Hemanta Biswas vs State of West Bengal & Ors.

Md. Mumtaz Khan, J.

This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated July 29, 2002 and July 30, 2002

respectively passed by the learned Additional Sessions Judge, 1st Court, Krishnagar, Nadia in Sessions Trial No. II of April, 2001 arising out of

Sessions Case No. 7 of December, 2000 convicting the appellant for the commission of offence punishable under Section 302 of the Indian Penal

Code (hereinafter referred to as IPC) and sentencing him to suffer imprisonment for life and to pay a fine of Rs.2000/- in default to suffer rigorous

imprisonment for further period of one year.

P.W.1's daughter Kusum Biswas, since deceased, got married with the appellant about 5/ 6 years ago. Since after marriage they started living at the

house of P.W.1 and of their wedlock two female children were born. For the last 2/3 days before the death of Kusum Biswas, appellant started

suspecting his wife of having illicit relation with outsiders which gave rise to strained relation in their family life.

On March 6, 1998 at about 5 a.m. PW1 heard cries out from the room of Kusum shouting “maa amake kete fello, amake bachaoâ€. On hearing

this P.W.1 rushed there and found the room closed from inside. She then raised hue and cry. On hearing her cries villagers rushed there and broke

open the door and found Kusum lying on the floor with bleeding injuries. They also found the appellant in the room with blood stained 'dao'. Villagers

then apprehended appellant along with that weapon and tied him with rope. Kusum was shifted to hospital but on the way to hospital she succumbed

to her injuries.

On the basis of the information given by the doctor of Arongghata BPHC, UD Case No. 7 dated March 6, 1998 was started at Dhantala P.S. On the

same day at 15.50 hrs, P.W.1 lodged a written complaint at the Dhantala Police Station, scribed by P.W.7, and on the basis of the same, P.W.9

started Dhantala P.S. Case No. 16 dated March 6, 1998 under section 304 IPC against the appellant and the case was endorsed to P.W.13 for

investigation.

P.W.11 held inquest over the dead body of the victim at Aranghata Primary Health Centre morgue on the same day at 11.35 hrs. in connection with

Dhantala P.S. UD Case No. 7 dated March 6, 1998 and prepared a report(Ext.5) and thereafter sent the dead body to Ranaghat Sub-divisional

hospital morgue for postmortem examination.

On the same day at 4 P.M., P.W.10 conducted postmortem examination over the dead body of the victim and prepared a report (Ext.4). During

examination the doctor (P.W.10) found 8 sharp cut injuries over the scalp, face, neck, right and left shoulders, right forearm and over the bases of the

fingers of the left palm and thumb finger completely separated while the other fingers partially separated. After dissection of the dead body he also

found 1'' long fracture over the middle of the vault of the scalp and haematoma on brain and opined that death was due to the effects of the above

injuries which were ante mortem and homicidal in nature and those injuries may be caused by a ‘dao’.

P.W.13 initially investigated the case and on his transfer it was investigated by P.W.12 who then on conclusion of investigation submitted charge sheet

being C.S. No. 9/99 dated January 20, 1999 under Section 304 of the IPC against the appellant. On April 11, 2001, charge under Section 302 IPC was

framed against the appellant and on his pleading not guilty, trial commenced. Prosecution in order to prove the case examined 13 witnesses and

produced and proved certain documents and thereafter on conclusion of trial after examination of the appellant under Section 313 of the Code of

Criminal Procedure (hereinafter referred to as Cr.P.C.) learned Trial Judge passed the impugned judgment.

Mr. Siladitya Sanyal, learned advocate appearing as an Amicus to defend the appellant submitted that the impugned judgment and order of conviction

and sentence passed by the learned trial judge are not sustainable in law as there was a doubt with regard to the place of occurrence, the weapon of

offence reportedly seized during investigation and sent for FSL was not produced during trial nor any FSL report came and there was even not a

single eyewitness to the crime. According to Mr. Sanyal, prosecution failed to prove the charge of murder against the appellant. Alternatively, it was

submitted by Mr. Sanyal that at best the provisions of Section 304 Part I is attracted and not 302 IPC as the death had occurred in a heat of passion

and there was no premeditation in causing the death.

