Rajiv Kumar vs State Of West Bengal
2023 Latest Caselaw 4602 Cal

Item No. 203




                       IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION

Present:
The Hon'ble Justice Joymalya Bagchi
                And
The Hon'ble Justice Gaurang Kanth

                               C.R.A. 56 of 2018
                                 Rajiv Kumar
                                     -Vs-
                              State of West Bengal


For the Appellant(s)                 :   Mr. Partha Sarathi Bhattacharyya
                                         Mrs. Sukla Das Chandra
                                         Mrs. Swarnali Saha

For the State                    :       Mr. Saibal Bapuli
                                         Mr. Bibaswan Bhattacharya

Heard on                        :        01.08.2023


Judgment on                     :        01.08.2023


Joymalya Bagchi, J. :-


1.

Appellant has assailed judgment and order dated 05.12.2017

and 06.12.2017 passed by learned Additional Sessions Judge,

Fast Track Court, Siliguri, District-Darjeeling in Sessions Trial

No. 15 of 2013 arising out of Sessions Case No. 22(2) of 2013

convicting the appellant for commission of offence punishable

under Sections 302 of the Indian Penal Code and sentencing him

to suffer rigorous imprisonment for life and to pay fine of Rs.

10,000/-, in default, to suffer simple imprisonment for six

months more.

2. Prosecution case levelled against the appellant is as follows:-

3. At 10.00 PM on 24th October, 2012, the family members of the

appellant had gone to sleep. Around 3.00 A.M. hearing cries of

their father, Tanushka Kumari (PW1) and her sister Sirin woke

up. They found their mother was lying dead on the bed. Her

throat had been cut open. Appellant had also cut his hand and

was standing with a knife. The domestic help-Rohit snatched

away the knife from the hand of the appellant. Tanushka

informed her relations over phone. Local people and police

assembled at the spot. They removed the appellant and his wife

to hospital. At the hospital his wife was declared dead.

4. Tanushka lodged written complaint resulting in registration of

Siliguri P.S. Case No.633 of 2012 dated 25.10.2012 under

Sections 302/307 of the Indian Penal Code. Appellant was

arrested and charge sheet was filed against him. Charges were

framed under Section 302 of the Indian Penal Code for the

murder of his wife, Rima Kumar and under Section 307 of the

Indian Penal Code for attempting to murder his daughter,

Tanushka. Appellant pleaded not guilty and claimed to be tried.

In the course of trial prosecution examined 15 witnesses and

exhibited a number of documents.

5. In conclusion of trial, trial Judge by the impugned judgment and

order dated 05.12.2017 and 06.12.2017 convicted and sentenced

the appellant, as aforesaid.

6. Mr. Partha Sarathi Bhattacharyya, learned Advocate for the

appellant submits the most vital witness i.e. Tanushka has

deviated from the First Information Report. During deposition

she was silent with regard to the attempt to suffocate her.

Another vital witness i.e. Rohit has not been examined. Appellant

suffered injuries on his body which had not been explained by

the prosecution. Prosecution case is not proved beyond doubt.

Hence, the appellant is entitled to an order of acquittal.

7. Mr. Bibaswan Bhattacharyya, learned Advocate for the State

argues Tanushka (PW1), daughter of the appellant was present

in the house. Her deposition leaves no doubt that the appellant

had committed the murder. Thereafter, he tried to commit

suicide. Her deposition is corroborated by the neighbours who

came at the spot. Post mortem report corroborates the ocular

version and proves the prosecution case beyond doubt.

8. I have gone through the evidence on record. PW1, Tanushka

Kumari is the daughter of the appellant and the de-facto

complainant. She deposed she was sleeping along with her sister

in the house. On hearing the shouts of her father, she woke up

and went to the room occupied by her parents. Her mother was

lying dead on the bed. Blood was also coming out from her

father's hand. She called the neighbours. Police came to the spot.

She lodged First Information Report.

9. Her deposition is corroborated by the local witnesses Arup Ratan

Ghosh (PW2), Kuntal Goswami (PW3), Dipak Kumar Baran

(PW4), Ashok Mimani (PW8) and S.I. Sudip Kumar Dutta (PW10).

These witnesses speak in unison and claimed around 3.00 A.M.

in the night they came to the house of the appellant and found

the appellant's wife Rima Kumari lying on the bed with a cut

throat injury. The appellant also had bleeding injuries on his

hand. Police came to the spot. The couple was removed to the

hospital where Rima Kumari was declared dead.

10. Dr. Rajiv Prasad (PW 6) is the post mortem doctor. He held post

mortem over the body of Rima Kumari and found the following

wounds: -

"1. Chop wound 5 ½ x 2/3rd x soft tissue, place transversely at front of the neck upper margin of which placed 2"below the left ear lobule, 1"below the angle of mandible, 2 ½ below the chin, 1 ½"below the right angle of mandible, directed downward right laterally, deeper at left side transecting all the superficial and deeper structure (larynx, carotid artery etc. ) margin of the wound is clean cut.

2. Chop wound 4"x 1 ½" x soft tissue placed transversely at front of the neck just 2/3"below the previous injury, upper

margin placed, 2"below the left angle of mandible, 3"below the chin,, 2"below the right angle of mandible directed downward right laterally deeper at left side, transecting all the superficial and deeper structure margin of the wound is clean cut.

3. Incised injury ¼"x 2"x muscle placed transversely at front of the right shoulder directed downward laterally margin of the wound is clean cut.

4. Incised injury 1/6"x 2 ½" x muscle placed transversely just 2"below the previous injury at front of the right shoulder directed downward laterally, margin of the wound is clean cut."

He opined death was due to effect of anti mortem homicidal injuries

caused by a sharp cutting moderately heavy weapon.

