Ibrahim Naskar Alias Kebla vs State Of West Bengal
2023 Latest Caselaw 486 Cal

Sl. No. 40




                 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

                               C.R.A. 64 of 2019
                                      with
                                CRAN 1 of 2022

                           Ibrahim Naskar alias Kebla
                                     -Vs-
                              State of West Bengal


For the Appellant :            Mr. Sandipan Ganguly, Sr. Adv.
                               Mr. Arijit Bhusan Bagchi, Adv.


For the State        :         Mr. Saswata Gopal Mukherji, ld. P.P.
                               Mr. Rudradipta Nandy, Adv.
                               Mrs. Sonali Das, Adv.

Heard on              :        17.01.2023


Judgment on           :        17.01.2023


Joymalya Bagchi, J.:-


1.

Appeal is directed against the judgment and order dated

27.09.2018 and 28.09.2018 passed by the learned Additional

Sessions Judge, Baruipur, South 24 Parganas in Sessions Trial No.

15(9)/2011 arising out of Sessions Case No. 08(12)/2009 convicting

the appellant for commission of offence punishable under Section 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 rigorous imprisonment for one year more.

2. Prosecution case alleged against the appellant is to the effect

that on 23.09.2008 the appellant who is the elder brother-in-law of

the victim Sarbanu Bibi had put his hand inside her room through a

window. When Sarbanu enquired, appellant gave her bad proposals.

He also threatened her not to disclose the incident to anyone. But

next morning Sarbanu disclosed the incident to her sister-in-law,

Momtaz Bibi (PW 5). This enraged the appellant.

3. In the evening of that day i.e. 24.09.2008 when Sarbanu had

gone to the pond to wash rice, appellant accosted her. He hit on her

head with a brick. She fell down. Thereafter, he again hit her a

number of times. As a result she suffered bleeding injuries and died.

4. Rehena Laskar, sister in law of the appellant (PW 1) lodged

written complaint against the appellant resulting in registration of

Baripur Police Station Case No. 846 dated 24.09.2008 under Section

302 of the Indian Penal Code. Appellant was arrested.

5. In conclusion of investigation, charge-sheet was filed. Charge

was framed against the appellant under Section 302 of the Indian

Penal Code. He pleaded not guilty and claimed to be tried.

6. In the course of trial, prosecution examined fifteen witnesses and

exhibited a number of documents. In conclusion of trial, learned trial

Judge by the impugned judgment and order dated 27.09.2018 and

28.09.2018 convicted and sentenced the appellant, as aforesaid.

7. Learned Counsel for the appellant submits there was family

dispute over property between the appellant and his cousins. They

were inimical and have falsely implicated him. It is further contended

that the victim may have suffered accidental fall and died. No witness

from the locality had been examined. Even if the prosecution case is

believed, it is contended incident occurred in the course of a sudden

quarrel and the appellant did not intend to murder the victim.

8. Learned Counsel for the State submits PWs. 1, 2, 3, 4 and 5 are

eye-witnesses. They are all related to the appellant as well the

deceased. Plea of enmity over property has not been proved. Their

ocular version is corroborated by the injuries noted in the post

mortem report. Hence, the appeal is liable to be dismissed.

9. PW 1 (Rehena Laskar) is the de facto complainant. She is the

sister-in-law of the appellant. She deposed that the incident had

taken place beside the pond adjacent to the house of Sanat Naskar.

Hearing hue and cry, she went to the place of occurrence and saw

that the appellant hit the victim on her head with a brick. Appellant

continued to hit the victim repeatedly. Victim died at the spot. She

lodged written complaint. In cross-examination, she stated there was

a partition of property between the appellant and her family. She,

however, denied there was dispute over such issue.

10. PW 2 (Sajeda Bibi) is the aunt of the appellant. She corroborated

PW 1. She stated the appellant had hit Sarbanu with a brick on the

head. After she had fallen he continued to hit her repeatedly. When

PW 2 cried for help appellant threatened her.

11. PW 3 (Bilkis Bibi) is another sister-in-law of the appellant. She

stated the appellant was intoxicated and had hit the victim repeatedly

resulting in her death.

12. PW 4 (Najrul Naskar) corroborated the aforesaid witnesses.

13. PW 5(Momtaz Bibi) is also a sister-in-law of the victim. She

deposed in the morning of 24.09.2008 the victim told them that the

appellant had put his hand inside her room. When she enquired the

appellant gave her bad proposals. He also told her not to disclose the

incident to any one. As Sarbanu disclosed the incident to PW 5 and

others, appellant got enraged. In the evening he assaulted Sarbanu

with a brick on the head repeatedly. As a result she died.

14. PW 5 is corroborated by PW 6 (Hasnabanu Bibi) who claimed

that she heard the incident from the former. Other witnesses viz.

PWs 7, 8 and 9 are post occurrence witnesses. They heard the

incident from others.

15. PWs 10, 11 and 12 (husband of the deceased) are signatories to

the inquest.

16. PW 13 drew up the F.I.R.

17. PW 15 is the investigating officer.

18. Learned Counsel for the appellant submits depositions of the

eye-witnesses are contradictory to one another. PW 2 claimed that

the appellant had thrown the brick in the pond but PW 7 stated he

saw the appellant standing at the place of occurrence with a brick.

Presence of Jakir Laskar i.e. husband of the deceased (PW 12) was

noted by PW 3 at the time of occurrence but Jakir claimed he came to

the spot after the occurrence.

19. The aforesaid discrepancies are minor and do not affect the

unfolding of the prosecution case. PWs 1 to 5 are eye-witnesses. They

have consistently deposed the manner in which the appellant had

accosted the victim and repeatedly assaulted her with a brick on the

head. Their ocular version is corroborated by the post mortem report

which has been exhibited as Exhbt 9. I find five lacerated injuries on

various parts on the head of the deceased. Internal hematoma

including fracture of nasal bone, mandible and teeth are also noted.

This clearly establishes the prosecution case of repeated assault by

the appellant on the victim's head with a brick.

20. Motive to commit the crime has also been proved. PW 5 claimed

that appellant had misbehaved with Sarbanu on the previous night.

He told her to keep quiet but she disclosed the incident to her and

others. This enraged the appellant who brutally murdered her in the

evening.

21. I am also unable to accept the submission that the offence may

be altered to culpable homicide not amounting to murder. Appellant

had motive to commit the crime. He had misbehaved with the victim

on the previous night. As she disclosed the incident to others, he

accosted her near the pond and brutally hit her on the head. When

she fell down he continued to hit her repeatedly with a brick.

Repeated assaults on the victim is proved by the large number of

external and internal injuries on her head. These circumstances

clearly establish the intention of the appellant to commit the murder.

22. In the light of the aforesaid discussion, I uphold the conviction

and sentence of the appellant.

23. The appeal is, accordingly, dismissed. In view of dismissal of the

appeal connected application is also dismissed.

24. 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.

25. We are informed that the appellant has undergone

imprisonment for more than 14 years. He does not have criminal

antecedents. Under such circumstances, if the appellant makes an

application for remission of sentence under Section 432 read with

Section 433A of the Code of Criminal Procedure, appropriate

authority shall consider his prayer in the light of the aforesaid

observations and other attending circumstances including his

conduct in the correctional home.

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

be forthwith sent down to the trial court at once.

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

made available to the appellant upon completion of all formalities.

I agree.

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




Sdas/PA