Biswajit Mudi vs The State Of West Bengal
2023 Latest Caselaw 3231 Cal

                                   1

                             CRA 220 of 2020


                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
              And
The Hon'ble Justice Md. Shabbar Rashidi

                           CRA 220 of 2020
                                 With
                        IA No.:CRAN 2 of 2022

                            Biswajit Mudi
                                  Vs.
                       The State of West Bengal



For the Appellant       :Mr. Aniket Mitra, Ld. Amicus Curiae


For the State           : Mr. Sudip Ghosh, Ld. Sr. Government Advocate
                          Mr. Bitasok Banerjee, Ld. Advocate


Hearing concluded on    : May 8, 2023
Judgment on             : May 8, 2023


DEBANGSU BASAK, J.:-



1.

Police received a complaint from prosecution witness

(P.W.) 2 dated September 27, 2011 on the basis of which,

Goaltore Police Station FIR No.89/11 dated September 27,

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2011 under Section 302 of the Indian Penal Code, 1860 was

initiated.

2. In the written complaint, P.W.2 stated that, on

September 27, 2011 in the morning at about 9 am when she

along with her mother-in-law, the victim, were going to pluck

the "Sal" leaves, she was little ahead. She suddenly heard the

sound of shoes, turned back and saw the appellant attacking

the victim with a sharp cutting weapon, striking on the throat

with the sharp cutting weapon holding fist of hairs. She tried

to stop the appellant. The appellant also tried to kill her. She

then fled towards the village using alternate path and

informed at home. After getting the news, some villagers came

and saw the beheaded body of the victim lying inside the

jungle.

3. Police conducted the investigations with regard to such

FIR and submitted a charge sheet. Charge under Section 302

of the Indian Penal Code, 1860 was framed as against the

appellant on September 10, 2014. The appellant pleaded not

guilty to such charge and claimed to be tried at the trial.

CRA 220 of 2020

4. The case of the prosecution was that, the appellant at

around 9 am at Hamargorah jungle under Goaltore police

station, District- Paschim Medinipur attacked the victim with

a sharp cutting weapon when she went there with her

daughter-in-law to collect "Sal" leaves. The appellant chopped

the head of the victim with the sharp cutting weapon and left

the chopped off head by the side of a water body nearly 100

metres away from the place of attack. The appellant,

therefore, committed murder of the victim.

5. In order to bring home the charge, the prosecution

examined thirteen witnesses and relied upon various

documentary and material evidences.

6. On conclusion of the evidence of the prosecution, the

appellant was examined under Section 313 of the Code of

Criminal Procedure, where he claimed to be innocent and

falsely implicated. He wanted to adduce defence witness.

7. The defence examined D.W.1. D.W.1 is a neighbour of

the appellant. In his evidence, he stated that, on the date of

the incident, he was ploughing his land. The appellant was

also ploughing his land at the material point of time. In cross-

CRA 220 of 2020

examination, he, however, stated that, he did not tell the

police that, he was ploughing his land at the relevant time and

that, the appellant was also doing so. He made that statement

for the first time in Court.

8. By the impugned judgment of conviction dated August

26, 2020, the learned Trial Judge found the appellant to be

guilty under Section 302 of the Indian Penal Code, 1860. By

the impugned order of sentence dated September 8, 2020, the

appellant was sentenced to suffer rigorous imprisonment for

life with a fine of Rs.20,000/- for the offence punishable under

Section 302 of the Indian Penal Code, 1860 and in default to

pay the fine, to undergo simple imprisonment for another six

months.

9. Learned Amicus Curiae submits that, there is no eye-

witness to the incident. According to him, although, P.W.2

claims herself to be an eye-witness, she did not see the

entirety of the incident.

10. Learned Amicus Curiae submits that, P.W.1 and 7 were

declared hostile by the prosecution. The evidence of P.W.1

and 7 did not implicate the appellant.

CRA 220 of 2020

11. Learned Amicus Curiae submits that, other prosecution

witnesses being P.W.4,5,6,8 and 9 gave evidence which are of

hearsay in nature. No conviction can or should be based upon

their testimonies.

12. Learned Amicus Curiae submits that, although the so-

called murder weapon was seized, the same was not produced

at the trial. Postmortem doctor was not shown the alleged

murder weapon. He refers to the cross-examination of the first

Investigating Officer in such respect. Therefore, according to

him, the prosecution failed to establish the charge as against

the appellant beyond reasonable doubt.

13. Learned advocate appearing for the State submits that,

P.W. 2 is an eye-witness to the incident. He refers to the

testimony of P.W. 2. He submits that the testimony of P.W. 2

gave a vivid description of the victim being murdered by the

appellant.

