Charanjit Sen vs The State of West Bengal

Asha Arora, J—This is yet another sordid incident of a hapless wife being battered to death by her unscrupulous husband on the fateful night of 20th November, 2004.

The appeal at the instance of the accused/appellant is directed against the judgment and order of conviction and sentence dated 6th December, 2006 passed by the Additional Sessions Judge, Fast Track Court - II, Sealdah in Sessions Trial No. 7(4) of 2005 arising out of Sessions Case No. 103(3) of 2005. The appellant has been convicted for having committed an offence punishable under Section 302 of the Indian Penal Code (for short referred to as the I.P.C.) and sentenced to suffer imprisonment for life with a fine of Rs. 10,000/- in default of which to suffer imprisonment for one year for the aforesaid offence.

Prosecution version sans unnecessary details is that the accused Charanjit Sen would often abuse and assault his wife deceased Mantu Sen. There was dispute between them over the ownership of two Matador vehicles which stood in the name of the victim who refused to transfer one of those vehicles in favour of the accused as demanded by him. Accused also suspected the fidelity of his wife. Due to such strained relation, the deceased victim started residing separately at 5/2H Loknath Bose Garden Lane along with her son Sayan Sen (P.W 3) and a daughter Rishika Sen (D.W 1) while accused used to reside at 12/1 Mahendra Roy Lane. It is the further case of the prosecution that despite residing separately, accused would often threaten and abuse the deceased. Finding no other alternative the deceased victim made a written complaint at Topsia Police Station on 17/11/2004. On the date of incident that is, on 20/11/2004 at about 9.30 p.m accused made abusive phone calls to the deceased victim from a telephone booth near his house at Mahendra Roy Lane. Accompanied by her son Sayan Sen (P.W 3) the victim went to the said telephone booth. After some time they met the accused who abused her. The victim then went to Topsia Police Station with her son to report about the matter. On their way back they again met the accused who in course of quarrel threatened to kill the victim. When they approached their old house, accused asked the victim to remain there while he would call his mother to settle the matter. After some time the accused came out from the house with a ''bathi'' and kicked the victim on her belly on account of which she fell down. Accused then inflicted blows at random with ''bathi'' on the victim''s head in consequence of which she sustained severe bleeding injuries and died on the spot.

On the basis of the statement of Sayan Sen (P.W 3), recorded by S.I Proloy Bhattacharya (P.W 26), Topsia Police Station Case No. 139 of 2004 dated 21/11/2004 was initiated under Section 302 of the I.P.C. against the accused/appellant who was arrested on 27/11/2004 from a ''Dhaba'' at Kharagpur in the district of Midnapore (West). Investigation culminated in the submission of the charge-sheet under Section 302 of the I.P.C. against the accused/appellant.

The Trial Court framed charge against the accused for the offence punishable under Section 302 of the I.P.C. Being so arraigned, the accused pleaded not guilty to the indictment and claimed to be tried. To prove the charge against the accused, prosecution adduced oral as well as documentary evidence. As many as twenty-six witnesses were examined and several documents were tendered in evidence on behalf of the prosecution.

The defence of the accused/appellant is complete innocence, outright denial of the prosecution case and false implication. It was suggested to P.W 3 Sayan Sen (son of the deceased victim) in cross-examination that he filed a false complaint at the instigation of Partha Sarathi Das (P.W 7) as there was illicit relation between the deceased and Partha Sarathi Das. It was further suggested to P.W 3 in cross-examination that he made a false complaint against his father with a view to get the whole income from the Matador vehicles. On behalf of the accused, his daughter Rishika Sen has been examined as D.W 1.

After hearing the learned Counsel for the parties and upon consideration of the evidence on record, the Trial Court, by the impugned judgment and order dated 6th December, 2006 convicted the accused for the murder of deceased victim and sentenced him to imprisonment for life and to pay fine of Rs. 10,000/- in default of which to suffer imprisonment for one year for the charge under Section 302 of the I.P.C.

The point for consideration is whether the conviction of the accused/appellant under Section 302 of the I.P.C. is sustainable.

The judgment under appeal stands castigated on manifold counts but before proceeding to discuss the contentions raised at the Bar, let us advert briefly to the evidence led by the prosecution.

