Karzi Munda Alias Srikanta Munda vs Sate Of West Bengal
2023 Latest Caselaw 1163 Cal

                    IN THE HIGH COURT AT CALCUTTA
                    Criminal Miscellaneous Jurisdiction
                               Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi

                                 CRA 266 of 2021
                         Karzi Munda alias Srikanta Munda
                                         Vs.
                                Sate of West Bengal
                                        with
                                  CRAN 1 of 2022




    For the Appellant        : Mr. Kallol Mondal, Adv.
                               Mr. Krishan Roy, Adv.
                               Mr. Sauvik Das, Adv.
                               Mr. Ayan Mondal, Adv.

    For the State            : Mr. Swapan Banerjee, Adv.
                               Mr. Suman De


    Hearing Concluded on     : February 13, 2023
    Judgement on             : February 13, 2023


   DEBANGSU BASAK, J.:-


   1.

The appeal is directed against the judgement of conviction and the order of

sentence dated January 8, 2021 passed by the learned additional District

and Sessions Judge, Fourth Court, West Midnapore in Sessions Trial No.

39 (05) 2016.

2. By the impugned judgement of conviction and the order of sentence, the

appellant was convicted under section 302 of the Indian Penal Code, 1860

and sentenced to suffer rigourous imprisonment for life with a fine of ₹

20,000, in default to pay the fine to undergo simple imprisonment for

another 6 months.

3. Learned advocate appearing for the appellant contends that, the

prosecution was unable to prove the case beyond reasonable doubt. He

submits that, the learned trial judge did not take into account the

multitude of discrepancies in the deposition of the prosecution witnesses.

He highlights the various discrepancies in the deposition of the

prosecution witnesses. According to him, while the prosecution witness

(PW) 1, PW 14 and PW 18 asserted that the victim expired after being

attacked by an arrow but the deposition by PW 3 depicts that such offence

was committed by another weapon. Such contradictory statements by a

number of witnesses should be taken in favour of the appellant.

4. Learned advocate appearing for the appellant submits that, PW 4 during

his cross-examination clarified that no bloodstain was present on the iron

made portion of the murder weapon. He contends that lack of bloodstains

on the alleged offending weapon cast shadow upon the version of the

prosecution that the appellant supposedly used the offending weapon for

commission of the alleged offence.

5. Learned advocate appearing for the appellant drawing the attention of the

court to the deposition of PW 1, PW 6, PW 7 and PW 10 submits that, PWs

deposed that they were asked to sign various papers by the

police/investigating agency which they duly signed. Therefore, their

testimonies should not inspire any confidence in the court.

6. Learned advocate appearing for the appellant submits that, PW 14 during

her deposition stated that on the fateful day, she was sleeping with her

grandmother outside the room whereas, her parents were in the adjacent

room. The prosecution negligently did not examine the grandmother who

was such a vital witness to the offence.

7. Learned advocate appearing for the appellant submits that, the learned

judge erred in not taking into consideration the intoxicated state in which

the appellant was present at the time of the incident. He relies upon 2010

volume 13 Supreme Court Cases 651 (Sangharaj Bhagappe Kumble &

Ors. -Vs.- state of Maharashtra) and contends that, the case of the

appellant should be considered in light of section 85 of the Indian Penal

Code, 1860 and acquitted.

8. Learned advocate appearing for the state submits that the prosecution was

able to establish the charge beyond reasonable doubt. He submits that,

section 85 of the Indian Penal Code, 1860 is not attracted in the facts and

circumstances of the present case. The victim and the appellant were

married to each other. They consumed liquor/intoxicant voluntarily prior

to the incident. He refers to the manner in which, the victim was put to

death by the appellant. He submits that, initially, the victim was assaulted

with an offending weapon. Thereafter, she was attacked by an arrow which

initially missed. Subsequently, the appellant inflicted blows with an arrow

on the victim. He refers to the post-mortem report of the victim and the

deposition of the post-mortem doctor. He submits that, taking the entire

situation in the true perspective, the order of conviction and sentence

should not be interfered with.

9. The case of the prosecution at the trial was that, the appellant subjected

the victim to cruelty, both physical and mental at the matrimonial house of

the victim over a period of time. The appellant therefore committed an

offence punishable under section 498A of the Indian Penal Code, 1860.

The appellant and the victim came back to the matrimonial home of the

victim, whereupon, the appellant and the victim entered into a quarrel. The

appellant thereafter inflicted blows on the victim. The victim succumbed to

the injuries inflicted by the appellant. On December 19, 2015, the

appellant murdered the victim by an arrow.

10. A written complaint was lodged with the police with regard to the

incident on December 19, 2015. The police registered a First Information

Report on the basis of such written complaint on the same date. The police

on conclusion of the investigations submitted a charge-sheet. Charges as

against the appellant were framed on August 18, 2016 under section 498A

of the Indian Penal Code, 1860 and under section 302 thereof.

