Biplab Das vs State of West Bengal - State

Indira Banerjee, J.—This appeal is against a judgment and order dated 26th May, 2004 passed by the Additional Sessions Judge, 1st Fast Track Court, Cooch Behar in Sessions Case No. 264 of 2002 corresponding to Sessions Trial No. 6(7) 03 whereby the accused appellant has been held guilty and convicted of offence punishable under Section 302 of the Indian Penal Code and an order of sentence dated 27th May, 2004 whereby the accused appellant has been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.4,000/-.

On 19th March, 2002 one Totan Saha lodged a complaint in writing at the Kotwali Police Station stating that the accused appellant, a neighbour had assaulted his maternal uncle, Sudhangsu Saha with a sharp weapon while he was preparing to start his motor cycle, just in front of his house on Silver Jubilee Road. On being assaulted, Sudhangsu fell on the ground. The accused appellant however continued to hit him with the sharp weapon.

The de facto complainant, Totan, his cousin sister and their maid servant Kalpana raised an alarm on seeing the accused appellant assaulting Sudhangsu. However, they did not intervene out of fear.

The incident was apparently seen by many others from surrounding house. The accused appellant fled away towards the west in a bicycle. At the time when the incident took place, Biplab''s elder sister, Baby and his mother were standing on the verandah of their house.

The injured Sudhangsu was taken to hospital where the doctor declared him dead. In the written complaint it is alleged that there was long standing enmity between the deceased and the accused appellant over land.

On the basis of the complaint in writing, Kotwali Police Station Case No. 84 of 2002 was started against the accused, Biplab Das under Section 302 of the Indian Penal Code. In course of investigation, the I.O held inquest over the dead body of the deceased, collected the post mortem report and also arrested Biplab''s mother and his sister.

A few months after the incident the accused appellant, Biplab surrendered in Court. While the accused appellant Biplab was in custody, the Investigating Officer claimed that he had recovered the ''daa'' that is, the sharp cutting weapon with which the accused appellant Biplab had killed Sudhangshu Saha from under the water of a tank on the basis of the statement of the accused appellant Biplab.

The Investigating Officer framed charges against the accused appellant Biplab Das, his mother Sova Rani Das and his sister Ajanta Sarkar under Section 302/34 of the Indian Penal Code. While Biplab Das was only charged under Section 302 of the Indian Penal Code, his mother and his sister were charged under Section 302, Section 109 and Section 34 of the Indian Penal Code. All the accused pleaded not guilty and claimed to be tried.

In course of trial, as many as 20 witnesses were examined on behalf of the prosecution. A ''daa'' (sharp cutting weapon) was exhibited. The formal part of the FIR, statements recorded under Section 164 of the Criminal Procedure Code, Seizure lists, statements of the accused appellant Biplab which lead to the recovery of the weapon, an inquest report, a post mortem report, sketch map of the place of occurrence with index etc. were also exhibited.

The accused were examined under Section 313 of the Criminal Procedure Code. They denied the allegations against them and pleaded not guilty. Initially the accused declined to adduce defence evidence. However, later, at the instance of defence Advocate, a Sub-Inspector of police was examined as Defence Witness 1.

As observed above, twenty witnesses were examined of whom at least four witnesses namely PWs 1, 2, 3 and 4 claimed themselves to be eyewitnesses to the murder.

PWs 1, 2 and 3 are the close relatives of the deceased who lived in the same house as the deceased, the house in front of which the murder alleged took place.

The 4th Prosecution Witness is their former maid servant who at first turned hostile but later supported the prosecution case, when cross-examined by the prosecution.

The Prosecution Witness Nos. 10, 11 and 12 are fishermen who claimed to have recovered the ''daa'' which had allegedly been thrown into a tank by the accused appellant Biplob. Prosecution Witness Nos. 8 and 9 claimed to have witnessed the recovery of the said ''daa''.

The first three Prosecution Witnesses, who claimed to have seen the incident take place are Totan Saha, nephew of the deceased, Chandni Saha, niece of the deceased (brother''s daughter) and Shewli Saha, sister-in-law (brother''s wife) of the deceased. They all stated that they saw the accused appellant Biplab hitting the deceased with a ''daa'' after which he left in a bicycle. They also stated that they had seen the accused appellant''s mother and his sister standing by the side of the place of occurrence and they went inside after the accused appellant Biblab left.