Mr. Pravas Bhattacharya, learned advocate appearing for the state submitted that though there was no eyewitness to the crime but immediately on

hearing the cries of the victim when mother of the victim (P.W.1) rushed to her room she found her lying on the floor having severe bleeding injuries

on her person and saw the appellant inside the room with a blood stained dao and the appellant was apprehended by the para people on the spot.

According to Mr. Bhattacharya, the evidence of P.W.1 have been fully corroborated by P.W.2, P.W.3 and P.W.4 who came there on hearing cries of

P.W.1 and their oral evidence also found corroboration from the doctor. According to Mr. Bhattacharjee, prosecution has been able to prove the

charge of murder against the appellant and the nature and number of the injuries suggest the intention of the appellant to cause death.

We have considered the submissions advanced by the Ld. Counsels appearing for the respective parties and have given our thoughtful consideration to

the evidence of the prosecution witnesses, the materials on record including the FIR, rough sketch map with index, seizure list, inquest report,

postmortem report, charge sheet, charge framed, amongst other materials for examining the propriety of the impugned judgment and the order of

conviction and sentence.

It is evident from the evidence of the doctor (P.W.10) and the PM report (Ext.4) that on March 6, 1998 during post mortem examination over the

dead body of the victim doctor found sharp cut injury (bone deep) 5'' x 3'' x 1'' over the left side of face extending up to scalp, sharp cut injury

(mandible cut) 2. 3'' x 1½ '' x 1'' over right side of face, sharp cut injury 5'' x 2'' x 2''over right side of upper part of neck, sharp cut injury (bone

deep) 3'' x 1'' x ½'' over right side of occipital region of scalp, sharp cut injury (bone deep) 4'' x 1'' x 2'' over left shoulder region, sharp cut injury

(bone deep) 3'' x 2'' x ½'' over right shoulder region, three consecutive sharp cut injuries over right forearm, size nearly 2'' x 1'' x ½ '' each and one

sharp cut injury over bases of fingers of the left palm and thumb finger completely separated and the other fingers partially separated and opined that

death was due to the effects of the above injuries which were ante mortem and homicidal in nature and those injuries may be caused by a

‘dao’.

Defence did not dispute or deny the injuries found by the doctor over the dead body of the victim nor the cause of her death or the weapon which may

cause those injuries. So, there was no reason to disbelieve the version of the doctor (P.W.10).

The learned Court below took into consideration the entire circumstances starting from the place where from the dead body of the victim, bearing

sharp cut injuries on her throat, face, scalp, shoulder, hands were found, inquest report, P.M. report, the place where from the appellant with blood

stained weapon of offence namely 'dao' was apprehended, evidence of material witnesses, the motive to eliminate the victim to arrive at a conclusion

that the above circumstances are so conclusive in nature and tendency that the established facts exclude every possible hypothesis except the guilt of

the accused-appellant.

Admittedly, none of the witnesses examined by the prosecution are the witness to the occurrence and the case is based on the circumstantial

evidence. It is the settled proposition of laws that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified

only when all the incriminating facts and circumstances are found to be incompatible with the offence of the accused. The chain of circumstances

should be of a conclusive nature and must be completed and most clearly point out to the guilt of the accused. So, the circumstances the prosecution

has tried to prove against the appellant are the apprehension of the appellant with blood stained 'dao' from the place where from the dead body of the

victim, bearing sharp cut injuries on her throat, face, scalp, shoulder, hands were found and the motive behind the murder.

Now with regard to the apprehension of the appellant with blood stained 'dao' from the place where from the dead body of the victim bearing sharp

cut injuries on her throat, face, scalp etc. was found, it is the specific evidence of P.W.1 on oath that on the relevant date in the morning she heard

cries of her daughter Kusum from inside her room uttering “ma amake kete fello, amake bachao†and accordingly she rushed to the room of her

daughter but found the same closed from inside. She then raised hue and cry and hearing this para people came there and broke open the door and

then they found Kusum lying on the floor having bleeding injuries on several parts of her body and also saw the appellant inside the room with a blood

stained dao. Appellant was then apprehended by para people and was tied with a rope. Thereafter, police came and took away the appellant to the

P.S. She has categorically stated that at the time of her murder, Kusum lived in her house along with the appellant and children. Breaking of the door

of the room of the appellant and entering of the para people in that room also found corroboration from the statements made by the appellant during

his examination under section 313 Cr.P.C. in reply to question no.9. P.W.1 was cross-examined by the defence at length but her evidence remained

unshaken. The above statements P.W.1 also found corroboration from the neighbours namely P.W.2, P.W.3 and P.W.4.

