Bihari Majhi @ Hansda vs State of West Bengal

Aniruddha Bose, J. - This appeal is against a judgment of conviction and sentence of the appellant, Bihari Majhi on the allegation of fratricide. The Additional Sessions Judge, Fast Track Court No. 1, Purulia found him guilty for causing homicidal death of Hazari Majhi, his own brother on 10th February 2004. In the judgment delivered on 13th July, 2004 in Sessions Case No. 111 of 2004 in connection with Sessions Trial No. 31 of 2004 the appellant has been sentenced to suffer rigorous imprisonment for life combined with fine of Rs. 1,000/, in default of payment of which the Trial Court has directed further one month term of simple imprisonment. The date of occurrence of the incident is 10th February 2004 and the case was started on that date itself on the basis of a written complaint made by the widow of the deceased, Ramani Majhi. She has also deposed as P.W. 1 in the trial. Ram Narayan Hati, who was the Officer-in-charge of Arsha police station at the material point of time has been examined as P.W. 13. The incident had occurred within the territorial area of that police station. In his deposition, the P.W. 13 has stated that he had received the written complaint of Ramani Majhi (P.W. 1) scribed by on Gour Kumar (P.W. 5) on 10th February 2014.

In her complaint, the P.W. 1 stated that while her husband was on his way to Panchkiri village for the purpose of winnowing paddy, the appellant was hiding behind the bush of Palash tree, and the place of occurrence has been described as the field of Rathtar. Her complaint is that the accused/appellant had come out and assaulted the deceased with knife, at that location. There were other persons ahead of him, as per the complaint, who on hearing his screams returned and found that Hazari was lying dead bleeding and Bihari the appellant was fleeing away. In course of trial, three individuals, Musni Majhi (P.W. 2), Biswanath Majhi (P.W. 3) and Behari Murmu (P.W. 4) have deposed as eye-witnesses to this act of assault. From the formal F.I.R., which has been made Exhibit ''7'', we find that the time of receiving the information at the police station is 11.45 hours on the same date. In his evidence, the Investigating Officer, Balaram Goswami (P.W. 14) has stated that he had started investigation at 11.45 hours and he had visited the place of occurrence and also raided the house of the appellant. At the place of occurrence, he had prepared the sketch map thereof and held inquest from 13.35 to 15.35 hours. In his cross-examination, he has deposed that he had left the place of occurrence at 16.30 hours. The prosecution case is that the appellant, while fleeing had thrown his ''lungi'' and ''katha'' on Hazari (deceased). This has transpired from the depositions of P.W. 3 and P.W. 4. Two seizure lists were made at the place of occurrence, which have been made Exhibits ''3'' and ''4''. Exhibit ''3'' relates to seizure of a bloodstained katha, which has been described as something like a stitched sheet (chhadore) and a white terricot lungi, also bloodstained. Exhibit ''4'' relates to seizure of bloodstained and controlled earth and wearing apparels, three in number, all bloodstained with piercing knife holes. These wearing apparels, as recorded in the seizure list were of the deceased, as per the statements of the witnesses to the seizure. The third seizure list also includes wearing apparels with which the deceased was clothed. The body of the deceased was taken to the Purulia Sadar Hospital by a constable attached with Arsha police station, Narbahadur Rai (P.W. 11) for post-mortem and these clothes were brought back by him to the police station. The third seizure list (Exhibit 6/1) was prepared there. This seizure list was proved by one Shankar Chandra Dana (P.W. 10), an assistant sub-inspector of police posted at the same police station.

As per evidence of the Investigating Officer (P.W. 14), the seized wearing apparels and other bloodstained articles were sent to the Forensic Science Laboratory (F.S.L) for chemical examination. At the time of trial, however, no report from the F.S.L. was available. The prosecution stand is that they did not receive the report. The post-mortem report refers to multiple scattered incised wounds and abrasions. The autopsy surgeon, Dr. Ajit Kumar Hajari (P.W. 15) opined in the post-mortem report the cause of death to be due to severe shock and hemorrhage as a result of the injuries. Such injuries have been referred to as ante-mortem and homicidal in nature. In the said report, however, against the column "stomach and its contents", the comment "Empty and pale" was endorsed. On this point, certain arguments were advanced on behalf of the appellant, with which we shall deal with later in this judgment. The deposition of the autopsy surgeon was consistent with his opinion contained in the post-mortem report. The prosecution had primarily relied on the evidence of the P.W. 2, P.W. 3 and P.W. 4, who deposed as eyewitnesses. The other witnesses who were examined before the learned First Court were Gour Kumar (P.W. 5), as the scribe of the complaint of the P.W. 1, one Adalat Swarnakar (P.W. 6) as the inquest witness, Maheswar Mandi (P.W. 7) a witness to the seizure in respect of the seizure list marked Exhibit ''4'', Babu Dhan Majhi (P.W. 8), also a witness to the inquest as also two seizure lists (Exhibits ''3'' and ''4'') which were made at the place of occurrence and Surendra Mandi (P.W. 9). The deposition of Surendra Mandi is on hearsay, and not of much relevance so far this appeal is concerned.