14. Learned advocate appearing for the State refers to the

deposition of P.W. 10 who is the postmortem doctor. He also

refers to the postmortem report. He submits that the

postmortem report and the testimony of the postmortem

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doctor corroborate the eye-witness version given by P.W.2. He

submits that the quality of the evidence of the prosecution is

sufficient to sustain the charge as against the appellant.

15. Learned advocate for the State also refers to the

deposition of P.W. 11 who witnessed the recovery of the

offending weapon and by whom the offending weapon was

marked as a material exhibit. He also refers to the testimony of

the first Investigating Officer, being P.W.13.

16. Learned advocate for the State submits that the

prosecution was able to establish the charge as against the

appellant beyond reasonable doubt and, therefore, no

interference is called for by the appeal Court.

17. P.W.1 was declared hostile by the prosecution. In cross-

examination by the prosecution, P.W. 1 stated that, the police

interrogated him on September 27, 2011. Thereafter, he

denied every suggestion put to him by the prosecution. Cross-

examination was declined. P.W.1 did not add any value to the

case of the prosecution.

18. P.W.2 is the maker of the complaint. She is the

daughter-in-law of the victim. She narrated that, she along

CRA 220 of 2020

with the victim went to the Hamargora jungle for plucking

"Sal" leaves. The victim was behind her. When she heard the

sound of footwear, she looked behind and found the appellant

coming and running towards the victim. The appellant caught

hold of the victim by her hair. The appellant used a sharp

cutting weapon for beheading the victim. P.W.1 left the place

through other way and reached her residence. Thereafter, she

informed the incident to her family members and villagers.

Her husband was not in residence. When he returned home,

he was informed about the incident. Thereafter, the matter

was informed to the police station. Police visited the spot and

found the body without head. After searching, the head was

recovered from a bush at a distant place at a jungle. She

identified the written complaint submitted with the police.

She identified the scribe of the complaint. The written

complaint was tendered in evidence and marked as Exhibit-1.

She identified the appellant in Court. P.W.2 was cross-

examined in detail by the defence. The defence could not

extract anything favourable from such detailed cross-

examination of P.W.2.

CRA 220 of 2020

19. P.W.3 is the husband of the P.W.2 and son of the victim.

P.W.3 is not an eye-witness to the incident. He is a post-

occurrence witness. He said that, he went to the jungle and

found the victim, his mother, lying on the earth without head.

He described how they tried to trace out the head of the

victim. He described the persons who came to the place of

occurrence. P.W.3 witnessed the inquest. His signatures were

marked as Exhibits-2/1 and 3-1. He identified the appellant

in Court.

20. P.W.4 is also a post-occurrence witness. He stated that,

P.W. 2 came back to the village and informed the villagers

about the incident. He corroborated that, P.W. 2 stated that,

the appellant used a sharp cutting weapon to murder the

victim. He stated that, the villagers reached the place of

occurrence and found the victim lying without the head. He

described that they followed the blood mark of the dead body

to the place where the head of the victim was recovered from

the side of a water body within a bush. He identified the

appellant in Court.

CRA 220 of 2020

21. P.W.5 corroborated P.W.4 with regard to the conduct of

P.W.2. He is a seizure list witness. He tendered his

signatures in evidence which was marked as Exhibits-4/1 and

7/1. He identified the appellant in Court.

22. P.W.6 is the hearsay witness. He identified the appellant

in Court. P.W.6 did not add any value to the case of the

prosecution.

23. P.W.7 was declared hostile by the prosecution. She,

however, identified the appellant in Court. On cross-

examination by the prosecution after she being declared

hostile, P.W.7 denied the suggestions put to her.

24. The another son of the victim deposed as P.W.8. He is

the scribe of the written complaint. He stated that, he wrote

the written complaint as per the instructions of P.W.2. He

identified the signature in the written complaint which was

marked as Exhibit-1/1. He is also a witness to the inquest.

25. Another son of the victim deposed as P.W.9. He identified

the appellant in Court. He is a seizure list witness. His

signatures in the seizure list were tendered in evidence and

marked as Exhibits-4/2, 5/2, 6/2 and 7/2. He is also a

CRA 220 of 2020

witness to the inquest report and his signatures thereon were

tendered in evidence and marked as exhibits.

26. The doctor who conducted the post-mortem on the dead

body of the victim deposed as P.W.10. He described the

injuries he found on the dead body. Three post-mortem

reports were tendered by him as the dead body was found in

three parts. The post-mortem reports were marked as

Exhibits-9, 10, 11 and he opined that the injuries noted were

ante-mortem and homicidal in nature. He further opined that

moderately heavy to heavy sharp cutting weapon was used in

causing the murder of the victim. This opinion of the doctor

was not dislodged by the defence in cross-examination.

