The State Of West Bengal vs Naban @ Brojo Mohan Hazra
2023 Latest Caselaw 968 Cal

Item No. 70-71



                 IN THE HIGH COURT AT CALCUTTA
                   CRIMINAL APPELLATE JURISDICTION
                           APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
                 And
The Hon'ble Justice Ajay Kumar Gupta


                              D. R. 1 of 2018

                          The State of West Bengal
                                    -Vs-
                         Naban @ Brojo Mohan Hazra

                                   With

                             C.R.A. 66 of 2018

                       Naban @ Brojo Mohan Hazra
                                    -Vs-
                           State of West Bengal.


For the Appellant        :    Mr. Malay Bhattacharyya, Adv.
                              Mr. Subhrojyoti Ghosh, Adv.

For the State            :    Mr. Bibaswan Bhattacharyya, Adv.

Heard on                 :    6th February, 2023.

Judgment on              :    6th February, 2023.


Joymalya Bagchi, J. :-

1.

Appellant was convicted for murdering of his wife and

sentenced to death and to pay a fine of Rs.10,000/-, in default, to

suffer imprisonment for three months.

2. Being aggrieved by the aforesaid judgment and order, he has

preferred the instant appeal. Reference has also been made to confirm

the death sentence.

3. Prosecution case as levelled against the appellant is to the

effect that he had married Namita Hazra thirty years ago. They had two

sons viz., Palash and Kalosona aged about 26 and 24 years

respectively. On 30.06.2007 at about 9.00 A.M. appellant had gone to

the market. He returned around 10.30 A.M. with a boy viz., Bikash Das

(PW3) of Bhagason village. Appellant handed over a table fan to him.

After Bikash left, a quarrel ensued between appellant and Namita over

the issue of giving the table fan to Bikash. Incidentally, a day before

Bimal Ghosh, brother of Namita had come to her matrimonial home. He

pacified the couple. Namita went upstairs while the appellant started

watching television with his brother-in-law, Bimal. Around 11.10 A.M.

appellant went upstairs. A few minutes later, Bimal heard the sound of

a table fan falling. He rushed upstairs and found his sister lying with

bleeding injuries on the bed. Appellant was standing with a bogida

(Scimitar) in his hand. He was wearing only an under pant and had

blood stains on his body. Bimal raised hue and cry. Appellant fled away

from there. Bimal chased him but realising his sister was in precarious

condition went upstairs. Unfortunately, his sister had died. After some

time, Palash, elder son of the couple returned home. Then Bimal went

to the police station and lodged first information report resulting in

registration of Monteswar Police Station Case No.51 of 2007 dated

30.06.2007 under Section 302 of the Indian Penal Code.

4. In the course of investigation, the weapon of offence was

seized. Appellant was arrested and charge sheet was filed. Charge was

framed under Section 302 of the Indian Penal Code. Appellant pleaded

not guilty and claimed to be tried.

5. In the course of trial, prosecution examined 16 witnesses and

exhibited a number of documents. Defence of the appellant was one of

innocence and false implication. In conclusion of trial, trial Judge by

the impugned judgment and order dated 04.01.2018 and 05.01.2018

convicted the appellant for the offence punishable under Section 302 of

the Indian Penal Code and sentenced him to death.

6. Mr. Malay Bhattacharyya with Mr. Subhrojyoti Ghosh,

learned Advocates for the appellant argued none of the witnesses had

seen the incident. Presence of PW1 at the residence of the appellant is

unlikely. He is an interested witness. PWs5 and 7 are post occurrence

witnesses. FSL report does not confirm the presence of human blood on

the weapon of offence i.e. bogida (Scimitar). Hence, prosecution case

has not been proved. Imposition of death sentence is wholly

disproportionate and not justified in the factual matrix of the case.

7. On the other hand, Mr. Partha Pratim Das, learned Advocate

for the State submits PW1 was present in the house when the incident

occurred. Hearing hue and cry, he went upstairs and saw the appellant

standing with a bogida (Scimitar). He had bloodstains on his body.