11. The appellant pleaded not guilty to the charges and claimed to be

tried. At the trial, the prosecution examined 18 witnesses and relied upon

various documentary and material evidences. The appellant was examined

under section 313 of the Criminal Procedure Code. The appellant declined

to adduce any defence witness at the trial.

12. PW 1 signed the inquest report. He tendered the inquest report which

was marked as Exhibit 1. He also witnessed the seizure made by the

police. The seizure list was tendered and marked as exhibit 2. He stated

that, he knew the appellant and the victim. He stated that, the appellant

was in the habit of taking liquor regularly and to pick up a quarrel in

drunken condition. Very often, the people at the locality were required to

stop the appellant from quarrelling and assaulting. He identified the

appellant in court.

13. PW 2 is another neighbour of the appellant. He signed the inquest

report. He also signed the seizure list. He corroborated the statement made

by PW 1 with regard to the quarrel that the appellant and the victim

frequently entered into.

14. The brother of the appellant deposed as PW 3. His evidence is based

on hearsay. He was not present at the time of the incident.

15. An acquaintance of the appellant deposed as PW 4. He identified the

appellant in court. He stated that, he found the appellant and the victim to

pass through the village road in drunken condition. However, he never

found them quarrelling with each other. He identified the articles which

were seized by the police in his presence.

16. Another acquaintance of the appellant deposed as PW 5. He stated

that, on the night when the victim was murdered, he went to consume

liquor with the appellant. On the subsequent morning, he learnt about the

murder.

17. An acquaintance of the appellant deposed as PW 6. He identified the

appellant in court. He was a witness to the seizure list which was made on

December 13, 2015. He identified various material exhibits.

18. A co-villager of the appellant deposed as PW 7. He stated that, on

December 19, 2015 he returned to his home and in the morning he heard

that the victim died. He went to the place of occurrence and found the

dead body of the victim. He learnt that there was a quarrel between the

appellant and the victim. He witnessed the seizure made by the police. He

identified the appellant in court.

19. An acquaintance of the appellant deposed as PW 8. He identified the

appellant in court. He stated that, the appellant and the victim were in the

habit of picking quarrel on and off and were in the habit of taking liquor

regularly.

20. A relative of the victim deposed as PW 9. He did not add much

substance to either the case of the prosecution or of the defence.

21. Another relative of the victim deposed as PW 10. She stated that, the

victim was not treated well by the appellant. The appellant used to inflict

physical torture upon the victim in drunken condition. She stated that,

she learnt about the incident from a panchayat member. She submitted

the written complaint with the police. The written complaint was marked

as Exhibit 5 at the trial. She was also present at the time of the inquest.

She identified her signature on the inquest report.

22. The police constable who escorted the dead body of the victim to the

hospital for post-mortem examination deposed as PW 11. He identified his

signature which was marked as Exhibit 6. He stated that he handed over

the wearing apparels including ornaments to the investigating officer after

completion of the post-mortem and that the investigating officer seized

those articles by preparing a seizure list. Seizure list was tendered in

evidence and marked as Exhibit 7.

23. A person who knew the appellant deposed as PW 12. His evidence is

based on hearsay. He did not add much substance to the case of either the

prosecution orthe defence.

24. A co-villager of the appellant deposed as PW 13. He stated that, the

appellant and the victim along with another person one day came to his

house in a drunken condition. There were quarrel and altercation between

the appellant and the victim. He could manage to stop them at that point

of time. He heard that the victim was murdered.

25. A daughter of the appellant and the victim deposed as PW 14. She

stated that her age was 14 years and that she read up to class V. She

stated that, on the particular day at night, she was sleeping in the veranda

along with her grandmother when her parents, the appellant and the

victim, who went out of the house for consuming liquor. At around 1/2

a.m. in the night, both of them returned. Thereafter, they started

quarrelling between them as a result of which she woke up. Her

grandmother was also sleeping as she was a bit deaf.

26. PW 14 stated that, her father, the appellant herein, closed the

entrance door of the house. Thereafter, the appellant assaulted her

mother, the victim with a bamboo stick. Her mother fell down. Thereafter,

the appellant threw an arrow at the victim by using a bow-like instrument.

The arrow however missed. The appellant again took the arrow in his hand

and pierced the bottom of the chest of the victim. Thereafter, her mother

the victim was groaning and slowly she was found not moving. Thereafter,

the appellant opened the door and fled away from the house. She called

her grandmother and her neighbours and threw water on the face of her

mother who was found motionless. She states that, some of the neighbours

came to the house. She also informed the incident over phone to her

brother-in-law (elder sister's husband), her aunty and her maternal uncle.

Police was informed through the member of the gram Panchayat. Police

came around 9/10 a.m. on the next morning. She narrated the incident

before the neighbours and the police. The appellant was arrested from the

house. She identified the appellant in court. She stated that, after the

incident, she recorded a statement under section 164 of the criminal

procedure code which was tendered in evidence and marked as Exhibit 8.

27. The son-in-law of the appellant deposed as PW 15. He identified the

appellant in court. He corroborated the evidence of PW 14.