P.W 1 Biplabendu Dhar is a Constable attached to the Photography Section of Kolkata Police. He is a formal witness who took photographs of the dead body of deceased as well as that of the weapon of offence as per instruction of the Investigating Officer. P.W 2 A.S.I of police Jaganath Chandra Saha is another formal witness who prepared the sketch map of the P.O as per instruction of the Investigating Officer. P.W 3 Sayan Sen son of the deceased and the accused is an ocular witness. He is also the first informant in this case who testified regarding the incident. In course of his evidence P.W 3 proved the written complaint dated 17/11/2004 (Exhibit 2) of the deceased addressed to the O/C of Topsia Police Station. P.W 4 Dr. Sobhan Kumar Das held post mortem examination on the corpse of deceased. P.W 5 Prosanto Kumar Mohanti is a post occurrence witness. He witnessed the inquest on the dead body of deceased as well as the seizure of the blood stained offending weapon, a carbon copy of the complaint addressed to the O/C of Topsia P.S and a mobile phone. P.W 6 Satyajit Das is another witness to the inquest and seizure. He is also a post occurrence witness. P.W 7 Partha Sarathi Das is also a post occurrence witness. P.W 8 Chittaranjan Das has been examined to depose that he had rented out a room in his house to the accused at Subhas Gram where he resided with his wife Maya. We get from his evidence that 3/4 days prior to the incident Charanjit left his house with his wife Maya and his mother-in-law. P.W 9 Sasanka Kumar Das Gupta is a resident of Subhas Gram through whom a room was let out by Chittaranjan Das (P.W 8) on rental basis to the accused. P.W 10 Sk. Munna alias Chotka is an independent ''chance'' witness who happened to see the incident while returning home along Mahendra Roy Lane at 10.45 p.m on the date of incident. P.W 11 Samir Sen is a resident of Mahendra Roy Lane who knows the accused. His evidence is hearsay. We find from his evidence that on hearing hue and cry he came out of his house at about 11.30 p.m and found the dead body of Mantu Sen lying on the road. He heard from the people that Totan killed her. P.W 12 Pintu Banerjee is another resident of Mahendra Roy Lane who testified in his evidence that he knew Charanjit Sen @ Totan of his locality as well as all his family members. His evidence is hearsay. He testified in his evidence that he came near the library and saw from a distance that a body was lying which he found was that of Mantu Sen. He heard people saying that her husband Totan killed her. P.W 13 Manik Lal Kar is the Sub-Divisional Engineer at Tangra Telephone Exchange. On 04/1/2005 he received one requisition from Topsia P.S inquiring about some telephone numbers with reference to the instant case. He accordingly supplied the information sought for. The relevant document proved by the witness is Exhibit 8. P.W 14 Tapati Sen is the mother of accused who stated nothing in aid of prosecution. She however admitted that Mantu Sen was the wife of accused Charanjit Sen and that Sayan Sen is their son while Rishika Sen is their daughter. P.W 15 Ajoy Paul is an employee of Reliance Infocom Limited. P.W 16 Jayanta Paul is the Deputy Manager System Control Department of CESC, Kolkata. In response to a requisition from the O/C of Topsia P.S in connection with this case a reply was sent by the Manager stating that as per record of CESC there was no interruption of power at premises No. 12/1 Mahendra Roy Lane between 20.00 hrs on 20/11/2004 to 03.00 hrs on 21/11/2004. The said letter of reply has been proved by P.W 16 and marked Exhibit 11. P.W 17 Baleswar Prosad Gupta is the owner of a grocery shop at 11/1 Mahendra Roy Lane. He has testified in his evidence that there is a landline connection in his shop bearing No. 23295137 and he allows the local people to use the phone on payment of charge. We also get from his evidence that accused Charanjit Sen of that area made phone calls from his telephone on 20/11/2004 at about 9.00/9.30 p.m in his presence. The computer print out of the call details produced by prosecution show that on 20/11/2004 two incoming calls were received by phone 3333317683 from the landline No. 3323295137 of P.W 17 at 21.37 hrs and 21.39 hrs. From the evidence of P.W 3 we get that the accused made phone calls on their reliance mobile No. 33317683 on 20/11/2004. It is clear that the evidence of P.W 3 finds support from the testimony of P.W 17 as well as from the computer print out of the call details. P.W 18 Sm. Maya Sen testified in her evidence that accused brought her to a rented house at Subhas Gram where she resided with him. She admitted that there was no marriage between them. P.W 19 Sk. Yuosuf Ali is a cycle rickshaw puller who has been examined as an independent eye witness who happened to see the incident while proceeding towards No. 2 Kabarasthan along Mahendra Roy Lane after dropping a passenger at Bamunpara Bazar Rickshaw stand. P.W 20 Rupen Das is the wife of P.W 21 Pradip Das who is the owner and landlord of premises No. 5/2/H Lokenath Bose Garden Lane where deceased Mantu Sen resided as a tenant with her son and daughter. P.W 20 spoke about the dispute between accused and the deceased over the matador van. She also stated that they did not have good relation with each other P.W 22 Sultan Khan was a driver under deceased Mantu Sen. He has been of no help to the prosecution. P.W 23 Ajoy Kumar Ghosh is an Assistant Director, State Forensic Laboratory who examined the contents of the parcel which were sent to his office in connection with this case and prepared the report (Exhibit 13). P.W 24 Dr. Mrs. Suvra Chakroborty is the Assistant Serologist and Chemical Examiner who on examination of Exhibits 1 to 12 found them to be stained with human blood. P.W 25 Harilal Shaw is yet another resident of Mahendra Roy Lane who has a grocery shop with STD booth there. He testified that on 20/11/2004 accused Charanjit came to his booth at about 9.00 p.m to make phone call and P.W 26 S.I Proloy Bhattacharya is the Investigating Officer of this case.

Referring to innumerable flaws and lapses in the investigation of this case, Mr. Chatterjee, the learned Counsel appearing for the appellant strenuously argued that the statement of P.W 3 Sayan Sen which was recorded by S.I.P. Bhattacharya (P.W 26) and treated as the F.I.R cannot form the basis of the prosecution case. Mr. Chatterjee pointed out that the said statement did not have the endorsement of the O/C of Topsia P.S entrusting S.I.P. Bhattacharya with the charge of investigation of the case. This apart, he (S.I.P. Bhattacharya) proceeded to the P.O on the basis of a telephonic call from an unknown male voice without ascertaining the name of the caller. The inquest was held on the basis of the G.D Entry No. 1821 dated 20/11/2005 without starting any specific case or even an unnatural death case. Mr. Chatterjee further submitted that Regulation 11 of Police Regulations of Calcutta 1968 has not been complied. The F.I.R has been fabricated subsequent to the inquest and post mortem examination. The Investigating Officer was keenly interested in the success of the case so he did everything himself including preparation of the F.I.R. According to the learned Counsel for the appellant, due to the tainted nature of investigation, the evidence led by the prosecution cannot be relied upon. It has also been submitted that the name of the assailant does not figure in the inquest report nor do we find any reference therein to the written complaint dated 17/11/2004 of the deceased. Furthermore, the fourth item in the seizure list dated 21/11/2004 (Ext. 6/2) has been subsequently inserted after preparation of the inquest report. Learned Counsel for the appellant sought to impress upon us that the complaint dated 17/11/2004 (Exhibit 2) and the F.I.R (Exhibit 4/3) were prepared subsequently as an after thought. Therefore these two documents are not worthy of credence. To fortify his submissions Mr. Chatterjee placed reliance on the decision reported in 1974 Supreme Court Cases (Cri.) 837 (Paragraph 53) in the case of Balak Ram versus State of U.P. Reference has also been made to the case of Padmanabhan Vijay Kumar alias Vijayan and two others versus State of Kerala through S.I Trivandrum reported in 1994 Supreme Court Cases (Cri.) 892 (Paragraph 4).

