Calcutta High Court (Appellete Side)
Bimal Jana @ Khokan vs The State Of West Bengal on 28 February, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Application
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRA 39 of 2021
Bimal Jana @ Khokan
Versus
The State of West Bengal
For the appellant : Mr. Ranadeb Sengupta, Adv.
For the State : Mr. Joydeep Roy, Adv.
: Ms. Sujata Das, Adv.
Hearing
concluded on : 01st February, 2023
Judgment on : 28th February, 2023
1
Md. Shabbar Rashidi, J.:
1.
The appeal is directed against the judgement of
conviction dated September 26, 2019 and order of
sentence dated September 27, 2019, passed by learned
Additional Sessions Judge, Fast Track Court, Haldia in
connection with Sessions Trial number 62/2016 arising
out of CIS No. 273/2016.
2. The case of the prosecution is that the sister of de-
facto complainant, that is the victim, was married to the
appellant Bimal Jana in accordance with Hindu customs
and rites. At the time of marriage several articles were
given in marriage. After marriage, the sister of the de-
facto complainant started residing at her matrimonial
house. After sometimes, the victim was subjected to
physical and mental torture by the appellant and other
accused on the plea that she was not good-looking and of
dark complexion.
3. On September 16, 2015, mother of the de facto
complainant went to the matrimonial house of her
daughter taking some vegetables. On that night, the
appellant assaulted the sister of de-facto complainant in
presence of her mother and threatened that he will kill
her. When the mother of de facto complainant, raised
objection she was also beaten by the appellant. On
September 17, 2015, the de-facto complainant, hearing
the news, went to the matrimonial house of his sister and
brought her back with her mother. They were taken to
Nandigram hospital for medical treatment. The de-facto
complainant also informed the incident to the members
of Gokul Nagar panchayat No. 6. They assured de-facto
complainant that the dispute will be settled in a few days
for which the de facto complainant did not make any
complaint before the police. Since then the sister of de
facto complainant has been residing at his house.
4. It is further case of the prosecution that on
September 23, 2015, at about 6 o'clock, in the morning,
the sister of the de-facto complainant went to natural
call. When she did not return for a long, the de facto
complainant started searching for her. The petticoat of
his sister, a pair of slippers and a wooden stick was
found adjacent to the bathroom. The de facto
complainant was informed by the woman of his village
that his brother-in-law Bimal Jana killed his sister and
took the dead body from the canal of water to the house
of Bhanu Pradhan. The appellant is said to have ran
away seeing the de facto complainant. At that time he
was wearing a 'gamcha'(Indian towel) and his entire body
was covered with mud. Hearing the news, the de-facto
complainant along with other villagers went there and
witnessed the dead body of his sister.
5. A written complaint was lodged, over the incident,
by the de-facto complainant on September 23, 2015 at
09. 15 hours. On the basis of such written complaint,
Nandigram Police Station Case No. 388/2015 dated
September 23, 2015 under section 498A/302/201 of the
Indian Penal Code was started against 2 (two) accused
persons.
6. The police took up investigation and on completion
of investigation submitted charge sheet against the two,
First Information Report (FIR) named accused persons.
Accordingly, on the basis of materials in the case diary,
charges under section 498A/302/34/201 of the Indian
Penal Code were framed against the two accused persons
to which, the accused persons pleaded not guilty and
claimed to be tried.
7. In order to bring home the charges levelled against
the accused persons, prosecution examined as many as
22 witnesses. In addition, prosecution also relied upon
documentary and material evidences.
8. The de facto complainant himself deposed as PW 1.
In his deposition, he reiterated his statement in the
written complaint lodged by him. He stated that his sister
Namita Sahoo was married to the accused Bimal Jana as
per Hindu customs and rites. In her marriage, gold
ornaments weighing 30grams, Cash money and other
articles were given. His sister went to her matrimonial
house and started residing with the accused persons. It
was further stated that at the instigation of her mother-
in-law, the accused husband of his sister used to inflict
torture upon her on the ground that she was not good-
looking and of dark complexion. He used to give out that
he will marry again after killing the victim. He further
stated that his sister used to report that she was ill
treated at her matrimonial house and was not provided
with medical assistance as and when she needed. On
September 16, 2015, mother of PW 1, went to the
matrimonial house of his daughter carrying some
vegetables. There she found the appellant assaulting her
daughter and snatching her articles. There she stayed for
the night. In the evening the appellant Bimal Jana came
back and threw all vegetables brought by the mother of
PW 1. On raising protest, mother of PW 1 was also
assaulted by the appellant.
9. Such incident was reported by the mother of PW 1
to him. Being so informed, PW 1 went to the matrimonial
house of his sister on September 17, 2015, and took his
mother and sister to Nandigram hospital for treatment.
