Jaysen Pandey vs State Of West Bengal

Samapti Chatterjee, J

A) This Crimnal Appeal arises out of judgement and order of conviction passed by the learned Additional District & Sessions Judge , Fast Track

Court Purulia on 8th November, 2005 against accused Jaysen Pandey under Section 302 of the Indian Penal Code.

The fact of the case is as follows :-

On 20.02.2005 at 9:45 hours one Haradhan Kuiri, son of deceased Narayan Kuiri lodged an F.I.R at Suisa Outpost which was forwarded to

Bagmundih Police Station on the same date for starting a case under Section 302 of the Indian Penal Code against accused Jaysen Pandey alleging

that on that very date in the morning when the deceased was returning from Sasa More after having tea, accused Jaysen Pandey assaulted the victim

with Tangi and the victim died on the spot. After gathering the information defacto complainant Haradhan Kuiri (P.W.1) son of the victim Narayan

Kuiri rushed to the place of occurrence and found his father lying dead with injuries on his person by the side of the road near the house of accused

Jaysen Pandey. The further case of the prosecution is that four years ago accused Jaysen Pandey tried to do some rubbish with the daughter of the

deceased Narayan Kuiri and over this issue a dispute was cropped up between the parties as a result of which the incident of murder occurred.

After receiving written complaint O.C Bagmundih Police Station started CaseNo.08/2005 dated 20.02.2005 under Section 302 of the Indian Penal

Code against accused Jaysen Pandey and after completion of investigation charge-sheet was submitted under Section 302 of the Indian Penal Code.

Accordingly trial started and after completion of trial accused was examined under Section 313 Cr.P.C where the accused strongly denied the case of

the prosecution and hearing started. Resultantly, the accused Jaysen Pandey convicted by Learned Additional District & Sessions Judge, Fast Track

Court-I, Purulia .

Hence the present appeal.

Submissions of the learned Advocates C) Mr. Basu learned amicus curie appointed by this Hon’ble Court submitted that there are 18 witnesses

adduced by the prosecution in order to prove its case. P.W.1 Haradhan Kuiri the son of the deceased Narayan Kuiri who lodged the F.I.R, is a post

occurrence witness, stated in his deposition that on 20th February, 2005, Sunday at about 8:30 a.m. while he was working in his vegetable ‘Bari’

then Bhadra Singh Babu came and informed him that his father Narayan Kuiri has been murdered by Jaysen Pandey by Tangi. After gathering such

information P.W.1 rushed to the Sasha More and found that his father was lying dead near the door of Jaysen Pandey and he identified the accused

person on dock. P.W.1 further deposed that he subsequently went to Suisa Outpost and lodged complaint in writing. That complaint was scribed by

one Uma Charan Kuiri as per his instruction and direction and was also read over and explained before him and he put his signature. He also identified

the written complaint scribed by Uma Charan Kuiry. He also identified his signature in the written complaint and the written complaint was marked as

Exbt.1/2. He also identified the signature of the scribe namely Uma Charan Kuiri on the written complaint marked as Exbt.1/1. He also identified the

carbon copy of the inquest report. (Exbt.2/1) . He stated that after inquest was made the deadbody was sent for post mortem examination.

The blood stained wearing apparels of his father, his father’s Atlas Cycle, blood stained earth and controlled earth was also seized by the police at

the place of occurrence for preparing seizure list. He also identified the seizure list. Seized blood-stained wearing apparels of the deceased were

marked as Mat. Exbt. I collectively. Seized blood-stained earth and controlled earth was marked as Mat. Exbt.II. He also stated that when he rushed

to the place of occurrence then he found that Naren Pramanik, Uma Charan Kuiry, Subarna Kumar, Manjura Pramanik , Premananda Singh Babu ,

Chamu Kuiryand Naren Kuiry were there.

In his cross-examination he stated that the incident occurred at about 8/8:30 a.m.. P.W.2 is the resident of that village. He is an independent witness.

He has a tea stall at Sasha More. He deposed that he know Narayan Kuiry. On 8th Falgun Sunday in the morning Narayan Kuiry came to his tea stall

to have a cup of tea. After having tea Narayan Kuiry (since deceased) and one Chamu Kuiry proceeded towards their house. Within a few minutes

he heard a commotion and immediately after coming he found accused Jaysen Pandey with blood smeared Tangi in his hand while shouting “Ek

Byatake Katlum Arek Byatake Katboâ€. After uttering such words he proceeded towards Bhurso village. P.W.2 identified accused Jaysen Pandey

on dock. He also identified the Tangi which was in the hand of the accused Jaysen Pandey at that time. Then the P.W.2 went to the place of

occurrence and found that Narayan Kuiry (since deceased) lying dead near the door of accused Jaysen Pandey. He also found many injuries on the

person of deceased Narayan Kuiry. The said witness stated that accused Jaysen Pandey attempted to commit forcible sexual rubbish with the

daughter of deceased Narayan Kuiry at about 4-5 years ago. Over that issue there was a dispute between them and accordingly accused Jaysen

Pandey was compelled to leave the village. Therefore due to previous grudge the accused Jaysen Pandey murdered Narayan Kuiry.

In his cross-examination P.W.2 deposed that on 8th Falgun Sunday at about 9/10 a.m. police came to their village in connection with that incident and

the deadbody was sent for post-mortem examination. P.W.2 is a post occurrence witness and not an eye witness.

P.W.3 is a hearsay witness and interrogated by the Investigating Officer in connection with that case.