The 4th Prosecution Witness Kalpana Bhattacharya, said she used to work as cook in the house of the deceased. She said that she used to go for work at about 7:30 am in the morning and return at 8:30 p.m. every day. She stated that she knew the accused appellant Biplab who lived in an adjacent house. She stated that she also knew his mother and his sister. She identified the accused in Court. This witness initially said that she did not know anything about the murder, whereupon she was declared hostile and cross-examined by the Public Prosecutor. In cross-examination, however, she stated that she had seen the accused appellant Biplab Das assaulting the deceased with a large ''daa''. She also stated that Biplab''s mother and his sister were standing by the side of the place of occurrence, instigating Biplab saying finish the enemy.

The 5th Prosecution Witness, Mintu Das, a neighbour, said that he had heard that the accused appellant had murdered Sudhangshu. He did not even state who had told him that Biplab had murdered Sudhangshu. The evidence of this witness cannot be relied upon. His evidence is based on hearsay. The 6th Prosecution Witness, Arun Roy''s evidence is not material to the question of guilt of the accused.

The 7th Prosecution Witness, Sudhendu Kumar Saha, brother of the deceased was not an eyewitness. He was in his shop and he stated that he was informed that his brother had been murdered by the accused appellant.

PW 8, Raju Tewari was witness to recovery of the ''daa'' used for the murder. In cross-examination, this witness admitted that he was the accused in a criminal case. He said that he was acquainted with the deceased as the deceased was a close and rich neighbour. He said that he went to the tank from which the ''daa'' was recovered, on his own. He could not say whether the Investigating Officer had taken the statement of Billu that this is the accused appellant at that place. He stated that he had put his signature on the seizure list after reading its content and after being fully satisfied. He denied the suggestion that the fishermen had not taken out the ''daa'' from under the water in his presence. He also denied the suggestion that he was conspiring with the police.

The 9th Prosecution Witness, Ram Nath Singh, is another witness to the recovery of the weapon of murder from the tank. He said that he went to the tank when the police took Billu there. Billu said that he had thrown the ''daa'' with which he had murdered Sudhangsu, into the water. The police then brought some fishermen who found the ''daa'' from under the water. After recovery of the ''daa'' from under the water, the Investigating Officer prepared a seizure list which this witness signed. He identified the accused appellant in Court. This witness was cross-examined at length. He remained unshaken in cross-examination. He stated that about 5 or 6 persons were present at the time of recovery of the ''daa''.

The 10th Prosecution Witness, 92 years of age, stated that he was taken to the tank to search for the ''daa''. He said that he along with others searched the tank. After a thorough search for a considerable period of time, the ''daa'' was recovered. In cross-examination, this witness stated that police personnel went to their locality and called them for the purpose of fishing out the ''daa''. This witness has not specifically stated if the accused appellant was present when the ''daa'' was taken out of the water.

The 11th Prosecution Witness, a fisherman by profession had also been engaged to search out the ''daa'' from under the water. He said that the ''daa'' was first traced out by him. The police gave them Rs.400/- as remuneration for recovery of the ''daa''. This witness also did not say anything about the presence of the accused appellant at the time of recovery of the ''daa''. The 12th Prosecution Witness, another fisherman more or less corroborated what the previous two witnesses had stated.

The 13th Prosecution Witness, a signatory to the seizure list had also heard that Sudhangsu had been murdered by Billu. He stated that he had not witnessed the murder.

The 14th Prosecution Witness, Bhupesh Chandra Das was the scribe who wrote out the complaint on behalf of Totan Saha. He identified the complaint. He however stated that he had heard about the murder. He had scribed the complaint on the instructions of Totan Saha. He was not an eye witness to the murder.

The 15th Prosecution Witness was a witness to a seizure list under which wearing apparel of the deceased has been seized by the police after post mortem.