PW 1 also stated that he informed the matter to the
members of the gram panchayat whereupon, he was
advised to take his sister to his house and in the
meantime, they assured to resolve the matter.
10. On September 23, 2015, the sister of PW 1 went for
nature's call, at a place surrounded by chot. He searched
for his sister as she did not come back. Going there, he
found one pair of torn slippers and one wooden stick. At
that time some women of the village reported that
accused Bimal, after committing murder of the sister of
PW 1, lifted her dead body from the ditch. However,
seeing the women, the accused fled away. PW 1 was also
reported that at that time, Bimal was wearing a wet
''gamcha'' and his body was covered with mud. PW 1
rushed to the spot and found the dead body of his sister
in naked condition
11. PW 1 reported the matter to the police by lodging a
written complaint which was written by one Shib
Shankar Jana. PW 1 proved his signature on the written
complaint which was marked as Exhibit 1. He also
proved his signature on the inquest report which was
marked Exhibit 2 and that on the seizure list which was
marked as Exhibit 3 collectively. He also produced the
medical papers relating to treatment of his mother and
sister which were seized by the investigating officer under
a seizure list. His signature was marked Exhibit 4. He
also proved the wearing apparel and slippers seized by
the investigating officer which were marked Mat. Exhibit I
and Mat. Exhibit II.
12. A co-villager of the de facto complainant was
examined as PW 2. He has corroborated the case of the
prosecution. She stated that Namita was married to
Bimal two years ago and after such marriage she started
residing at her matrimonial house. The appellant
husband of Namita started inflicting torture upon her at
the instigation of his mother. He used to assault Namita
and did not provide medical assistance to her. She
further stated that when the mother of victim visited her
matrimonial house carrying some vegetables, the victim
was assaulted in her presence and on raising protest, the
mother was also assaulted. Both of them were brought
back by PW 1.
13. PW 2 further stated in her deposition that when she
was returning after leaving her son for pollution at about
6 AM, she found Bimal Jana having mud all over his
body and he was wearing a 'gamcha'. He was coming
hastily. PW 2 called but he went away pushing her
without responding to the her calls. She then reported
the matter to another neighbour lady Sumitra Barman to
intimate the house of the de facto complainant. She
heard that Namita went to meet natural call some 10/15
hands from a house where a red colour saya and one pair
of slippers and a wooden stick where found. She found
the dead body of Namita in a naked condition in the
jungle by the side of the house of Bhanu near the ditch.
She covered the dead body with a sari and brought it
near a tea stall. She further stated that Namita was killed
by her husband. PW 2 also identified the seized articles.
She was interrogated by police and recorded her
statement before learned Magistrate and proved her
signature on such statement which were marked Exhibit
5 series. She also identified the appellant in court.
14. Another lady from the village of de facto
complainant was examined as PW 3. She identified the
appellant in court. She also stated that Namita was
married to Bimal Jana about two years ago. After
marriage, the Namita used to reside at her matrimonial
house. She was subjected to torture and assault. She
further stated that after some days, her mother went to
matrimonial house of Namita carrying vegetables. She
had an altercation with Bimal Jana and she was
assaulted by him. On protest Bimal also assaulted the
mother of Namita. She stated that Namita was assaulted
as she was of dark complexion. The matter was reported
to PW 1 who brought both his sister and mother to
Nandigram hospital for treatment. Since then Namita was
at her father's house. PW 3 also stated that after five or
seven days Namita went to the bathroom at about 6 AM
in the morning, some 10/15 hands from her house by
the side of the ditch. She further stated that one wooden
stick, a red colour saya and one pair of slippers were
found lying near the jungle. She also stated that one girl
from the village reported to her that she found Bimal
Jana wearing a wet 'gamcha', having mud all over his
body and fleeing away. On search, Namita was found she
was d in naked condition near the house of Bhanu
Prodhan. The dead body of Namita was brought near a
tea stall. PW 3 also stated that since Bimal was fleeing
away, she thought, that he committed murder of Namita.
She was interrogated by police.
15. In her cross-examination, PW 3 stated that she saw
Bimal fleeing away and she married at the same before
police.
16. Another lady from the village of the paternal house
of the victim deposed as PW 4. She claimed to know PW
1, his sister Namita and the appellant. She identified the
appellant in court. She further stated that Namita was
married to Bimal Jana and after such marriage she went
to her matrimonial house. Namita was subjected to
torture and her matrimonial house and was assaulted by
the accused as she was of black complexion and her
accused husband had every intention to marry for the
second time. She also stated that on 5th Aswin, Bimal
Jana fled away hastily in wet body covered with mud. PW
4 stated that she and Alpana Barman had seen Bimal
fleeing away. She reported the matter to PW 1. She also
stated that at that time they were searching for Namita
and one pair of slippers, one stick and red colour saya
was lying there which belonged to Namita. After some
time they could trace out the dead body of Namita in a
naked condition in the jungle near the house of Bhanu
Prodhan which was brought near a tea stall. She has also
stated that Bimal committed murder of Namita. PW 4
also stated to have recorded her statement before learned
magistrate.