In the first mentioned decision from the relevant paragraph 53 relied upon, we find that there was a second dying declaration alleged to have been made to the Investigating Officer regarding which the Apex Court held as follows: "Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigating Officer." The decision referred is clearly distinguishable on facts from our case in hand. There is no dying declaration of the deceased victim in our instant case alleged to have been made to the Investigating Officer. The second referred judgment is also of no help to the appellant for the simple reason that the facts in the decision cited are in no way similar to our instant case. In the aforesaid judgment in the relevant paragraph 4 relied upon, the Apex Court observed thus: "Since the High Court was upsetting the order of an acquittal, it was expected that it would furnish reasons to show as to how the findings recorded by the trial Court were either perverse or unreasonable and not sustainable on the basis of the material on record. No such attempt was made by the High Court. The opinion of the High Court that the discrepancy with regard to the time of visit of the police officer or the place where the F.I.S was recorded was of no significance or consequence does not appear to us to be correct. The very fact that P.W 15 had stated that whatever he had recorded in the first information report as regards the occurrence was on the basis of the information given to him by the Sub-Inspector and not on the information allegedly furnished to him by P.W 1, would go to show that reliance could not be placed on the said first information statement. The very basis of the prosecution case, therefore, had been rendered doubtful and on account of the tainted nature of the investigation, it would not be safe to rely upon the evidence led by the prosecution, which the trial Court found as not inspiring confidence."

In our case in hand no such serious flaws could be pointed out in the prosecution case. In our present case P.W 26 S.I P. Bhattacharya stated unequivocally in his evidence that at about 11.05 p.m he was in the police station when a phone call was received from an unknown male voice stating that a lady was lying in front of 12/1 Mahendra Roy Lane on the road with profuse bleeding. On the basis of such telephonic information P.W 26 along with O/C and some other Officers and force left for the place of occurrence. The certified copy of the extract from the relevant General Diary dated 20/11/2004 (Ext. 9) corroborates this version of P.W 26. It appears from Ext 9 that the aforesaid fact was diarised as G.D Entry No. 1821 at 23.05 hrs on 20/11/2004. It is also clear from the evidence of P.W 26 that he recorded the statement of P.W 3 Sayan Sen at the place of occurrence. The relevant portion of the evidence of P.W 26 is quoted thus: "As my O/C was present in the P.O and it was a cognizable offence so I recorded the statement and as per order of O/C I started the investigation of the case in the P.O itself." The evidence of P.W 26 regarding the aforesaid fact is corroborated by P.W 3 Sayen Sen. Even P.W 5 Prasanto Kumar Mohanti, a local resident of 12/1 Mahendra Roy Lane and a post occurrence witness testified in his evidence regarding the interrogation of P.W 3 Sayen Sen at the P.O by the Police Officer. Being quizzed in cross-examination P.W 5 affirmed that he saw Sayen Sen being examined by the Police Officer after 10/15 minutes of his arrival. The assertion that the First Information Statement of P.W 3 Sayen Sen was recorded by P.W 26 at the place of occurrence could not be demolished in the cross-examination of P.W 3, P.W 5 and P.W 26. The argument on behalf of the appellant that S.I P. Bhattacharya started the investigation of the case without any endorsement by the O/C is also not sustainable as is evident from the testimony of P.W 26 referred to hereinabove that as per order of the O/C who was present at the P.O he started investigation at the P.O itself. This portion of the evidence of P.W 26 remained unchallenged in cross-examination. Furthermore, from the formal F.I.R (Ext. 8), we find that the case was forwarded to S.I P. Bhattacharya of Topsia P.S for investigation by the O/C under his official seal and signature. There is also no substance in the argument that there was interpolation in the seizure list (Ext. 6/2) by inserting item No. (4) subsequently. On close and careful scrutiny of the seizure list it appears to us that the entire seizure list including the impugned item No. 4 has been prepared and written in the same sitting. This apart, no such suggestion was given to P.W 26 in cross-examination on behalf of accused that item No. 4 of the seizure list was inserted subsequently as an afterthought.

Equally untenable is the contention on behalf of the appellant/accused regarding the inquest report. It is needless to mention that Section 174 of the Criminal Procedure Code is limited in scope and is concerned with the ascertainment of the apparent cause of death of the deceased. The question regarding details as to how deceased was assaulted or who assaulted him or under what circumstances he was assaulted is alien to the ambit and scope of the proceedings of an inquest under Section 174 of the Cr.P.C. The learned Counsel for the appellant failed to impress us with the argument that it was necessary for the Investigating Officer to mention the name of the assailant and to refer to the complaint dated 17/11/2004 in the inquest report. For the same reason there is no merit in the submission that non-mention of the aforesaid details in the inquest report renders the prosecution version doubtful.

