovery of such weapon from the house of the appellant
as shown by him. A portion of the statement of appellant
recorded under Section 161 of the Criminal Procedure
Code, 1973 has been proved which purportedly led to the
recovery of the alleged offending weapon. However, the
said weapon was neither produced at the trial nor it was
sent for chemical examination. The alleged weapon was
also not shown to the doctors for an opinion in reference
to the injuries found on the person of the two victims. As
such we are of the opinion that the purported recovery of
the alleged offending weapon falls short of its connection
with the incident involved in the case.
75. Nevertheless, involvement of the appellant in the
incident of assault upon PW3 and his wife appears to
have been emphatically proved, otherwise, independent
of the recovery of alleged offending weapon at the
instance of the appellant upon his leading statement in
terms of the provisions of Section 27 of the Indian
Evidence Act, 1872.
76. In the case of Rahul (Supra), it was observed by the
Hon'ble Supreme Court, that,
"40. As per the settled legal position, in
order to sustain conviction, the
circumstances taken cumulatively should
form a chain so complete that there is no
escape from the conclusion that within all
human probability, the crime was
committed by the accused only and none
else. The circumstantial evidence must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused and such evidence should
not only be consistent with the guilt of the
accused but should be inconsistent with
his innocence."
77. In the instant case, the evidence on record as well
as the examination of the appellant under Section 313
of the Criminal Procedure Code, taken together as also
taking into account the other circumstances gives rise
to one and only proposition pointing to the guilt of the
appellant. Nothing appears to have been brought forth
suggesting any inference as to the involvement of any
person other than the appellant. The prosecution
appears to have been able to prove the chain of
circumstances so neatly woven that leaves no space for
any inference other than the conclusion that within all
human probability, the crime must have been
committed by none other than the appellant and the
appellant alone.
78. Therefore, in the light of discussions made
hereinabove, we find no reason to interfere with the
impugned judgment of conviction dated December 21,
2019 and order of sentence dated December 24, 2019,
passed by learned Special Court under the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act,
1989, 1st Court, Suri, Birbhum in Spl (A) 02 of 2013.
The same is hereby affirmed.
79. Accordingly, the instant appeal being CRA 86 of
2020 is hereby stands dismissed.
80. Period of detention already undergone by the
appellant during enquiry and /or trial shall be set off
against the substantive sentences in terms of the
provisions of Section 428 of the Code of Criminal
Procedure, 1973.
81. Trial Court records along with a copy of this
judgment and order be sent down at once to the learned
Trial Court for following up the necessary action.
82. Urgent Photostat certified copy of this judgment, if
applied for, be supplied to the parties on priority basis
upon compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
83. I agree.
[DEBANGSU BASAK, J.]