11. Dr. Prabhas Kr. Roy (PW14) proved the discharge certificate of the

appellant. He deposed the appellant was admitted at North

Bengal Medical College and Hospital with a history of suicidal

attempt by causing cut wounds on the volar aspect of left

forearm. Appellant was discharged on 27.10.2012.

12. S.I. Samit Sarkar (PW15) is the Investigating Officer. He deposed

at 3.00 A.M. while he was on his duty in a mobile van, he got

information to the effect that a murder had taken place at

Agamani Apartment situated at Dangipara Mahanandapara

Siliguri. He along with another police officer came to the spot. He

found Rima Kumari was lying on a bed with a sharp cutting

injury. Another person was sitting beside the lady with a cut

mark on his left hand. He shifted them to Siliguri Sadar Hospital.

Attending doctor declared the lady dead.

13. I.C. came to the spot. Tanushka (PW1), daughter of the appellant

lodged written complaint. Thereafter, he took over investigation

of the case. He prepared rough sketch map with index (Ext.8). He

recorded statements of the witnesses. He returned to Siliguri

Sadar Hospital and prepared inquest over the dead body. He sent

the dead body for post mortem examination. He arrested the

appellant from North Bengal Medical College and Hospital. He

seized articles viz., bloodstained bed sheet, pillow, one white

colour vest of the appellant and a napkin from the place of

occurrence. He submitted charge sheet.

14. Analysis of the evidence on record show in the night between

24.10.2012/25.10.2012, a ghastly incident took place at the

house of the appellant. As per PW1 around 10:00 PM the family

members had gone to bed. Around 3.00 A.M. hearing cries of her

father, PW1 woke up and went to the bedroom of her parents.

She found her mother lying dead in the bedroom on the cot with

cut throat injury. Her father had injuries on his left arm. She

informed the neighbours. Police also came to the spot. Appellant

and his wife were removed to the hospital. His wife was declared

dead while the appellant was released after treatment on

27.10.2012.

15. Evidence of post mortem doctor proves that Rima Kumari, wife of

the appellant had suffered homicidal death due to a cut throat

injury. The incident occurred in the dead of night and appellant

was the only person who was present in the room with his wife.

Soon after the incident, appellant's daughter Tanushka (PW1)

saw her mother lying dead and the appellant sitting beside her.

During trial appellant has not come out with any plausible

explanation how his wife died due to cut throat injury while he

was present in the room.

16. I find no reason to disbelieve PW1. It is contended on behalf of the

appellant PW 1 that the appellant had tried to smother him but

in court she gave a different version with regard to the incident.

This variation in the deposition of PW1 does not improbabilise

presence of the appellant at the spot. She is the daughter of the

appellant and was present in the house at night. She has clearly

described the circumstance in which she saw her father inside

the room where her mother was lying dead with her throat cut.

This fact remains unassailed and proves beyond doubt the

presence of the appellant in the room where his wife was

murdered. Under such circumstances, the onus shifted on the

appellant to explain how his wife was murdered. He has

singularly failed to do so leading to the finger of guilt unerringly

pointing at him.

17. The other argument advanced by the appellant is non-

examination of the domestic servant Rohit Kr. Das. As discussed

earlier, evidence of Tanushka Kumari (PW1) clearly proves the

presence of the appellant in the room where his wife was

murdered. Her evidence is of sterling quality and we find no

reason to disbelieve her version. Quality and not quantity of

evidence is germane to decide the fate of the prosecution case.

Domestic servant Rohit Kr. Das was also present at the place of

occurrence. As the evidence of the daughter of the appellant

Tanushka Kumari (PW1) is wholly reliable, we are of the opinion

examination of the said witness would have only added to the

quantity of evidence that the appellant was present in the room

where his wife was murdered. Thus, non-examination of

domestic servant Rohit Kr. Das does not affect the unfolding of

the prosecution case and does not lead to an adverse inference

against the case.

18. Ocular version of PW1 is corroborated not only by the post

occurrence witnesses but the medical evidence too. PW6 post

mortem doctor corroborated the evidence of PW1 and opined that

her mother Rima Kumari had suffered homicidal death due to

ante mortem injury on her throat caused by a moderately heavy

weapon.

19. Injuries on the appellant have also been explained. Medical report

exhibited by PW14 Dr. Prabhas Kr. Roy records that the injuries

were caused due to suicidal attempt by the appellant himself.

Hence, I am unable to accept the submission of Mr.

Bhattacharya that the prosecution has failed to explain the

injury on the appellant.

20. In the light of the aforesaid discussion I am of the opinion

prosecution evidence points to the irresistible conclusion that it

was the appellant and the appellant alone who had committed

the murder of his wife.

17. Conviction and sentence of the appellant are upheld. Appeal is

accordingly dismissed.

18. Though the appellant had acted in a violent manner and murdered

his wife, we note he did not flee away from the spot. On the other

hand, he tried to commit suicide. These circumstances though not

impacting the culpability of the appellant, may be relevant while

considering the prayer for remission of sentence under section 432

Cr.P.C.

19. In the event upon completion of 14 years of actual imprisonment,

the appellant makes a prayer for remission of his sentence, the

appropriate authority may consider such prayer bearing in mind

the aforesaid observations as well as his conduct in the

correctional home.

20. Period of detention suffered by the appellant during investigation,

enquiry and trial shall be set off against the substantive sentence

imposed upon him in terms of Section 428 of the Code of Criminal

Procedure.

21. Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

22. Photostat certified copy of this judgment, if applied for, shall be

made available to the appellants upon completion of all formalities.

I agree.

   (Gaurang Kanth, J.)                         (Joymalya Bagchi, J.)




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