P.W.2 has also deposed that on hearing hue and cry in the morning he rushed to the room of appellant which is situated near the room of P.W.1 and

found the broken door of the room and saw Kusum lying in injured condition and appellant was there with a weapon and injured Kusum was sent to

hospital. People assembled there apprehended the appellant and tied him with a rope and thereafter when police came he was handed over to the

police. He identified the appellant in course of his examination before court. He too was cross-examined by the defence but nothing came out contrary

to his statements in chief save and except his admission that he was not interrogated by police in connection with the case. But non examination of

any witness during investigation will not diminish the value of the statements of that witness made on oath before court duly tested by cross-

examination.

P.W.3 has also deposed that about 3 years ago in the month of Falgoon at about 5 a.m. on hearing hue and cry she rushed to the room of appellant

and found the dead body of Kusum lying on the floor of that room having bleeding injuries. She also saw the appellant in that room. Appellant was

then apprehended by the para people and tied with a rope. Thereafter police came and arrested the appellant. She was also cross-examined by the

defence but her creditability remained unimpeached.

P.W.4 also deposed that on hearing hue and cry of P.W.1 they rushed to the room of appellant and found the dead body of Kusum in that room and

appellant was tied with a rope and Kusum was shifted to the hospital. There was no cross-examination by the defence on that score. Thus, we find

the testimonies of the above witnesses are consistent and have clearly spoke about seeing the dead body of the victim lying on the floor having

bleeding injuries on several parts of her body and the presence of the appellant inside the room with a blood stained dao. They also identified the

appellant in course of recording of their evidence before court.

They were cross-examined at length by the defence but nothing has been elicited in the cross-examination to discredit their version. They are the

neighbours and they have stood firm despite incisive cross-examination. Their evidence appears to be trustworthy and reliable. The medical evidence

has gone further to strengthen their testimonies. In such circumstances, there appears no reason to discard the evidence of P.W.1, P.W.2, P.W.3 and

P.W.4.

From the trend of cross-examination and the statements made during examination under section 313 Cr. P.C., it is evident that the appellant has taken

the plea of alibi but in support of that claim appellant made no effort whatsoever to examine any witness to establish this fact. Appellant, therefore,

failed to discharge the burden of alibi. Furthermore, immediate after the occurrence appellant was seen with dao in the room where the dead body of

the victim bearing sharp cut injuries on her throat, face, scalp, shoulder, hands was found and was apprehended by the para people, tied with rope and

handed over to police. No explanation was offered by the appellant with regard to the injuries sustained by his wife. Appellant in his statements under

section 313 Cr.P.C. in reply to question no. 10 admitted that he was apprehended by para people, tied with rope and handed over to police. But the

answer given by the appellant during his examination under section 313 Cr.P.C. in reply to question no.9 that he was not present in the room does not

appear to be believable in the light of the evidence adduced by the neighbours namely P.W.1, P.W.2, P.W.3 and P.W.4.

With regard to the motive behind the murder, it was the specific allegation of P.W.1 in her complaint that for the last 2/3 days before the death of

Kusum Biswas, appellant started suspecting his wife of having illicit relation with outsiders which gave rise to strained relation in their family life.

During her cross-examination also she clearly stated that appellant used to make aspersions about the character of her daughter. She denied the

defence suggestion that her daughter bore loose character for which appellant refused to accept her and for that reason her daughter used to live in

her house. So, from the trend of cross-examination also, it was evident that there was a strained relation in the marital life of the appellant and victim

over the issue of chastity of the victim. Thus, the existence of motive was very much there.