17. The doctor who examined the victim Namita and his
mother deposed as PW 5. He stated that on September
19, 2015 he examined Namita Jana and Ava Rani Sahu,
while on emergency duty at Nandigram B. M. Pal, BPHC.
He proved the report prepared in his pen and signature
which were marked as Exhibit 6 and 6/1.
18. The Block development Officer, who conducted
inquest on the dead body of Namita, was examined as PW
6. He has stated that on September 23, 2015, he
conducted inquest upon the dead body of Namita and
prepared a report in this regard which he tendered in
evidence which was marked as Exhibit 7. He further
stated that he found injury on the left and right side of
neck, black spot on middle of forehead, red spot just
under the left eye. He also noted scratch over whole body
caused by thorn like object.
19. A lady from the village of the de facto complainant
deposed as PW7. She stated that she knew the accused
persons and identified them in Court. She further stated
that she also knew Namita and Uttam Sahoo. Namita
was married to Bimal Jana two years ago. After marriage,
she went to her matrimonial house. She was happy there
for two months and thereafter she was subjected to
torture as she was of black complexion. She was denied
proper food and medical assistance and used to be
assaulted her husband at the instigation of the mother-
in-law of Namita. PW7 also stated that in the month of
the Bhadra, mother of Namita went to her matrimonial
house after about one and half years of her marriage. At
that time, Namita was suffering under fever and Bimal
did not provide proper treatment to her. Over that issue,
the accused Bimal had altercation with Namita and her
mother. Bimal assaulted both of them. Namita informed
her brother who brought them back and took them to
Nandigram hospital. She further stated that on 5th Ashin,
Namita went to bathroom and after some time she was
not found. Sumitra Barman and Alpana Barman at the
house of Uttam that they saw Bimal. PW7 stated that
going there, she found one Magenta covered saya, one
wooden stick and a pair of black coloured sleepers lying
there. PW7 informed this at the house of Uttam. She
further stated that the dead body was found bearing
marks of dragging by pulling her legs from the bank of
ditch. The dead body was found in deep bushes near the
house of Bhanu Pradhan. PW7 recovered the dead body
from the bushes by pulling in a naked condition. The
dead body was taken near a tea stall of Gourmore. She
further stated that Bimal committed murder of Namita.
She also identified the seized articles in Court. In her
cross-examination, PW7 admitted to have stated before
Police that Sumitra and Alpana both saw Bimal. She also
admitted having stated before Police that after taking the
dead body in lap kept her near tea stall at Gourmore.
20. PW 8 is the scribe. He stated that he wrote down the
written the complaint as per the instruction of Uttam. He
proved the written complaint which was marked Exbt.
1/1. He further stated that the dead body was found in a
naked condition and was recovered from jungle near
ditch. He was also present when the dead body was
examined and a saya, stick and sleepers were seized by
Police. He signed on the seizure list. PW 8 proved his
signature on the seizure list Exbt. 4/1 and the
magisterial inquest report (exbt. 7/1).
21. Another lady from the village of the de facto
complainant was examined as PW9. She stated that she
knew Uttam Sahoo, Namita and the accused persons.
Namita was married with Bimal two years ago. After
marriage, she went to reside at the house of Bimal. PW9
identified the accused persons in Court. She further
stated that husband and mother-in-law of Namita used to
inflict torture upon her. PW9 stated that Namita died on
5th Ashwin at 9 and she found Bimal Jana going through
road by the side of her house. At that time, his body was
bespattered with mud and he was having a wet 'gamcha'.
He was going there hastily. After some times, PW9 heard
a hue and cry that Namita was murdered by her
husband. She along with others rushed towards Khalpar
behind the house of Bhanu Pradhan where the dead body
was found. It was taken to tea stall by the side of pitch
road. She also found sleepers, wooden stick and red saya
near the bathroom. PW9 identified the said articles in
Court.
22. One person from a neighbouring village has been
examined as PW10. He stated that about 8/9 months ago
at about 7 or 7.30 p.m., one boy came to his house with
a request to keep his wet 'gamcha' at his house, which he
declined. The said boy also demanded one cloth for his
wearing. On his request, wife of PW10 provided a torn
apparel to that boy. On enquiry, the said boy disclosed
that he was a resident of Simulkundu and that he was
coming after killing his wife. Thereafter, the said boy left
the house wearing the pant. PW10 also stated that after
three and half months, Police visited his house with that
boy. At first, he could not identify the said boy. But later
on, he could identify the said boy who borrowed wearing
apparels from his house. PW10 identified the said boy as
the appellant in Court. In his cross-examination, PW10
stated that the village of the complainant was about one
mile away from his house.