28. The doctor who conducted the post-mortem on the dead body of the

victim deposed as PW 16. He described the injuries he found on the dead

body of the victim. He stated that, in his opinion, the death was due to the

effect of penetrating injury associated with other injuries as noted in the

post-mortem report. The injuries were antemortem and homicidal in

nature. Such type of injuries can be caused if the injuries were inflicted

with an arrow thrown from a bow. He tendered the post-mortem report

which was marked as Exhibit 9.

29. The police personnel who received the written complaint and started

the police case deposed as PW 17. He tendered the formal First

Information Report which was marked as Exhibit 10 in evidence.

30. The investigating officer deposed as PW 18. He narrated about the

course of investigations. He tendered various documents at the trial as

also the material exhibits.

31. On conclusion of the evidence of the prosecution, the appellant was

examined under section 313 of the criminal procedure code. In such

examination, he pleaded that he did not know about the incident, claimed

to be innocent and falsely implicated. He declined to adduce any evidence

at the trial.

32. The body of the victim bore several injuries. The body of the victim

was examined by the post-mortem doctor being PW 16. The post-mortem

report records the injuries that were found on the dead body of the victim.

The post-mortem doctor being PW 16 stated that, the death of the victim

was caused by the injuries noted in the post-mortem report being Exhibit

9. He stated that, the injuries were antemortem and homicidal in nature.

The injuries could be because by an arrow.

33. In view of Exhibit 9 and the deposition of the post-mortem doctor

being PW 16, the prosecution was able to establish at the trial that, the

victim was murdered by inflicting injuries caused by an arrow.

34. PW 14 is the daughter of the appellant and the victim. She witnessed

the incident. She deposed as to the occurrence of the incident vividly, at

the trial. She stated that, the appellant and the victim came back home

late night in a drunken condition. The appellant and the victim picked up

a quarrel. The victim and the appellant entered a room, whereupon, the

appellant closed the door of the room. Thereafter, the appellant inflicted

blow on the victim with a bamboo stick. The victim fell down. The

appellant shot an arrow at the victim which missed. Thereafter, the

appellant pierced the victim with an arrow.

35. The injuries noted on the dead body of the victim as appearing from

Exhibit 9 and the deposition of the post-mortem doctor being PW 16,

corroborated the version of PW 14.

36. On the strength of the deposition of PW 14, it can be said that, the

appellant murdered the victim.

37. The contention on behalf of the appellant that, the court should take

into account section 85 of the Indian Penal Code, 1860, is without any

substance. Several prosecution witnesses deposed that the appellant and

the victim used to drink liquor and get intoxicated. On the fateful day, the

appellant and the victim went and drank liquor and came home in a

drunken condition. PW 5 stated that, the appellant and the victim drank

with him on the fateful night. PW 14 stated that, appellant and the victim

came back home in a drunken condition and that they picked up a quarrel

with each other.

38. The evidence on record establishes that, the appellant consumed

liquor voluntarily and was intoxicated by the same. Therefore, in our view,

provisions of section 85 of the Indian Penal Code, 1860 are not attracted.

39. In Sangharaj Bhogappa Kumble (supra), the Supreme Court found

that, the accused and the victim were friends and were drinking

companions as well. The incident happened because the accused felt that

the deceased should not come in the way of a quarrel that he was having

with his father. It was also found that there was effectively one stab injury

on the person of the deceased and the others were abrasions. Therefore, it

was found that, it cannot be said with certainty that the accused intended

to cause the injury that he inflicted. In such view, the conviction of the

accused for the offence under section 302 of the Indian Penal Code, 1860,

was found not to be made out. He was accordingly acquitted thereof and

convicted under section 304 part I of the Indian Penal Code, 1860.

40. The factual scenario in the present case are entirely different. The

appellant struck repeated blows on the victim. The appellant initially

struck the victim with a wooden stick. Thereafter, he shot an arrow at the

victim which missed the victim. Then, he went on to inflict injuries on the

body of the victim by an arrow. Therefore, in the conspectus of the factual

scenario presently available, it cannot be said that, the appellant did not

intend to murder the victim.

41. The learned trial Judge acquitted the appellant from the charge

under Section 498A of the Indian Penal Code, 1860. State did not prefer

any appeal from such acquital.

42. In view of the discussions above, we find no ground to interfere with

the impugned judgement of conviction and the order of sentence. We affirm

the same.

43. Period of detention of the appellant during investigation and trial be set off

against the sentence imposed.

44. Trial court records along with a copy of this judgment and order be

remitted as expeditiously as possible to the appropriate court for

necessary action.

45. CRA 266 of 2021 is dismissed. In view of the dismissal of the appeal

nothing remains in the interlocutory application. CRAN 1 of 2022 is

dismissed.

46. Urgent photostat certified copy be made available to the applying

parties on compliance of requisite formalities.

[DEBANGSU BASAK, J.]

47. I agree.

[MD. SHABBAR RASHIDI, J]