Cryptic telephonic information received from an unknown caller by the police officer on duty cannot be treated as F.I.R. It only made S.I P. Bhattacharya along with the O/C and force to rush to the scene of occurrence where P.W 26 S.I P. Bhattacharya recorded the statement of P.W 3 Sayen Sen and on the basis thereof commenced investigation as per order of the O/C who was present there as we get from the evidence of the Investigating Officer. There is no merit in the argument that the First Information Statement of P.W 3 recorded by the Investigating Officer cannot be relied upon simply because it was not written by P.W 3 himself although he was competent to do so. From the evidence of P.W 3 it is clear that his statement was recorded in writing by S.I P. Bhattacharya (P.W 26) whereafter its contents were read over to him and he duly signed on it. No suggestion was given to P.W 3 in cross-examination assailing the First Information Statement (Ext. 4/3) or that no such statement was made by him nor was it suggested to him that the statement was fabricated subsequently by P.W 26 as an afterthought. On the contrary, it was suggested to P.W 3 in cross-examination that he filed a false complaint against his father at the instigation of Partha Das as there was illicit relation between Partha Das and his mother. This suggestion does not show that the accused/appellant disputed the first information statement on the ground that it has been fabricated or concocted by the Investigating Officer for the purpose of this case. It is also well settled that F.I.R need not contain an exhaustive account of the incident. Exhibit 4/3 is the F.I.R in the instant case which contains the essential and relevant details of the incident. The fact that P.W 3 gave a few more details in his testimony does not render his evidence doubtful on the ground that there is improvement or exaggeration. The evidence of P.W 3 is found to be in conformity with the F.I.R on material particulars relating to the incident.

Lapses in the investigation of the case as pointed out on behalf of the appellant are not fatal to the prosecution. It has been well settled by a catena of decisions of the Apex Court that mere faulty investigation cannot be a ground for acquittal of the accused. Effort should be made by Courts to see that criminal justice is salvaged despite such defects in investigation. The conclusion to be reached by the Criminal Court cannot be allowed to depend solely on the probity of the investigation. Even if investigation is illegal or suspicious, the rest of the evidence must be scrutinized independently of the impact of the illegalities in the investigation. In our present case, as already discussed hereinabove, the learned Counsel for the appellant could not persuade us to hold that the investigation was tainted, illegal or suspicious. Therefore the argument on this score does not hold good.

Coming to the three ocular witnesses namely, P.W 3, P.W 10 and P.W 19, learned Counsel for the appellant sought to impress upon us that their evidence is at variance inter se as well as in relation to their statement made before the Investigating Officer under Section 161 of the Cr.P.C. It has further been argued that the presence of P.W 10 and P.W 19 at the scene of occurrence is doubtful. P.W 3 did not mention in his evidence the presence of P.W 19. P.W 10 also did not refer to the presence of P.W 19 at the place of occurrence. It has further been contended that for want of sufficient light at the place of occurrence, identification of the assailant of the deceased victim by these two witnesses was not possible and that there was requirement for T.I Parade in such a case which was not done. Referring to Ext. 16 which is an attested copy of an extract from the Register of Letters Received, it is the submission on behalf of appellant that this document cannot be looked into since a portion of it has been deliberately suppressed while getting it photocopied. It has further been canvassed that P.W 3 cannot be relied upon since he falsely implicated his father at the behest of P.W 7 Partho Sarathi Das who had illicit relation with the deceased. It is also the contention of the learned Counsel for the appellant that if P.W 3 Sayen Sen is relied upon there is no reason to disbelieve the evidence of D.W 1 Rishika Sen who is the daughter of accused and the deceased victim. The further submission on behalf of appellant is that there is no explanation as to why the deceased and her son Sayen Sen went to the place of occurrence on the date of incident. Learned Counsel for the appellant submitted that the post incident conduct of P.W 3 being unnatural belies his evidence. Instead of raising cries on seeing his mother being assaulted, he fled from the place of occurrence.

Another branch of argument advanced on behalf of appellant is that the incident was the outcome of mutual quarrel and the act in question was not premeditated. It was the result of provocation by the deceased victim who went to the locality of the accused and in course of quarrel she provoked the accused. Learned Counsel for the appellant submitted that if the accused intended to kill the victim he would have come armed with a deadly weapon. The ''bathi'' which is handy and found in every household was brought from the house in course of quarrel and used in the heat of moment. According to the learned Counsel for the appellant, the act attributed to the accused would not come within the offence of murder but would constitute a lesser offence under Section 304 of the I.P.C. falling within the provision of Exception 4 to Section 300 of the I.P.C. In support of his argument Mr. Chatterjee relied upon the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra, (2013) 4 ABR 648 : (2013) 9 AD 294 : AIR 2013 SC 2454 : (2013) CriLJ 3044 : (2013) 7 JT 26 : (2013) 2 RCR(Criminal) 1036 : (2013) 6 SCALE 778 : (2013) 6 SCC 770 . Reference has also been made to the decisions reported in Tunu Mondal Vs. State of West Bengal, (2008) 1 CHN 335 in the case of Sukhbir Singh Vs. State of Haryana, AIR 2002 SC 1168 : (2002) 2 Crimes 60 : (2002) 3 JT 345 : (2002) 2 SCALE 244 : (2002) 3 SCC 327 : (2002) 1 SCR 1152 : (2002) AIRSCW 936 : (2002) 2 Supreme 28 , Sudarshan Majhi Vs. The State of West Bengal and 2015 (1) C.Cr.L.R (Cal) 905 in Sankar @ Shib Shankar Shaw versus the State of West Bengal.

As against the above submissions Mr. Gupta, the learned Counsel for the State countered that P.W 10 and P.W 19 being independent witnesses cannot be disbelieved as they had no reason to falsely implicate the accused. As regards the source of light for identification of the accused by these two witnesses, prosecution relied upon what has emerged in the cross-examination of P.W 2 wherein he stated that there are light posts on both sides of the P.O. Besides P.W 2, the evidence of P.W 26 and P.W 16 testify with regard to the existence of street lights at the place of occurrence. Further submission on behalf of the State is that the evidence of P.W 3 is corroborated by P.W 10 and P.W 19 whose presence at the place of occurrence cannot be doubted. It has also been argued that their evidence cannot be viewed with suspicion on the ground of exaggeration or inconsistencies. In support of such submissions learned Counsel for the State referred to the decisions reported in Palwinder Singh and Others Vs. State of Punjab and Others and State of U.P. Vs. Anil Singh, AIR 1988 SC 1998 : (1989) CriLJ 88 : (1988) 3 Crimes 367 : (1988) 3 JT 491 : (1988) 2 SCALE 436 : (1988) 2 SCR 611 Supp . It has also been contended that the written complaint of the victim dated 17/11/2004 (Ext. 2) is admissible in evidence under Section 32(1) of the Indian Evidence Act.