23. An acquaintance of PW1 deposed as PW11. He
stated that he knew Uttam Sahoo and Namita. He went
to P.S. for delivering medical papers of Namita who had
died. PW11 identified his signature on the seizure list
(Exhibit- 4/2). In his cross-examination, he has stated
that his village was 5 to 7 km from the village of the
complainant. He could not show the description of the
papers delivered by him at the Police Station.
24. Another resident of adjoining village was examined
as PW12. She stated that about 9/10 years ago (from
15.07.2016), an unknown boy came to her house
demanding one wearing apparel. She provided a wearing
apparel and asked him as to why he was in a wet
'gamcha'. She further stated that the said boy had
disclosed that he committed murder of his wife.
Thereafter, he fled away. She further stated that after
three months, thereto, Police came to her house and
asked if she identified that boy. She identified the boy as
the person whom she had provided an old pant-shirt. She
also claimed to have been interrogated by the Police. In
her cross-examination, at first, she denied a suggestion
to the effect that nobody however came to her house
demanding shirt and pant but incidentally thereafter, she
made a statement that the boy never came to her house
demanding pant and shirt and she did not provide him
such apparel. The said boy was identified by Police.
25. PW13 is the photographer. He stated that about 10
months ago, he tendered photographs of latrine(covered
with chat), slippers, two sticks and that of the place of
occurrence(khalpar), which were marked as Exhibit-8
series.
26. Another co-villager has deposed as PW14. He stated
that he knew the complainant Uttam Sahoo, his sister
and the accused persons. He further stated that Namita
was married to about 2/3 years ago and started residing
at her maternal house due to torture inflicted by her
husband and mother-in-law as she was of dark
complexion. PW14 also stated that on September 16,
2015, mother of Namita went to her matrimonial house
carrying some vegetables. Namita was assaulted in
presence of her mother and mother was also assaulted.
On the following day, brother of Namita went to her
matrimonial house and brought Namita and her mother
back for medical examination at Nandigram Hospital.
Thereafter, Namita was residing at her father's house. It
was also stated that on September 23, 2015, Namita
went to meet nature's call near Khalpar in a privy
surrounded with 'chat'( thatch). When she did not return
since long time, she was searched. Her dead body was
found lying naked in the jungle opposite khalpar near the
house of Bhanu Pradhan, which was retrieved by the
local women. Her body was brought over pitch road and
covered with a saree. PW14 also stated that possibly
Bimal, husband of Namita caused death of Namita by
attacking with lathi and dragged her to khalpar. He has
stated that the saya, slippers and wooden lathi were
seized. PW14 proved his signature on the seizure lists
(Exbt. 3/1,2/1).
27. The mother of the de facto complainant and victim
deposed as PW15. She stated that Namita was married to
Bimal Jana. After marriage, she went to her matrimonial
house. She was not provided with proper food and
assaulted by the accused persons as she was of black
complexion. PW15 also stated that she went to the house
of Namita carrying some vegetables at about 10 a.m. Her
son-in-law left the house seeing her and came back at 7
p.m. He threw of her vegetables into the pond and
abused her. He also assaulted Namita and PW 15 due to
which she sustained injuries on her hand and head.
Bimal also locked the door and upon alarming raised by
PW15 and Namita, they were rescued by the village
people. On the following morning her son came and took
her for medical examination. She further stated that after
7/8 days, her daughter died. Her daughter went to
latrine in the morning when she did not return, PW15
searched for her and found lathi, slippers and saya lying
in front of the latrine. She made hue and cry. She was
reported by some female villagers that her son-in-law fled
away with wet 'gamcha'. On search, the daughter of
PW15 was found lying dead in a naked condition in
jungle. She stated that Namita was murdered by Bimal
Jana. She identified the seized articles in Court. She
specifically stated that the seized saya and slippers
produced in the Court belonged to her daughter. PW 15
was cross-examined and in her cross-examination, she
stated to have narrated before the Police that Bimal
locked PW15 and her daughter and they were rescued by
the village people.
28. One Panchayet Member deposed as PW16. He
stated that Namita was married to Bimal Jana three
years ago and Namita died on September 23, 2015. He
further stated that in the early morning, he got
information on the death. He found the dead body in
bushes near khalpar. He heard that one Sumitra Barman
noticed husband of deceased going with a wet 'gamcha'
from there. He also stated that one lathi, pair of slippers
and saya were found near the privy, which was seized by
Police. PW16 proved his signature on the seizure lists
(Exbt. 3/2 and 2/2). He however did not know the
accused (Bimal Jana).