Soon thereafter, he fled. His deposition is corroborated by PWs5 and 7,

who are nieces of the appellant. He further submitted neighbours i.e.

PWs8 and 9 corroborated the prosecution case. Soon after the incident,

appellant rushed to the residence of PW9 with bloodstains. PW9 saw

the appellant at koltala (beside a tap). Thereafter, the appellant fled

away from the village. He was seen by PW13. Appellant had snatched a

gamcha from him. PW11, post mortem doctor proved the post mortem

report. Extensive sharp cutting injuries were found on the head and

neck of the deceased which corroborated the prosecution case.

Conviction and sentence of the appellant is to be upheld.

8. PWs1, 5 and 7 are the most vital witnesses.

9. Bimal Chandra Ghosh (PW1) is the brother of the deceased.

He had come to his sister's matrimonial home the day before i.e.

29.06.2007. On 30.06.2007 his sister's husband i.e. the appellant went

to the market at 7.00 AM. He returned around 10.00 AM with one

Bikash Das. He gave a table fan to Bikash Das. A quarrel ensued

between the appellant and his sister. He settled the quarrel. He took

away the appellant and both of them started watching T.V. In the

meantime, his sister went upstairs. At 11.10 A.M. the appellant left the

room. Suddenly, he heard the sound of a table fan falling. He went

upstairs and saw his sister lying in front of telephone in bleeding

condition. Appellant had a bogida (Scimitar) in his hand. On seeing

him, appellant went downstairs. He raised hue and cry. Nieces of the

appellant came to the spot. Appellant kept the bogida in the house and

ran away. Villagers saw him running away wearing only an underwear.

Other people as well as son of the deceased also came to the spot

thereafter. He went to the police station and lodged first information

report. He signed on the inquest report. Police seized the weapon of

offence i.e. 'da', wearing apparels of his sister and bloodstained bed

sheet. He signed on the seizure list. He identified the articles in Court.

He was cross-examined at length but remained unshaken with regard

to material particulars.

10. PWs.5 and 7 are the nieces of the appellant.

11. Rituparna Hazra @ Debjani (PW5) deposed that the appellant

was her elder Jathamoshai (elder uncle). She was in the house around

10.00 to 11.00 A.M. on 30.06.2007. Bikash Das (PW3) came to the

house and took a table fan. An altercation ensued between the

appellant and his wife. She separated them. Victim went upstairs to

call his elder son. Appellant followed him. She again intervened.

Appellant came down and started watching T.V. with Bimal Mama

(PW1). Then PW5 went out of the house. She suddenly heard a sound

and informed Bimal Mama. They went upstairs and saw the appellant

coming downstairs. He had bloodstains on his body. He was carrying a

bogida (Scimitar). They rushed upstairs and found the victim lying in

bleeding condition.

12. Kuheli (Hazra) Chattopadhyay (PW7) is the another niece of

the appellant. She was in an adjoining house at the time of the

incident. Hearing shouts she came to the house and saw the appellant

was standing with a bloodstained bogida (Scimitar). He was wearing an

underwear. He had bloodstains on his body. Bimal Mama told her that

appellant had committed murder. Bimal Mama tried to catch the

appellant but he failed.

13. Bikash Das (PW3) deposed he had come to the residence of

the appellant at 10.00 A.M. He took away the table fan on rental basis.

Subsequently, he heard that appellant had murdered his wife with

bogida (Scimitar).

14. Sabyasachi Hazra (PW2) is the son of the victim. He is a post

occurrence witness. He deposed at 11.30 A.M. Debjani (PW5) came on a

cycle and informed him that his father had assaulted his mother with a

bogida (Scimitar). He rushed to his residence. He found his mother

lying with bleeding injuries. She had died. After one and half hours, he

went to the police station. His Mama lodged first information report. He

was a signatory to the inquest. Police seized the bogida (Scimitar). He

was a signatory to the seizure list.