This now leads us to evaluate the evidence of the ocular witnesses. P.W 3 Sayen Sen son of the deceased and the accused testified in his evidence that dispute arose between his parents over the ownership of the two matador vehicles which were in the name of the deceased victim. He further stated that initially his father used to look after the vehicles but since he used to spend money on consumption of alcohol, the deceased took control of both the vehicles. His father wanted one vehicle to be transferred in his name but his mother did not agree to such proposal. We also get from the evidence of P.W 3 that a few days after that his father once threatened to kill his mother. Curiously enough, this part of the evidence of P.W 3 remained unchallenged in his cross-examination. The evidence of P.W 3 further reveals that accused would often quarrel with his mother. He would humiliate and scold her. There was a divorce case pending between them at that time. On 17/11/2004 his mother made a written complaint at Topsia P.S against his father. Two days later on 20/11/2004 they received phone calls from his father on their reliance mobile phone No. 33317683. His father scolded his mother in filthy language over phone. The relevant portion of the evidence of P.W 3 relating to the incident of 20th November, 2004 is quoted thus:

"I told mother that father has been telephoning from the booth close to our old house as I could recognize that number from the mobile number and then along with mother we went to the local booth and my mother scolded the booth owner for allowing father to use their phone as he had been scolding in filthy language. While coming back from the phone booth mother met my father on the way. I was also present there. Mother was scolded by father on the road itself. Then mother told father that she would then go to the P.S and take some steps against father. Then myself and my mother went to the P.S. In the P.S myself and my mother made allegations against father as happened. Mother also took the xerox copy of the letter submitted by her earlier in the P.S. Mr. Bhattacharya, S.I of Police told us that he would take steps in the night. On our way back home we again met father on the road in the Darga Road and there again both my mother and father have quarrel and I accompanied them just walking behind them with my cycle. Then when approached Chittaranjan then mother climbed my cycle and we started moving and I found my father also coming in a rickshaw. Then we were coming towards our old house and the rickshaw of my father came and stood in front of my cycle. My father told my mother to wait there and he would call his mother i.e. my grandmother for a solution of their problem. Saying so father entered the house and mother was standing on the road. I also kept my cycle by the side of the library and came close to mother standing there. I found father coming out of the house with a ''banti'' in his hand. Seeing him with ''banti'' in hand my mother also went out of the lane and came on the road. Father started scolding my mother and kicked her in the belly. Mother fell down on the road. When my mother tried to get up then father assaulted my mother on her head by the ''banti'' of his hand. Mother then fell down on the road facing the road. I found father going on assaulting my mother on her head more than once. Seeing suddenness of the acts I got puzzled for sometime and when I started shouting then father ran towards me with ''banti'' with hand. I then ran towards our local Nazrul School. I hid myself therein and found father going along the road and dropped the ''banti'' on the road and then shouted saying that he has killed his wife Mantu and he was proceeding towards P.S for surrender him then many local people came out but they could not face my father out of fear. The incident took place at about 10.45 p.m in the night on 20/11/2004. I came to my mother and called her but she did not respond. Then one local lady took me to her house. After sometime police came and recorded the statement given by me."

The contents of the First Information Statement broadly and in material particulars conforms to the version of the incident given by P.W 3 in his evidence. The fact that a few more details have been mentioned by him in his evidence does not render his testimony unworthy of credence. P.W 3 successfully withstood the test of extensive and searching cross-examination. He admitted in his cross-examination that Partha Sarathi Das (P.W 7) would visit their house and his mother also used to go to his house. Being quizzed in cross-examination P.W 3 stated that Partha Sarathi Das was a very good friend of his mother and his father (accused) did not like their friendship. The motive for the commission of the offence has been clearly spelt out in the evidence of P.W 3. Nothing could be elicited in the cross-examination of P.W 3 to render his evidence doubtful. P.W 3 stated in his cross-examination that none of the local people saw the incident and it was after his shouting that the local people came. This revelation certainly does not enure to the benefit of the accused/appellant as the learned Counsel canvassed before us. On this count the evidence of the two independent eye witnesses cannot be disbelieved. We cannot lose sight of the fact that P.W 10 and P.W 19 are not local witnesses. They are independent ''chance'' witnesses who happened to pass by the place of occurrence at the relevant time. Being in a state of shock due to the incident, P.W 3 may not have noticed their presence at the P.O. P.W 3 categorically denied the suggestion given to him in his cross-examination that he filed a false complaint against his father at the instigation of Partha Sarathi Das as there was illicit relation between his mother and Partha Sarathi Das. No such suggestion was, however, given to P.W 7 Partha Sarathi Das in his cross-examination. A fallacious suggestion was given to P.W 3 in his cross-examination that his mother was murdered by unknown man and he (P.W 3) wilfully filed this false complaint against his father. It is unreasonable to expect that P.W 3 would falsely implicate his father to protect the real murderer of his mother. We are also unable to accept the argument that the post occurrence conduct of P.W 3 was unnatural. There is no legal principle of universal application as to how a witness will react on seeing an incident of murder. A person may be dumbfounded and may not disclose the incident to others immediately. Some become stunned while some stand rooted to the spot. The same set of reaction cannot be expected from different people in a given situation.