29. The Police Constable who accompanied the dead
body of Namita on 23.20.2015 deposed as PW17. He
deposited the articles belonging to the deceased at the
Police Station by signing on the seizure list. He proved
his signature (Exhibit 8).
30. The Recording Officer was examined as PW18. He
stated that on September 23, 2015, he received a written
complaint at Nandigram Police Station from one Uttam
Sahoo and started Nandigram P.S. Case No. 388/15
dated 23.09.2015 under Section 498A/302/201/34 of
the Indian Penal Code and entrusted Sub-inspector
Mankilal Adak to investigate the case. Simultaneously,
one UD Case being Nandigram P.S. Case No. 50/15
dated 23.09.2015 was also started. PW 18 tendered the
formal First Information Report which was marked as
Exhibit- 9.
31. Another Police Officer of Nandigram P.S. was
examined as PW19. He stated that on January 07, 2016,
he went to Kontai P.S. and submitted a request for
collecting certain information. He tendered the request
which was marked Exbt. 10. He also stated that on
December 15, 2015, he was on double duty at Nandigram
Police Station and signed on a seizure list. His signature
was marked Exbt. 8/1.
32. The Investigating Officer of the case was examined
as PW20. In his deposition, PW20 deposed about the
manner and purport of his investigation. He conducted
the inquest over the dead body and submitted a request
for magisterial inquest. PW 20 proved the inquest report
which was marked Exbt. 2/3. He also forwarded the dead
body to Tamluk Hospital for Post Mortem examination.
He also visited the place of occurrence and prepared
rough sketch map with index which were marked as
Exbt. 11 and 11/1. He also seized certain articles
belonging to the deceased as well as a wooden stick
under a seizure list prepared by him (Exbt. 3/3). PW20
also identified the alamats/ material exhibits produced in
Court. He also arranged for recording statement of
witnesses under Section 164 of the Code of Criminal
Procedure, collected the Post Mortem Report and sent
viscera for chemical examination. The wearing apparels
of the deceased OPD ticket were seized by him. He also
prepared rough sketch map with index of the second
place of occurrence where the dead body also found,
recorded statement of the witnesses under Section 161 of
the Cr. PC. On completion of investigation, PW20
submitted charge sheet in the case. PW20 was cross-
examined on behalf of the accused persons at great
length. In his cross-examination, PW20 stated that PW3
Chaiarani did not state before him that she came to know
about the torture from Namita and that she did not
disclose before him that she saw Bimal fleeing away.
33. The doctor who conducted post mortem upon the
dead body of the victim deposed as PW21. He stated that
on September 23, 2015, he conducted post mortem
examination over the dead body of Namita Shahoo in
connection with Nandigram P.S. UD Case No. 50 of 2015
and first information report No. 388 of 2015 both dated
September 23, 2015, he stated in his deposition that as
per his information cause of death was due to the
combined effects of drowning partial throttling which
were ante-mortal and homicidal in nature. PW21
prepared a post mortem report in this regard which was
tendered by him and marked Exbt. 13. He further stated
that upon such examination, he found the following
wounds over the dead body:
1) One near oval thumb like impression (of
flexor aspect - pulp of thump) with
regular margin measuring approximately
2.3 cm x 2cm over central region of
forehead - dark red or better to say
blackish in colour. On dissection think
sub scalp hematoma which stained to the
periostium beneath over frontal bone.
The hand lance used and vital reaction
positive.
2) The occipital protuberance also having
thick dark reddish hematoma - sub scalp.
On dissection :- vital reaction positive.
3) Back of both heels and elbows also
having abraded bruises (dependent parts).
Neck findings:- circumference of neck at
upper border of thyroid cartilage is
approximately 11.5 cm. Reddish mark
like that of "fingers in glass holding
fashion" over upper and mid region of
neck -thumb like impression over right
side of neck and other 4's over left side
of neck. Upper border of the said
impression is continuous (1' and 2nd web
space- skin-mid of which is centrally
placed over neck.) The rest four fingers
like impression is joined over central mid
line neck and laterally spread- not to
much. The second mark over left side is
longest on counting from above
downwards and lowest one on same left
side is smallest in length. The much over
right side of neck is thickest and placed
downwards and continuous with that of
left side (arising out of impression by
index finger) the falling light over neck is
/ tangential and colour neck is brownish
the hand lance used shows bruise more
clearly with the above noted findings. No
nail scratch mark or mars of ligature.
34. The learned Magistrate who recorded the
statements of the witnesses under Section 164 of the
Code of Criminal Procedure deposed as PW22. She
tendered the statements which were marked as Exbt. 5/2
and Exbt. 14.
35. Upon completion of evidence adduced on behalf of
the prosecution, the accused persons were examined
under Section 313 of the Code of Criminal Procedure.