Learned counsel for the appellant has sought to point out certain inconsistencies on the question of lodging of the First Information Report as also on the eye-witness account of the incident to raise doubt on the prosecution version of the case. The other points on which he has argued is that the content of the seizure lists were not proved by the witnesses and no chemical examination report was produced to sustain the prosecution case as regards matching of blood which had stained the wearing apparels and the earth with that of the deceased. The P.W. 1, who is the widow of the deceased, is the F.I.R. maker. It was contended on behalf of the appellant that there is no indication in the F.I.R. that it was read over and explained to her. But in her deposition, she has confirmed filing of the complaint and in her deposition she has not stated anything grossly inconsistent with what has been stated in the F.I.R. This omission does not constitute a fatal flaw in the prosecution case. In the F.I.R., however, she did not name P.W. 2, P.W. 3 and P.W. 4 as being witnesses to the incident of assault, though in her deposition she has stated so. In the written complaint, however, she indicated that there were other persons ahead of her husband, who had heard his screams and witnessed the act of assault. Further, in her cross-examination she has stated that she had rushed to the place of occurrence but could not rescue her husband, whom she was following on the fateful morning. The P.W. 2, P.W. 3 and P.W. 4, however, have not stated presence of Ramani (P.W. 1) at the place of occurrence. The P.W. 2 on the other hand in his cross-examination has deposed that they, implying himself, Behari Murmu (P.W. 4) and Biswanath Majhi (P.W. 3) had narrated the incident to the victim''s wife. On the question of lodging of the First Information Report, learned counsel for the appellant has taken us through the deposition of Biswanath (P.W. 3). In his cross-examination he stated, inter alia:-

"On hearing cries of Hazari Majhi we returned to the place wherefrom we heard his cries. Hazari Majhi was in the middle of the road. He was lying dead when we reached that place. All three came rushing together to the P.O. Musui first reached Hazari. Accused Behari fled towards the east. Our village is situated on the southern side of Bulan Bandh. My house is in the midst of the village. House of Hazari and my house are in the same compound. Distance between my house and Bulan Bandh is about 100 yards. After seeing Hazari we returned home. I did not narrate the incident to anyone at home. Myself and Surendra nath Mandi then went to the P.S. on cycle and narrated the incident to the Duty Officer who reduced the same in writing and I put my L.T.I. on it."

This part of the deposition of P.W. 3 was brought to our notice by the learned counsel for the appellant mainly to contend that P.W. 1 ought not to be believed as complaint was made by the P.W. 3 and moreover the complaint of the P.W. 3 has not been referred to or cited. This factor, according to him, generates doubt on veracity of the written complaint of the P.W. 1. The learned First Court has considered the deposition of P.W. 1 and observed, on the aspect of P.W. 1 being an eye-witnesses to incident or occurrence:-

"In the circumstances discussed it is clear that the evidence of PW1 Ramani Majhi is hearsay. But it is evident from her testimony that her husband was on his way to Parkidih for thrashing paddy when he was attacked by his assailant. Her testimony is in conformity with the F.I.R. on all material points."

The learned First Court has anchored its finding of guilt primarily on testimonies of the P.W. 2, P.W. 3 and P.W. 4. All of them have corroborated the place of occurrence and have deposed that they had seen the accused/appellant inflicting injury on the deceased. Both P.W. 3 and P.W. 4 have deposed that the appellant had thrown his ''lungi'' and ''katha'' at the place of occurrence. On behalf of the appellant, submission was made that it was P.W. 2 who came to the place of occurrence first, before the P.W. 3 or P.W. 4 and he only saw the appellant/accused fleeing away. We have gone through his deposition and find that he had also found accused Behari Majhi inflicting blows with knife on Hazari Majhi. They could not be shaken to reflect a contrary stand in their cross-examination. It was sought to be urged on behalf of the appellant that two of these three eye-witnesses were relatives of the deceased, Biswanath (P.W. 3) being his brother-in-law and Behari (P.W. 4) being the sister''s husband of the deceased. But as it is a case of fratricide, these two witnesses are also relatives of the appellant/accused. This argument, it appears, was raised before the learned First Court also and the learned First Court in the judgment under appeal observed:-

"The fact that PWs 3 and 4 are related to the deceased does not make their evidence unworthy of credence. It is settled principle of law that a witness cannot be condemned on the ground of close relation. Rather it provides some guarantee of truth. Nothing has surfaced in their cross-examination to indicate that they were inimical to the accused to depose falsely against him. No suggestion has been given to PWs 1, 2, 3 or 4 that they had falsely implicated the accused in this case due to animus or strained relations. It is on record that accused is the brother of deceased. In the absence of any proof or even suggestion of enmity there is no reason why the complainant party would lodge a false complaint against the accused who is none other than the brother of deceased. Moreover, it is a common experience that the near and dear ones of deceased will never be interested in the punishment of an innocent person sparing the real murderer."