Now let us consider whether in the circumstances of the case it was possible for P.W 10 and P.W 19 to have witnessed the incident and whether there is anything inherently improbable or unreliable in their evidence. P.W 10 Sk. Munna alias Chotka works in a shoe making factory. In his evidence P.W 10 testified regarding the incident in the following manner:

"On 20/11/2004 in the night of Purnima, I was going back to my house along Mahendra Roy Lane at about 10.45 p.m. Near Thakur Pukur Yubak Balak Library I found one man chasing one woman and the man hit the woman in her waist and she fell down by the side of the wall of ''gorsthan''. I found the man assaulting the woman with ''bathi'' in his hand. I could not tolerate it. I took away my eyes from the sight for some moment. I found the lady lying on the road with face facing the ground. I found the man then chased one boy who ran towards the school then the man threw way the ''bathi'' on the road, the woman being injured bled profusely and gradually some persons started assembling there. The man who assaulted the woman put his hands upwards and shouted "I killed Mantu and going to surrender before P.S and the man went towards the school." The witness identified the accused Charanjit in Court as the said assailant. It has surfaced in the cross-examination of P.W 10 that he was walking along Mahendra Roy Lane and the man chased the woman who came through a ''gali'' and then reached Mahendra Roy Lane. It has also emerged in the cross-examination of this witness that at about 9.30 p.m he went to the ''Majar'' to attend a ''Kawali'' and at about 10.40 p.m he left the ''Majar''. Curiously enough, in course of cross-examination of P.W 10 not a single contradiction could be pointed out in his evidence in relation to his statement made before the Investigating Officer under Section 161 of the Cr.P.C. The evidence of P.W 3 is corroborated by P.W 10 on material particulars regarding the incident. He is an independent witness who has no interest in deposing falsely against the accused not known to him previously. In cross-examination no suggestion was given to P.W 10 as to why he would falsely implicate the accused in this case. In fact his evidence remained unscathed in cross-examination. Learned Counsel for the appellant argued that it was not possible for P.W 10 to identify in Court an unknown assailant (whom he had never seen previously) after a lapse of two years and that it was not ''Purnima'' or full moon night on the date of incident. Curiously enough, the evidence of P.W 10 in this regard remained unchallenged in cross-examination. The argument that in the absence of sufficient light it was not possible for the witnesses to identify the assailant is not tenable in view of the evidence of P.W 2 and P.W 16. It has surfaced in the cross-examination of P.W 2 ASI of Police Jaganath Chandra Saha (who prepared the sketch map of the P.O) that there are light posts on both sides of the place of occurrence. He further elucidated that according to the plan made by him the distance from the P.O to the electric light post on the left is about 15 metres away and the right side light post is about 13 and half metres. P.W 16 Jayanta Paul, an employee of the CESC Kolkata categorically stated in his evidence that as per record of CESC there was no interruption of power at the premises No. 12/1 Mahendra Roy Lane between 20.00 hrs on 20/11/2004 to 03.00 hrs on 21/11/2004. This assertion of P.W 16 remained unassailed in cross-examination. Moreover, P.W 26 S.I Prolay Bhattacharya specifically stated in his evidence that there was street light as well as light from near by houses and his testimony in this regard was not challenged in cross-examination. The sketch map of the P.O (Exhibit 1) corroborates the evidence of these witnesses regarding the existence of some houses and shops near the P.O as well as on the point of existence of street lights. It cannot be doubted that there was sufficient light at the P.O to enable the identification of the assailant by the witnesses. There was, therefore no scope for any mistaken identity of the accused.

Coming to the evidence of P.W 19 Sk. Yusuf Ali alias Rajesh, we find that this witness is a rickshaw puller who deposed in harmony with P.W 3 and P.W 10. According to P.W 19, on 20/11/2004 in the night at about 20 minutes to 11.00 p.m he was present at Bamunpara Bazar Rickshaw Stand. He dropped one passenger there and then proceeded towards No. 2, Kabarasthan. He then found one lady running towards No. 2, Kabarasthan along Mahendra Roy Lane. Then he found one man following the lady and the man had a ''bathi'' in his hand. He found the man kicked the lady and she fell down and the man assaulted her with the said ''bathi''. The incident took place about 10 feet away from him and he stopped his rickshaw then and there. P.W 19 further stated in his evidence that the man chased a child and after sometime he left the ''bathi'' on the road. He then started saying that he killed Mantu Sen and was going to the Police Station to surrender. P.W 19 identified in Court the accused as the assailant as well as the seized weapon of offence. Being quizzed in cross-examination P.W 19 affirmed that the man left the ''bathi'' and went away in the direction in which the young boy had fled. On query in cross-examination P.W 19 truthfully admitted that the accused was not known to him but he identified him in Court by his dark complexion and stature. Nothing could be elicited in the cross-examination of P.W 19 to demolish his sworn version of the incident which corroborates the narration of P.W 3 and P.W 10 on all material particulars. During the cross-examination of P.W 19 no contradiction could be pointed out in his evidence in relation to his statement made before the Investigating Officer under Section 161 of the Cr.P.C. The factum of identification of the accused by his dark complexion and stature as stated by P.W 19 is not a contradiction since it has been elicited by way of cross-examination of this witness. P.W 19 is an independent witness who has no axe to grind against the accused. No plausible motive could be assigned to him for deposing falsely against the accused. On the point of exaggeration, omissions and discrepancies in the evidence of the three ocular witnesses as pointed out on behalf of appellant, it is well settled that these features are the hallmarks of truth in contradistinction to the parrot like and stereotyped testimony of a tutored witness. As long as the core of the evidence has a ring of truth Courts can ignore such minor discrepancies and exaggerations. There is therefore no reason to disbelieve the evidence of P.W 3 which is corroborated by the trustworthy evidence of P.W 10 and P.W 19.

Besides the ocular evidence, prosecution version finds support and credence from the post occurrence witnesses namely, P.W 5, P.W 6, P.W 7 and P.W 11 who arrived at the site of occurrence immediately after the incident and found the deceased victim lying in bleeding condition. P.W 5 and P.W 7 have even testified regarding the seizure of the weapon of offence, one mobile phone, one carbon copy of complaint and blood samples in their presence. No motive has been attributed to any of these independent local witnesses for deposing falsely against the accused. It was not suggested to any of these witnesses in cross-examination that they have inimical relation with the accused which had prompted them to depose against him.