The circumstances in respect of the death of Namita,
going against the accused persons were put forth and
explained to the accused persons in such examination to
which the accused persons denied all the allegations
appearing against them as transpired from the evidenced
on record. The accused persons pleaded innocence and
the allegation to be false.
36. In consideration of the materials on record
including the examination of the accused persons under
Section 313 of the Code of Criminal Procedure, by the
impugned judgment of conviction, the accused Bimal
Jana @ Khokon was convicted of the offences punishable
under Sections 498A /302/201 of the Indian Penal Code.
The accused Panchami Jana was, however, found not
guilty and was acquitted.
37. By the impugned order of sentence, the convict
Bimal Jana was sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.
10,000/- and in default of payment of fine to suffer
rigorous imprisonment of a further period of six months
for the offences punishable under Section 498A of the
Indian Penal Code. The said convict was also sentenced
to rigorous imprisonment for life and a fine of Rs.
20,000/- and in default of payment of the fine to suffer
rigorous imprisonment for further period of one year for
the offences punishable under Section 302 of the Indian
Penal Code.
38. He was further sentenced to suffer rigorous
imprisonment for seven years and a fine of Rs. 5000/-
and in default of payment of the fine to undergo rigorous
imprisonment for another three months for the offences
punishable under Section 201 of the Indian Penal Code.
All the sentences were directed to run concurrently.
39. The learned advocate for the appellant submitted
that there are contradictions in the testimony of
witnesses examined on behalf of the prosecution. It has
been pointed out that the de-facto complainant claimed
to have been reported by the women of the village who
had seen the appellant fleeing away from the place of
occurrence just after the incident. However, such fact
was not incorporated in the written complaint lodged by
the de facto complainant. It is also pointed out that PW1
also stated in his deposition that he saw the appellant
fleeing away seeing PW1. It is contended that the
statements so given by the PW1 were contradictory. Non-
mentioning of the names of the women who informed
PW1 in the written complaint has also been said to
render the testimony of PW1 untrustworthy. Moreover, it
is argued that there is no evidence on record from any
corner showing the entry and exit of the appellant in the
village of PW1 at the relevant point of time.
40. Learned advocate for the appellant also pointed out
that PW4 has claimed that she and PW2 saw the
appellant fleeing away, contrary to the statement of PW2
who stated that she saw the appellant fleeing away and
thereafter, she reported it to PW4. It was also pointed out
that the written complaint did not contain the statements
to the effect that it was read over and explained to its
maker and as such, it is not reliable. Learned Advocate
for the appellant has also assailed the credibility of the
testimony of PW9 to the effect that she saw the appellant
walking on the road beside her to know the reason for
discarding such evidence was assigned.
41. Learned advocate for the appellant also challenged
the testimony of PW10 and PW12 from whose house the
appellant is said to have borrowed wearing apparel after
the occurrence on the ground that the aforesaid
witnesses kept silence for over three months in spite of
the fact that the appellant is said to have made an extra
judicial confession before them. Learned advocate for the
appellant also pointed out that some of the vital
witnesses like Bhanu Pradhan from whose house the
dead body was found was not examined. No steps were
taken by the Investigating Officer to obtain finger prints
from over the neck of the dead body and that it was not
disclosed as to who identified the place of occurrence to
him. The Investigating Officer also did not take any steps
for forensic examination of the seized the articles. For the
aforesaid reasons, learned advocate for the appellant
sought to assail the impugned judgment of conviction
and order of sentence.
42. On the other hand, learned advocate for the State
has submitted that the evidence adduced on behalf of the
prosecution has sufficiently proved that the appellant
was seen in the village of the de facto complainant just
after the occurrence. It was submitted that the
prosecution has been able to prove circumstances that
the appellant committed murder of the victim in the wee
hours of the date of occurrence. It is submitted that it
has been proved that the appellant after committing
murder was seen in a wet 'gamcha' with mud all over his
body. He fled away from the place of occurrence and on
his way, he borrowed wearing apparels from the house of
the witnesses where he is said to have made an extra
judicial confession of committing murder of his wife.
Therefore, it has been contended that the prosecution
has been able to bring home the charge levelled against
the appellant beyond all shadow of all reasonable doubts.
As such, the impugned judgment and order is liable to be
affirmed.
43. According to the case set out by the prosecution,
the victim was married to the appellant and after such
marriage, she started residing with the appellant at her
matrimonial house. She was subjected to torture by the
appellant and his mother on the plea that she was of
dark complexion. It has also come out in the evidence
that the appellant used to give out to marry for the
second time after killing the victim. It is further the case
of prosecution that while the victim was at her father's
house, the appellant came to the village. He got an
opportunity when the victim went to meet nature's call to
a bathroom situated at some distance from her house in
the morning. Utilising the opportunity, the appellant
committed murder of his victim wife and fled away from
his in-law's village.
44. It is a fact that there was no eye witness to the
incident and the case is entirely based on circumstantial
evidence.