The 16th Prosecution Witness, Dr. M.M. Chakraborty was the doctor who had conducted the post mortem over the dead body of the deceased. He found sharp cutting injuries as described in his report. There was profuse bleeding from the injury. It appears that there were 13 cuts ranging from 1 inch to 3 inches, most of them were 2 to 3 inches. The cuts were deep. The injuries were caused by heavy and sharp cutting weapon. He opined that the cause of death was due to shock and haemorrhage resulting from the injuries mentioned in his report which were ante-mortem in nature. On showing the ''daa'' which was allegedly recovered from the tank, this doctor opined that the injuries he found might have been caused with that weapon. He stated that the injuries he found were sufficient for causing instantaneous death.

The 17th Prosecution Witness was the Magistrate who recorded the statements of Smt. Kalpana Bhattacharya and Smt. Chandni Saha Roy under Section 164 of the Cr.P.C. He stated that no police personnel or other persons were present in or near his chamber when the witnesses were produced one after the other and at the time of recording of their statements one after the other. He stated that when the statement of one witness was being recorded, the other was not present. He identified the statements which had been taken down in his handwriting.

The 18th Prosecution Witness, Wangdi Dubka, a Constable had taken the body of the deceased for post-mortem and had identified the body before the autopsy surgeon.

The 19th Prosecution Witness, who was Inspector of Police at the Kotwali Police Station stated that he had received the complaint of Totan Saha and started Kotwali Police Station Case No. 84/02 dated 19th March, 2002 under Section 302 of the Indian Penal Code against Biplab Das.

The 20th Prosecution Witness, Sanjay Dutta who at the time of evidence, was In-charge of Mekliganj Police Station was attached to Kotwali Police Station as Town Sub-Inspector at the time of the incident. He stated that he was on evening mobile duty. At that time the duty officer of Kotwali Police Station was Sub-Inspector, M.A. Khan. At about 7.15 he received a telephonic message from MJN Hospital informing him that a dead body had been brought to that Hospital with several cut mark injuries. After receipt of such information, he lodged GD Entry. Thereafter, he went to MJN Hospital and started U.D. Case No. 64/02 dated 19th March, 2002. After start of the U.D. Case, a relevant G.D. was lodged. The U.D. Case was endorsed to him for enquiry. He prepared the Inquest report etc. and thereafter started investigation.

As observed above, the accused appellant, Biplab @ Billu was examined under Section 313 of the Criminal Procedure Code. He denied all allegations.

On behalf of the defence, one Naresh Chandra Das was examined. He proved the entries in a property register relating to Kotwali Police Station Case No. 84 of 2002 dated 19th March, 2002.

In this case, there are three eye witnesses to the incident namely, the first three prosecution witnesses. It is true that these witnesses are related to the deceased. However, the mere fact that these witnesses are related to the deceased, does not render their evidence untrustworthy. It is well settled that conviction may be based on the basis of related witnesses, if their evidence inspires the confidence of the Court.

In this case, all the three witnesses have asserted that the accused appellant assaulted and killed the deceased with a ''daa'' which is a sharp heavy knife and/or chopper. There is no inconsistency or major discrepancy in the evidence of the three witnesses. The 4th Prosecution Witness, Kalpana Bhattacharya, who had at one point of time worked as a Cook in the residence of the deceased was declared hostile. It is not always necessary that the prosecution case must fail, if a witness turns hostile. This view finds support from the judgment of the Supreme Court in Govindaraju @ Govinda v. State By Sriramapuram P.S. & Anr. reported in AIR 2012 SC 1292. On being cross-examined by the prosecution, PW4 also corroborated what the Prosecution Witness Nos. 1 to 3 had deposed. She also stated that the accused appellant had killed the deceased with a ''daa''. The evidence on record reveals that the ''daa'' was recovered from under the water of a pond on the basis of the statement made by the accused appellant. The police had engaged four fishermen/divers to find the ''daa''. Three of them gave evidence in Court. The ''daa'' was recovered in presence of two witnesses. It is true that Prosecution Witness No. 8 did not specifically say that the ''daa'' was recovered in the presence of the accused appellant. However, the 2nd witness, Prosecution Witness No. 9 clearly stated that the ''daa'' was recovered in the presence of the accused.

The order of conviction is not liable to be interfered with. The appeal is dismissed and the conviction is confirmed. The bail granted by the order dated 30.09.2005 is cancelled. The accused appellant be re arrested.

Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.