The medical evidence of P.W 4 Dr. Sobhan Kumar Das who held post mortem examination on the dead body of the deceased victim is in complete conformity with the ocular evidence with regard to the nature of weapon used, manner of assault as well as the cause of death of the victim. The Medical Officer found eight injuries on the person of deceased including three chop wounds on the head being a vital part of the body. He clearly opined that death of the victim was due to the effects of the injuries noted ante mortem and homicidal in nature. The post mortem examination report proved by P.W 4 is Exhibit 5. In response to a query in cross-examination P.W 4 asserted that such injuries could be caused by sharp cutting weapon but not a straight edged weapon. He categorically ruled out the possibility of such injuries being caused due to fall from above on deposits of scraps or due to accident with a damaged bus and the body being dragged along the road for sometime. This suggestion in cross-examination is futile since it is not the defence case that the death of the victim was due to vehicular accident. The answer given by P.W 4 in cross-examination that such injuries could be caused by sharp cutting weapon but not a straight edged weapon clearly supports the ocular version of the incident regarding the weapon of assault used by the assailant.

Tremendous credence has been lent to the prosecution case by the objective findings of the Investigating Officer (P.W 26) who testified regarding the seizure of one country made ''bathi'' smeared with fresh blood and blood matted hair from the place of occurrence. At this juncture it is significant to mention that as per report of the Serologist and Chemical Examiner the ''bathi'' was found to be stained with human blood. The said report is exhibit 15 proved by P.W 24 Dr. Suvra Chakroborty. P.W 26 also seized a cellphone and a copy of a letter dated 17/11/2004 smeared with blood from the shirt pocket of the victim under a seizure list which is Exhibit 6/2. The seizure of the said items including the weapon of offence by the I.O has been corroborated by two independent local witnesses namely, P.W 5 and P.W 6. For the reasons already discussed hereinbefore, the evidence of the two seizure witnesses is beyond the pale of suspicion.

Though the motive for the commission of the offence assumes significance in a case based on circumstantial evidence, in our present case which is based on direct evidence, motive has been proved through P.W 3 Sayen Sen, P.W 7 Partha Sarathi Das, P.W 11 Samir Sen and P.W 20 Rupen Das who have spoken about the genesis of the occurrence. We have already discussed the evidence of P.W 3 wherein he averred that the dispute arose since his father wanted one vehicle transferred in his name but his mother refused to accede to his demand. Over this issue there were frequent quarrels between the spouses and they started residing separately. P.W 3 has also stated in his evidence that his father once threatened to kill his mother. P.W 7 Partha Sarathi Das stated in his evidence that the accused was his friend and he would often go to his house. It is the categorical assertion of P.W 7 that over the matador business the relation between Charanjit and his wife Mantu Sen got bitter. P.W 7 further stated that in his presence Charanjit assaulted his wife many times. As Mantu used to express her grievance before P.W 7, Charanjit suspected their relationship. He also stated that Mantu Sen told him that once or twice Charanjit came to her new house under the influence of liquor and threatened to kill her. This part of the evidence of P.W 7 remained unchallenged in cross-examination. No contradiction could be pointed out in the evidence of P.W 7 in relation to his statement made under Section 161 of the Cr.P.C. P.W 11 Samir Sen is an independent local witness who testified that there was dispute between Mantu Sen and Charanjit and Mantu lived separately at Loknath Bose Garden Lane with her two children. This assertion of P.W 7 was not assailed in cross-examination. P.W 20 Rupen Das is another independent witness who testified in her evidence that the relation between Mantu and her husband was not good. She further stated that the dispute between them was in relation to the matador vehicle. Nothing could be elicited in the cross-examination of these witnesses to discredit their sworn version. No contradiction could be referred to in the evidence of these witnesses in relation to their statement under Section 161 of Cr.P.C. The evidence of P.W 3, P.W 7, P.W 11 and P.W 20 is corroborated by the letter of complaint of Mantu Sen dated 17/11/2004, (Ext. 2) which is admissible in evidence under Section 32(1) of the Indian Evidence Act. The argument that the complaint dated 17/11/2004 was prepared subsequently and as such cannot be relied upon is not acceptable to us for the simple reason that the Investigating Officer (P.W 26) categorically stated in his evidence that three days prior to 20/11/2004 that is, on 17/11/2004 one letter was received at the P.S from one Mantu Sen, wife of Charanjit Sen making allegation of torture against her husband and that he threatened to kill her. He further stated in his evidence that the O/C of Topsia P.S endorsed that petition to him for enquiry and the same was mentioned in the local petition register with number 658 dated 17/11/2004. Entry No. 658 dated 17/11/2004 in the photo copy of the extract from the relevant register duly certified by the O/C which is exhibit 16 corroborates the testimony of P.W 26. The Investigating Officer also testified regarding the fact that Mantu Sen along with her son Sayen Sen came to the P.S on 20/11/2004 at about 9.30 p.m and showed him the receipt copy of letter dated 17/11/2004 and informed him that her husband Charanjit has been threatening her over phone. The evidence hereinabove discussed convincingly proves the motive for the commission of the offence.