45. It is a case of the prosecution that when the victim
went to meet nature's call in the morning and did not
return for a while, her family members started searching
for her. In the mean time, it was reported by some of the
witnesses that the husband of the victim was seen fleeing
away in a wet 'gamcha' having mud all over his body.
Thereafter, the dead body of the victim was recovered in a
ditch from near the house of one Bhanu Pradhan. Prior to
that a wooden stick, a red saya and sleepers belonging to
the victim was found lying near the bath room. The dead
body was recovered and thereby an inquest was
conducted by Police over the dead body and later on the
post-mortem examination of the dead body was also
conducted. The incident is said to have taken place in the
morning of September 23, 2015. The post-mortem
examination of the dead body was conducted on
September 23, 2015 by PW21, upon which a post mortem
report was also prepared by him being Exhibit-13. PW21
stated in his deposition that two types of injuries were
found on her neck also. PW21 opined that the cause of
death of the victim was the combined effects of drowning
and partially throttling which was ante mortem and
homicidal in nature. The autopsy surgeon PW21 found
the injuries on the dead body of the victim namely:-
1. One near oval thumb like impression
(of flexor aspect - pulp of thump) with
regular margin measuring approximately
2.3 cm x 2cm over central region of
forehead - dark red or better to say blackish
in colour. On dissection think sub scalp
hematoma which stained to the periostium
beneath over frontal bone. The hand lance
used and vital reaction positive.
2. The occipital protuberance also having
thick dark reddish hematoma - sub scalp.
On dissection :- vital reaction positive.
3. Back of both heels and elbows also
having abraded bruises (dependent parts).
Neck findings:- circumference of neck at
upper border of thyroid cartilage is
approximately 11.5 cm. Reddish mark like
that of "fingers in glass holding fashion"
over upper and mid region of neck -thumb
like impression over right side of neck and
other 4's over left side of neck. Upper
border of the said impression is continuous
(1' and 2nd web space- skin-mid of which is
centrally placed over neck.) The rest four
fingers like impression is joined over
central mid line neck and laterally spread-
not to much. The second mark over left
side is longest on counting from above
downwards and lowest one on same left side
is smallest in length. The much over right
side of neck is thickest and placed
downwards and continuous with that of left
side (arising out of impression by index
finger) the falling light over neck is /
tangential and colour neck is brownish the
hand lance used shows bruise more clearly
with the above noted findings. No nail
scratch mark or mars of ligature.
46. From the testimony of PW21 all together with
Exhibit 13, it is quite evident that the prosecution has
been able to prove that the victim died an unnatural
death which was opined by the doctor to be homicidal in
nature.
47. According to the case of the prosecution, the victim
was murdered by the appellant being her husband. The
circumstances put forward by the prosecution to
incriminate the appellant in the murder of his wife is that
he used to inflict torture upon his wife on the ground of
her dark complexion. A few days prior to the incident i.e.
on September 16, 2015 and September 17, 2015, the
appellant is subjected to have assaulted the victim and
her mother when the mother of the victim visited her
matrimonial house carrying some vegetables. On
September 17, 2015, the victim and her mother were
brought back to her father's house by her brother and
were medically treated due to the assault inflicted by the
appellant.
48. On the date of incident i.e. on September 23, 2015,
the appellant was seen fleeing by some women of the
paternal village of the victim. They reported the matter to
the brother of the victim i.e. PW1. PW1 in his deposition
has stated that he was searching for his sister who did
not return for long time from the bath room, and also
reported that the appellant committed murder of the
victim and dragged the dead body from a ditch belonging
to Bhanu Pradhan. The village women also reported PW1
that seeing them the appellant fled away. Upon such
report from them, the dead body of the victim was
recovered by PW1.
49. One of such village women deposing as PW2 stated
that when she was going after leaving her son to private
tuition at about 6 a.m., she found the appellant having
mud all over his body. He was then wearing a wet
'gamcha' and was moving hastily from the side of Khalpar
(bank of a canal). She also stated that she called the
appellant but he did not respond to her calls and went
away by pushing her. She informed the matter to PW4.
PW4 has supported the statements of PW2. She also
stated that she saw the appellant fleeing away hastily in a
wet 'gamcha' and his body besmirched with mud. PW4
also stated that she intimated it to PW1. Both PW2 and
PW4 have also supported the case of the prosecution that
red saya, sleepers and a wooden stick were recovered
from near the bath room and the dead body of the victim
was recovered from a ditch near the house of one Bhanu
Pradhan. PW3 has also testified the statements of PWs 1,
2 and 4 as regards the recovery of the dead body. PW7
has supported the statement of PWs 1, 2, and 4 and
testified that the appellant was seen by PWs 2 and 4 and
that they reported the same to the house of PW1. The
said witness also testified the recovery of sleepers, red
saya and wooden stick as also that of the dead body of
the victim from near the house of Bhanu Pradhan. The
Police was informed and the aforesaid articles were seized
by Police under a seizure list. An inquest was conducted
on the dead body and inquest report was prepared. PW13
has proved the photograph of the seized articles as well
as the dead body at the spot.