We do not find any flaw in this reasoning of the learned Trial Judge, who has accepted the deposition of the said two eye-witnesses. Moreover, P.W. 2 is not related to the appellant or the victim and the depositions of all the three witnesses have been uniform in describing the act of assault. We do not find any reason to disbelieve their account of the incident.

Turning to the other inconsistencies pointed out by the learned counsel for the appellant, we find that the fact of lodging the complaint has been stated by the P.W. 1 and the written complaint has been proved by Gour Kumar (P.W. 5). The fact of receiving the complaint has also been corroborated by the officer-in-charge of the police station being P.W. 13. In his cross-examination, the P.W. 5 stated that he saw the police at the place of occurrence at about 1.30/1.45 P.M and police instructed him to scribe the complaint. The time of lodging of the F.I.R. as it appears from Exhibit ''7'' is 11.45 hours. The other point to which our attention has been drawn by the learned counsel for the appellant was that in her deposition the P.W. 1 had stated that the deceased had set out for the field on the date of incident after having his meal. The period of occurrence of the offence as recorded in the F.I.R. is 07.00 to 07.30 hours and the distance between the place of occurrence and the residence of the victim appears to be short. We get an idea on distance of the location from the residence of the victim in terms of time it takes to reach the place of occurrence from the deposition of the P.W. 1 in her cross-examination:-

"Mahato Bandh is situated at the end of the village road. It takes half an hour to reach Parkidih from our village. Our house is in the midst of the village. Previously Rath Mela used to held at Rathtanr. Rathtanr is situtated between Parkidih and our village Bulantanr."

It was argued on behalf of the appellant that in such a short period of time the victim could not have had digested the meal and he could not have been in empty stomach. In this regard the evidence of the autopsy surgeon in his cross-examination was brought to our notice in which he has stated:-

"It takes about 4/5 hours normally for the digestion of food that is for the food to pass from the stomach to the intestine. A person''s stomach will be empty if he dies four hours after consuming food. I found the stomach of the deceased empty at the time of holding post-mortem examination."

The other grounds on which the impugned judgment of conviction and order of sentence are assailed, as we have already observed, are that the contents of the seizure lists were not proved and the chemical examination report was not received.

Learned advocate for the State has defended the conviction and sought for dismissal of the appeal. He has argued that the learned First Court had properly applied its mind and found the appellant guilty on considering the evidence and the impugned judgment ought to be sustained.

In this case, cause of death being multiple injuries stands established. It is also established that death was homicidal and the injuries were antemortem in nature. There are three eye-witnesses who have given a uniform picture of the act of assault and two of them have identified the accused (P.W. 2 and P.W. 4) on the dock, while all three of them have named the appellant/accused as the assailant. The conviction being based primarily on eye-witness accounts, the anomalies or inconsistencies to which reference has been made by the learned counsel for the appellant, in our opinion becomes insignificant. The complaint of P.W. 3 to the police as stated in his cross-examination, even if made cannot destroy the F.I.R. of the P.W. 1 or otherwise falsify the prosecution version of the case. Acceptance of the F.I.R. of the P.W. 1, in any event, cannot be prejudicial to the appellant. The fact as to why the victim''s stomach was empty and the nature of evidence of the P.W. 1 describing the act of assault also cannot render the eye-witness account of the assault nugatory, which led to the death of the victim. The defect in proving the seizure list, as pointed out by the learned advocate for the appellant also cannot materially alter the finding of guilt, as the learned First Court came to its finding on the basis of eyewitness accounts and the content of the seizure list was not a factor in the decision making process. Non-supply of chemical examination report of the materials or articles sent to the Forensic Science Laboratory, in our opinion, cannot dilute the quality of the evidence on the strength of which the appellant/accused have been found guilty.

We accordingly sustain the judgment under appeal and dismiss the appeal.

Let the Lower Court Records be sent down forthwith along with a copy of this judgment. A copy of this judgment shall also be made available to the appellant by the learned First Court forthwith.

Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.

Sankar Acharyya, J. - I agree.