This now brings us to the defence plea sought to be proved through D.W 1 Rishika Das who is the minor daughter of the accused and the deceased. This witness stated in her evidence that she resides at Hatgachia in the house of her aunt Sima Das. The relevant portion of the evidence of D.W 1 is quoted thus:

"On 20/11/2004 I was at Loknath Bose Garden Lane. On that night at about 9.30 p.m mother gave us food and when we were taking food then Partha Sarathi Das came to our house. He asked my mother to come along with him. Mother asked us to go to bed and father told that she would go out of the house with Partha Das. Then we slept. Then in the night about 1.30 a.m someone knocked at our door. I opened the door. One police man called my brother and brother told me to sleep and he left home. The next day brother took me to Cambell/N.R.S Hospital at 1.30 p.m where my aunt told me that my mother died. The relation between my father and brother was bad." She further stated that "there was no dispute between my father and mother as I have not seen any such." It is indeed incredible that a 12 year old child could recollect and narrate with such accuracy and precision an incident including mentioning its date and time after a lapse of two years. At the same time, being quizzed in cross-examination this witness (D.W 1) could not say where her brother Sayen Sen resides nor could she say how her mother died. It is abundantly clear that the evidence of D.W 1 is nothing but a tutored impact. Through D.W 1 accused in vain tried to establish that Partha Sarathi Das took the deceased with him on the date of incident at 9.30 p.m. Interestingly, no suggestion in cross-examination was given to P.W 7 Partha Sarathi Das that he had gone to see the victim in her house at about 9.30 p.m on the date of incident. This apart, no motive has been attributed to Partha Sarathi Das for killing the deceased. Above all, it has emerged in the cross-examination of P.W 7 that he last met deceased Mantu Sen 2/3 days prior to the incident. No suggestion was given to P.W 7 in cross-examination that he met the deceased on the date of incident at night. No suggestion was given to any of the prosecution witnesses that Partha was responsible for the murder of deceased. A futile attempt has been made to establish the culpability of Partha Sarathi Das. It is nothing short of a last minute plea of desperation which could not be substantiated by any convincing evidence. We are unable to accept the contention on behalf of the appellant that P.W 3 and D.W 1 being the son and daughter of deceased victim are at par with each other on the point of reliability of their evidence. The learned Counsel for the appellant probably overlooked the fact that P.W 3 is an eye witness the credibility of whose evidence remained unshaken in cross-examination whereas D.W 1 is a tutored and an unreliable witness. The defence version set up through D.W 1 is unworthy of credence and is therefore rejected.

Now the residual point for consideration is whether the appellant/accused has been rightly convicted for the charge of murder or whether the act attributed to him would constitute a lesser offence under Section 304 of the I.P.C. It is not in dispute that the death of deceased was homicidal in nature. Let us discuss whether our present case falls within any of the exceptions to Section 300 of the I.P.C. For the purpose of the instant case we are concerned with Exception 1 and Exception 4 to Section 300 of the I.P.C. Exception 1 to Section 300 of the I.P.C. provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

Exception 4 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

We are unable to accept the contention on behalf of the appellant that the incident was the result of grave and sudden provocation or that the act was committed without premeditation in a sudden fight in the heat of passion. The evidence on record hereinbefore discussed clearly reveals that there were frequent quarrels between the accused and the deceased. The dispute was with regard to the ownership of a matador vehicle which the accused wanted to be transferred in his name but the deceased refused. In his examination under Section 313 of Cr.P.C. accused admitted that his wife owned two matador vehicles. Accused also admitted that his wife resided separately with her son (P.W 3) and daughter at 5/2 H Loknath Bose Garden Lane while accused resided at 12/1 Mahendra Roy Lane. It is also on record that there was strained relation between the spouses and a divorce proceeding was pending between them. We get from the evidence of P.W 3 that the accused made abusive phone calls to the deceased on the date of incident. On the other hand there is no evidence of provocation from the side of the deceased. From the evidence of P.W 3 as well as from the written complaint dated 17/11/2004 (Ext. 2) it is clear that accused had threatened to kill the deceased and had made her life miserable which prompted her to file a complaint at Topsia P.S. We also get from the evidence on record that on the date of incident accused entered his house on the pretext of calling his mother for a settlement and brought out a ''bathi'' with which he inflicted blows indiscriminately on the head of deceased leading to her instantaneous death on the spot. The intention of the accused can be gathered from the nature of injuries and the manner of assault. The evidence discloses that accused brought out the ''bathi'' from his house and assaulted the deceased at random on the head resulting in brain matter coming out. It is sufficient proof of intention to murder. The incident cannot be attributed to spur of moment. The case squarely falls within Section 300 of the I.P.C. There is no scope for invoking Exception 1 or Exception 4 to Section 300 of the I.P.C. Having reached this conclusion we find that the decisions reported in Ankush Shivaji Gaikwad Vs. State of Maharashtra, (2013) 4 ABR 648 : (2013) 9 AD 294 : AIR 2013 SC 2454 : (2013) CriLJ 3044 : (2013) 7 JT 26 : (2013) 2 RCR(Criminal) 1036 : (2013) 6 SCALE 778 : (2013) 6 SCC 770 , Tunu Mondal Vs. State of West Bengal, (2008) 1 CHN 335 , Sukhbir Singh Vs. State of Haryana, AIR 2002 SC 1168 : (2002) 2 Crimes 60 : (2002) 3 JT 345 : (2002) 2 SCALE 244 : (2002) 3 SCC 327 : (2002) 1 SCR 1152 : (2002) AIRSCW 936 : (2002) 2 Supreme 28 , Sudarshan Majhi and others versus State of West Bengal (2014) 3 C Cr.L.R (Cal) 741 and Sankar alias Shib Shankar Shaw versus The State of West Bengal (2015) 1 C Cr.L.R (Cal) 905 are of no avail to the appellant being distinguishable on facts from our case in hand.

For the reasons discussed we are convinced that prosecution succeeded in proving its case beyond any shadow of doubt. Therefore we are of the firm view that the order of conviction and sentence passed by the Trial Court is fully justified and warrants no interference.

Consequently the appeal fails and is accordingly dismissed.

The L.C.R along with a copy of judgment shall be sent forthwith to the Trial Court.

Urgent photostat certified copy of this judgment, if applied for, shall be given to the parties subject to compliance of requisite formalities.

Nadira Patherya, J.

I agree.