50. The evidence of PW1, 2, 3 and 4 goes to establish
that the appellant was present in the village of PW1 on
the date and time of incident. The appellant is a resident
of another village. In the cross-examination of the
aforesaid witnesses, the defence has not been able to
make any dent upon the credibility of the aforesaid
witnesses as regards presence of the appellant at the
place and time of occurrence in the paternal village of the
victim.
51. The resident of another village PW10 and his wife
PW12 have stated that at about 7/7.30 p.m. came to
their house with a request to keep his wet 'gamcha' at
their house. He also asked for some spare wearing
apparel which was provided by them. The said boy stated
to before them that he was a resident of Simulkundu and
he had killed his wife. Thereafter, the said boy left his
house. After 3 or 3 ½ months, Police visited his house
with the said person and PW10 identified the said boy
who had been provided with an wearing apparel. Such a
statement of PW10 has been emphatically supported by
his wife PW12. PW10 and PW12 both identified the
appellant in Court as the person who borrowed wearing
apparel from their house. The testimony of PW10 and
PW12 verifies the case of the prosecution regarding
presence of the appellant in the paternal village of the
victim on the date and time of the occurrence.
Furthermore, both PW10 and PW12 in their deposition
stated that the appellant made a confession before them
that he had killed his wife and fled away. There is
absolutely no cross-examination of the aforesaid
witnesses on behalf of the appellant as to the
confessional statements made by him before the said
witnesses. In the examination of the appellant under
Section 313 of the Code of Criminal Procedure, the
appellant was confronted with the statements given by
PW10 and PW12 but no explanation whatsoever was
offered on behalf of the appellant. Thus, from the
evidence adduced on behalf of the prosecution as well as
the examination of the appellant under Section 313 of the
Code of Criminal Procedure, there appears no doubt that
the appellant was present in the paternal village of the
victim on the alleged date and time of incident. It is also
not doubtful that the appellant was then wearing a wet
'gamcha' and his entire body was covered with mud. The
evidence on record suggests that the victim was
murdered, partially by throttling and partially by
drowning. The circumstances had suggested that the
appellant must have gone wet and mud-laden in the
process of committing murder of his wife in the canal.
Thereafter, the dead body was dragged and thrown into a
ditch. The appellant was seen in a wet condition
besmirched with mud reported by the ladies of the
paternal village of the victim as well as by the witnesses
from the adjoining village on his way back i.e. PW10 and
PW12.
52. Since the testimony of the aforesaid witnesses being
PWs 1,2,3 and 4 taken together with that of PWs 10 and
12 goes to establish that the appellant was present in the
paternal village of the victim on the relevant date and
time, it was obligatory upon the appellant to offer an
explanation for his presence in the paternal village of the
victim in the morning hours and that too in a
questionable condition wearing a wet 'gamcha' and his
body being covered with mud. No such explanation has
been provided on behalf of the appellant which
necessarily obviates inference towards the guilt of the
appellant in the murder of his victim wife.
53. Besides that, the testimony of PW10 and PW12 also
discloses that the appellant made an extra judicial
confession before them, admitting his involvement in the
murder of his wife. The evidence of PW10 and PW12 goes
to show that the appellant chose not to cross-examine
the aforesaid witnesses so far as it related to the extra
judicial confession. For the sake of argument, even if we
leave aside extra judicial confession made by the
appellant before PW10 and PW12, even then the
appellant has not been able to give plausible explanation
for his presence in the paternal village of the victim on
the relevant date and time. For the aforesaid reasons, we
are of the opinion that the prosecution has been able to
bring home the charge levelled against the appellant
beyond the shadow of all reasonable doubts.
54. Therefore, on the basis of discussion made
hereinbefore, we find no reason to interfere with the
impugned judgment of conviction and order of sentence.
Accordingly, the impugned judgment of conviction dated
September 26, 2019 and order of sentence dated
September 27, 2019 passed by learning Additional
Sessions Judge, Fast Track Court, Haldia are affirmed.
55. Consequently, the instant appeal being CRA 39 of
2021 is hereby dismissed.
56. Let the Trial Court records along with a copy of
this judgment be sent down immediately to the
appropriate Court for necessary action.
57. Urgent Photostat Certified copy of this judgment, if
applied for, be supplied to the parties expeditiously
upon compliance with all requisite formalities.
[MD. SHABBAR RASHIDI, J.]
58. I agree.
[DEBANGSU BASAK, J.]