27. P.W.11 is another witness to the seizure made and the

inquest performed. He identified the sharp cutting weapon

seized which was marked as Material Exhibit-1. He identified

the appellant in Court.

28. The second Investigating Officer deposed as P.W.12. He

submitted the charge sheet.

CRA 220 of 2020

29. The first Investigating Officer deposed as P.W.13. He

narrated about the course of investigations including seizure

of the sharp cutting weapon from the side of the dead body of

the victim. He was cross-examined at great length by the

defence.

30. The victim was found dead on September 27, 2011 at a

jungle in a dismembered condition with her head being found

at a distance under a bush beside a waterbody.

31. Postmortem of the dead body and the body parts of the

victim found at the place of occurrence were held. P.W.10, the

Doctor who conducted the postmortem on the dead body of

the victim opined in his testimony that, the injuries sustained

were ante-mortem and homicidal in nature and such injuries

were caused by a heavy or a heavy sharp cutting weapon.

This opinion of the postmortem doctor was not dislodged by

the appellant despite cross-examination of the postmortem

doctor.

32. P.W. 2 stated in her testimony that, she and the victim

were inside the jungle for the purpose of collecting sal leaves

CRA 220 of 2020

and she was slightly ahead of the victim when she heard

footsteps. She turned around and saw the appellant catching

hold of the hair of the victim and dealing a blow on the throat

of the victim by a sharp cutting weapon. In fact, she saw the

beheading of the victim by the appellant. Victim was found

beheaded from the jungle spoken of by P.W.2.

33. P.W. 2 also stated that, she ran away from the place of

occurrence out of fear and informed her family members and

the villagers. P.W. 4 and P.W. 5 corroborated P.W. 2 that she

informed the villagers and her family members as to the

incident of beheading of the victim by the appellant.

34. Police compliant was lodged by P.W. 2. The written

complaint was tendered in evidence and marked as Exhibit-1.

The scribe of Exhibit-1 being P.W. 8 identified the same in his

testimony.

35. The evidence of P.W.2 is trustworthy and believable.

Despite cross-examination of P.W.2, her testimony was not

demolished by the prosecution. Her testimony stands

corroborated by the medical evidence produced by the

CRA 220 of 2020

prosecution at the trial as well as oral testimonies of post

occurrence witness. We, therefore, do not find any substance

in the contention of the Learned Amicus Curiae that P.W. 2

did not witness the beheading of the victim.

36. We are unable to agree with the contention of the

Learned Amicus Curiae that the murder weapon was not

produced at the trial. Murder weapon was seized by the

police. Both the first Investigating Officer and the P.W. 11,

who witnessed the seizure, stated that, murder weapon was

seized. Murder weapon was marked as material Exhibit-1 on

the testimony of P.W.11.

37. As noted above, P.W.-10, the postmortem doctor stated

that, the injuries inflicted on the dead body were by a heavy

weapon or by a heavy sharp cutting weapon. Material Exhibit-

1 fits the description of murder weapon spoken of by P.W.10

in his deposition.

38. The testimony of D.W. 1, who claimed that he saw the

appellant ploughing his field at the material point of time on

the relevant date, is not trustworthy. He did not speak about

CRA 220 of 2020

such incident to the police at any point of time. His deposition

to such effect was admittedly for the first time in Court. Such

conduct does not inspire confidence. Plea of alibi set up was

rightly rejected by the learned Trial Judge.

39. In such circumstances, we are of the view that the

prosecution was able to establish that the victim was

murdered by the appellant beyond reasonable doubt.

40. In view of the discussions above, we find no ground to

interfere with the conviction of the appellant and the sentence

awarded in respect thereof. We affirm the impugned judgment

of conviction and the order of sentence.

41. A copy of this judgment and order along with trial Court

records be transmitted to the appropriate Court forthwith.

42. Period of detention suffered by the appellant will be set of

from the sentence imposed.

43. CRA 220 of 2020 is, accordingly, dismissed.

CRA 220 of 2020

44. In view of the dismissal of the appeal, nothing survives in

the interim application being CRAN 2 of 2022 which is also

dismissed.

45. Urgent photostat certified copy of this judgment and

order, if applied for, be given to the parties on priority basis on

compliance of all formalities.

(Debangsu Basak, J.)

46. I agree.

(Md. Shabbar Rashidi, J.)

AD/Dd