With regard to the contention of the appellant that failure on the part of the investigation agency to produce the weapon of offence or collect the

Forensic Serological Laboratory report to connect the weapon with commission of offence and blood report of the deceased as also the reports of

blood stained soil and controlled earth to prove the place of occurrence, the same relates to a defect of investigation. In the matter of Promode Dey

vs. State of West Bengal, reported in (2012) 4 SCC 559, it was decided by the Hon’ble Supreme Court that non-collection of FSL report might be

a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction. This principle

has also been repeated and reiterated by the Hon'ble Apex court in a number of decisions time and again.

P.W.13,the investigating officer has deposed that after the case was endorsed to him for investigation he went to the place of occurrence, prepared

rough sketch map with index(Ext.6), seized blood stained dao from the P.O. by a seizure list (Ext.2/2) in presence of witnesses and arrested the

appellant who was detained there by local people and produced him before court and thereafter sent the bloodstained dao to FSL through the learned

SDJM, Ranaghat but during his tenure he could not collect the report from FSL. During cross-examination also he stated that he seized the dao from

the house of appellant. P.W.7 and P.W.8, the witnesses to the seizure of the dao identified their signatures on the seizure list. Though they did not say

what was seized by that seizure list but it was evident that the contents of seizure list is written in Bengali and they also signed in Bengali giving their

full particulars. At nowhere they claimed that their signatures were obtained by police forcibly and/or that they signed on the document without

knowing the contents of the same. So, it can not be said that they were not aware about the contents of the seizure list when they signed. Seizure list

clearly speaks of seizure of dao amongst other articles from the house of appellant.

Thus, we find from the record that investigating officer (P.W.13) though seized bloodstained weapon of offence, blood stained earth etc. and sent the

same for forensic examination but could not collect the same. Even P.W.12, who submitted the charge-sheet, specifically stated that he failed to

collect the FSL report inspite of several attempts. He was not cross-examined by the defence on this score. Non collection of FSL report at best could

be termed as negligence on the part of the I.O. and defect in investigation. Non production of the dao during trial also can not wash out the evidence

of prosecution witnesses who saw the same in the hand of the appellant in the room where dead body of the victim bearing sharp cut injuries was

found. The place of occurrence is the room of the appellant. This has duly been proved by P.W.1, P.W.2, P.W.3 and P.W.4. This also found

corroboration from the rough-sketch map (Ext.6). Dao was used in the commission of the offence. This also find support from the medical evidence.

We do not find any substance in the submission made to the effect that the impugned conviction requires our interference on the ground of failure on

the part of the investigation agency to produce the weapon during trial and to collect the Forensic Serological Laboratory report to connect the weapon

with commission of offence and blood report of the deceased as also the reports of blood stained soil and controlled earth to prove the place of

occurrence. So, from the above there appears no room for doubt with regard to the place of occurrence. Therefore, our interference with the

impugned judgment is not required on the above grounds.

The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I IPC, as

raised by the learned Advocate for the appellant. In the case in our hand, we find that there was strained family relation between the appellant and the

victim as the appellant was suspecting his wife of having extra-marital relation with someone else and accordingly struck the victim with a dao on her

head, neck and other parts of her body causing severe cut and bleeding injuries therefrom which resulted in her death. During postmortem examination

doctor found 8 sharp cut injuries over the scalp, face, neck, right and left shoulders, right forearm and over the bases of the fingers of the left palm and

thumb finger completely separated while the other fingers partially separated. After dissection of the dead body he also found 1'' long fracture over

the middle of the vault of the scalp and haematoma on brain and he opined that death was due to the effects of the above injuries which were ante

mortem and homicidal in nature and those injuries may be caused by a ‘dao’. So, the number and nature of the injuries suggest that the intention

was clearly to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence

under section 302 IPC against the appellant.

After scrutinizing the entire evidence on record, we do not find any illegality in appreciation of evidence, or in arriving at the conclusion as to the guilt

of the appellant by the learned Trial Court. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant. Copy

of this judgement along with the lower court records be sent down to the trial court for information and taking necessary action. Urgent photostat

certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in

this regard. on the above grounds in view of the settled proposition of law as discussed herein above.