15. The aforesaid evidence clearly portrays the genesis of the

incident. On the fateful day i.e. 30.06.2007, appellant had gone to the

market at 9.00 A.M. He returned around 10.00 A.M. Bikash Das (PW3)

also came to his residence. He handed over a table fan to Bikash Das

on rental basis. After Bikash left, a quarrel ensued between the couple

over this issue. Appellant became agitated. Bimal, brother of the

deceased was in the house. He pacified the appellant and made him

watch television. In the meantime, the victim went upstairs presumably

to make a phone call to his son. Around 11.10 AM., appellant went

upstairs. Soon thereafter, Bimal heard sound of a fan falling. He rushed

upstairs and found the appellant standing with a bogida (Scimitar) in

his hand. He had bloodstains on his body. He was wearing only an

underwear.

16. Learned Advocate for the appellant contended presence of

Bimal at the place of occurrence is unlikely. He is a relation of the

deceased and an interested witness. The submission is of little

substance. Bimal is the brother of the deceased. He explained on

29.06.2007 he had come to her residence. His version with regard to

the incident is corroborated by none other than the relations of the

appellant himself. PWs.5 and 7 are the nieces of the appellant. PW5

was present in the house when quarrel started between the couple. She

had separated them and thereafter appellant started watching

television with his brother-in-law Bimal. At that juncture, PW5 left the

house. Soon thereafter, she heard a sound and rushed back and saw

the appellant was standing with a bogida (Scimitar) in his hand. His

body was bloodstained. Another niece (PW7) also corroborated the

aforesaid version.

17. It is true there are minor discrepancies in the manner in

which the witnesses went upstairs and saw the appellant standing with

a bloodstained bogida (Scimitar). However, such discrepancies are

minor and do not affect the crux of the prosecution case that the

appellant was seen standing with a bogida beside his wife's mutilated

body. He had bloodstains on his body too.

18. Evidence of the aforesaid witnesses are corroborated by

neighbours too. Sanat Kumar Ghosh (PW9), a neighbour deposed

around 11/11.30 A.M. appellant came to his house bare bodied

wearing only an underwear. He had bloodstains on his body. He called

PW8 who corroborated his version in Court. Soon thereafter, appellant

was seen rushing away from the village by Khudiram Ghosh (PW13). He

stated that the appellant who was bare bodied had snatched a gamcha

from him.

19. Ocular version of the witnesses is corroborated by the medical

evidence on record. Dr. Abhirup Mandal (PW11) and Dr. Kabita Roy

(PW12) held post mortem over the body of the deceased. They found the

following injuries.

".... One sharp cutting injury on the lower back portion of the head extending neck upto right side. The bond was cut and brain matter was exposed. It was 6" long and bone deep. Injury also deep and sharp-cutting, found in the name of the neck measuring 4" x 2", the third injury was extending right scapula margin and the 4th injury, (sharp cutting) on the right dorsal outer aspect on right hand extending from elbow to wrist joint. Bone was exposed."

They opined death was due to shock and hemorrhage ante mortem and

homicidal in nature. PW11 further held that the injuries could be

caused by a sharp-edged weapon like bogida (Scimitar). The post

mortem report was exhibited as Ext.6.

20. PW16, SI, Dayal Prasad Tewari is the investigating officer. He

came to the place of occurrence. He prepared inquest over the dead

body. He seized bed sheet and the weapon of offence. He prepared

seizure list, Ext.3/2. He sent the seized articles for FSL examination.

He arrested the appellant and submitted charge sheet. After obtaining

FSL report, he submitted supplementary charge-sheet.

21. It is argued that the recovery of seized weapon is doubtful

and the FSL report is inconclusive. PW1 stated the appellant while

fleeing had left the bogida (Scimitar) behind. His deposition

corroborates the recovery of bogida (Scimitar) from the place of

occurrence. The seizure was witnessed by PWs.1 and other witnesses.

In view of the overwhelming evidence on record, failure to produce FSL

report to prove presence of human blood on the seized weapon cannot

be a ground to improbabilise the ocular version of the prosecution

witnesses.

22. It may not be out of place to note the appellant had during

his examination under Section 313 of the Code of Criminal Procedure

admitted the substantive parts of the prosecution case. He stated that

the seized saree belonged to his wife and bogida (Scimitar) (weapon of

offence) also belonged to them. He also admitted he was seen by P.Ws.

9 and 13 while he was running away.

23. From the aforesaid evidence on record, I am of the opinion the

prosecution case has been proved beyond doubt.

24. Learned Trial Judge has imposed death sentence upon the

appellant. While doing so, he stated that the murder was conducted in

a brutal manner and demonstrated exceptional depravity. The

appellant had killed his wife in a cool and calculated manner and had

fled away from the place of occurrence.

25. In Bachan Singh vs. State of Punjab1, the Hon'ble Apex

Court held life imprisonment is the rule and death sentence is the

exception. It observed as follows:-

"209. ... Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency -- a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide- lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

(emphasis supplied)

26. In Machhi Singh vs. State of Punjab2, the Apex Court held

prior to imposing death sentence, the Court must answer the following

questions:-

"39. ...

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum

(1980) 2 SCC 684

(1983) 3 SCC 470

weightage to the mitigating circumstances which speak in favour of the offender?"

27. Section 354(3) Cr.P.C. enjoins upon the Court the solemn

duty of recording "special reasons" to depart from the rule and impose

the exceptional and irreversible death sentence. To do so, the Court

must come to a finding that the case falls in the "rarest of rare

category". A balance sheet of aggravating and mitigating circumstances

must be drawn to come to such conclusion. One ought not categorise a

case in the "rarest of rare category" merely by adverting to the brutality

or heinousness of the crime. Only upon a balanced appreciation of

aggravating and mitigating factors which relates not only to the crime

but to the criminal also such a conclusion may be drawn.

28. The prosecution must also by leading cogent evidence

establish that the convict has no possibility of being reformed or

rehabilitated.

29. In Santosh Kumar Satishbhushan Bariyar vs. State of

Maharashtra3 the Apex Court lamented the propensity of trigger happy

judges to impose death penalty merely by referring to the brutal and

heinous nature of crime and held as follows:-

"71. It has been observed, generally and more specifically in the context of death punishment, that sentencing is the biggest casualty in crimes of brutal and heinous nature. Our capital sentencing jurisprudence is thin in the sense that there is very little objective discussion on aggravating and mitigating circumstances. In most such cases, courts have only been considering the brutality of

(2009) 6 SCC 498

crime index. There may be other factors which may not have been recorded.

72. ...The test which emanates from Bachan Singh [(1980) 2 SCC 684] in clear terms is that the courts must engage in an analysis of aggravating and mitigating circumstances with an open mind, relating both to crime and the criminal, irrespective of the gravity or nature of crime under consideration. A dispassionate analysis, on the aforementioned counts, is a must. The courts while adjudging on life and death must ensure that rigour and fairness are given primacy over sentiments and emotions."

30. In the present case, learned Judge has merely adverted to the

gravity of the offence and completely lost sight of the mitigating

circumstances emerging from the evidence on record. His conclusion

that the offence was committed in a cool and calculated manner is a

misnomer. There is evidence galore that on the fateful day there was a

heated quarrel between the couple over the appellant handing over a

table fan to one Bikash on hire basis.

31. This had enraged the appellant and he acted in an impulsive

manner. No doubt he hit his wife repeatedly with a sharp cutting

weapon causing instantaneous death. But the offence cannot be said to

have been a pre-planned one and executed with a cool and clinical

mind. It was a crime which was committed in an insane moment of

anger and impulsiveness. These circumstances would not persuade this

Court to come to a conclusion that the appellant is a hardened

inveterate criminal who has no prospect of rehabilitation and

reformation. Alternate course of life imprisonment for him is certainly

not foreclosed and the imposition of death penalty is wholly

unwarranted.

32. For the aforesaid reasons, we set aside the sentence of death

and direct that the appellant shall suffer rigorous imprisonment for life

and pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment

for two years more.

33. The appeal is accordingly dismissed.

34. The death reference is accordingly answered.

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

be forthwith sent down to the trial Court at once.

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

be made available to the appellant within a week from the date of

putting in the requisites.

I agree.

(Ajay Kumar Gupta, J.)                                  (Joymalya Bagchi, J.)




as/sdas/PA