P.W.4 claimed as eye witness. He is the brother-in-law (sala) of deceased Narayan Kuiry. He was interrogated at the place of occurrence. He

deposed that he was returning home with deceased Narayan Kuiry after having tea. Narayan Kuiry was on his cycle and he was walking about 10-15

cubit behind Narayan Kuiry. When Narayan Kuiry reached near the house of Jaysen Pandey then suddenly Jaysen Pandey came and rushed with

Tangi @ Farsa. Due to infliction of blow with Tangi Narayan fell down on the right side and his cycle also fell on the ground. Thereafter accused

Jaysen Pandey inflicted five successive blows on the person of Narayan Kuiry. Consequently Narayan Kuiry sustained severe bleeding injuries then

accused Jaysen stated that “Ek Byatake Katlam Arek Byatake Katbo†and threatened the P.W.4 that if he disclosed the incident to anybody then

he would also be murdered. After killing Narayan Kuiry accused Jaysen Pandey proceeded towards Bursu with the Tangi.

Subsequently police came to their village. Uma Charan Kuiry sent information to the house of deceased Narayan Kuiry by Bhadra Singh Babu @

Mura . Immediately after gathering the information P.W.1 the son of the deceased then came to the place of occurrence. It is also deposed by P.W.4

that Uma Charan Kuiry and Haradhan Kuiry then went to Suisa Outpost to lodge information. When police came to the village then P.W.4 was

interrogated by the police officer. Thereafter many people assembled on the place of occurrence. P.W.4 gave statement under Section 164 of the

Cr.P.C to the learned Judicial Magistrate Purulia. He was also present when an inquest was held over the deadbody of the deceased Narayan Kuiry.

He identified the signature on the carbon copy of the inquest report. He also stated that he can identify the seized Tangi if it is produced before him.

He identified the accused Jaysen Pandey on dock. P.W.4 also narrated that 4-5 years back accused Jaysen Pandey attempted to rape the daughter of

deceased Narayan Kuiry. Over that issue a dispute cropped up between the accused and the deceased. Accused Jaysen Pandey was then driven out

from the village for about three years. Thereafter he returned to the village.

In cross-examination the P.W.4 deposed that on that day other customers were having tea and Bhadra Singh Babu also came to the tea stall. He did

not hear any commotion while having tea. In the cross-examination he stated that at the time of incident he was about 10-15 cubits behind deceased

Narayan Kuiry. He was interrogated by the police officer at the place of occurrence at about 8:30 to 9. A.m.

P.W.5 is the wife of the deceased. She deposed that there was quarrel between her husband and accused person. The accused tried to sexually

abuse her daughter. She said that 13-14 days after the incident she was interrogated. She deposed that at about 8:30 a.m. when she was working in

her village Bari then Bhadra Singh Babu came and informed them that Jaysen Pandey murdered her husband with a Tangi. Upon getting such

information she along with P.W.1 rushed to the place of occurrence at Sasha More and found that her husband is lying in a pool of blood with a

sticking condition having 5-6 injuries on his body. She also found that many people had assembled at the place of occurrence like Uma Charan Kuiry,

Chamu Kuiry, Manjura Kuiry, Naran Kuiry (sakha) and others. After seeing her husband’s condition she became senseless. Next date she was

interrogated by the police officer. She also identified accused Jaysen Pandey. She also identified the seized wearing apparels of her husband.

In cross-examination P.W.5 deposed that no complaint was lodged at the police station or on the Panchayat Office regarding sexual abuse of her

daughter by the accused.

P.W.6 deposed that on 8th day of Falgun about 8/8:30 a.m. while he was returning home he found Narayan Kuiry Proceeded ahead to him on his

cycle. Suddenly accused Jaysen Pandey came and struck down Narayan Kuiry with Tangi on his head and as a result of which Narayan Kuiry fell

down on the road. Thereafter accused Jaysen Pandey inflicted 4/5 successful blows on the person of Narayan Kuiry and shouted “Ek Byatake

Katlum Arek Byatake Katbo†. Thereafter Jaysen Pandey proceeded towards Barshu village with Tangi in his hand. P.W.6 further deposed that he

found Narayan Kuiry, Chamu Kuiry and Manjura Pramanik at the place of occurrence . He also identified the accused on dock.

In cross-examination P.W.6 deposed that he was a resident of village Rajabasa which is adjacent to Sasha More and deceased Narayan Kuiry was

his maternal uncle by village courtesy. He is having a small grocery shop in his village. He used to have tea. He usually comes to Sasha More to have

tea in the morning and in the evening. He went to have a cup of tea on that very date on Sasha More at 6 a.m. While he was returning home after

having tea the incident took place. One or two customers also rushed on hearing the commotion. After 13/14 days of the incident he was called by the

Investigation Officer in connection with this case at Suisa Outpost. He stated to the officer that deceased Narayan Kuiry proceeded ahead of him on

his cycle. He also stated in his cross-examination while he was returning home he saw that accused Jaysen Pandey suddenly struck Narayan Kuiry

with Tangi on his head.

P.W.7 deposed that on the very date of incident in the morning at about 8:30 a.m. he was returning home after having tea from tea shop at Sasha

More. He also stated that deceased Narayan Kuiry returning home on cycle Chamu Kuiry was also with deceased Narayan Kuiry.

When Narayan Kuiry reached near the house of accused Jaysen Pandey he suddenly came and struck him with Tangi in consequence of which he

fell down. Thereafter Jaysen inflicted five successive blows on the person of Narayan Kuiry with Tangi as a result of which Narayan Kuiry died with

blood injury. Accused Jaysen Pandey then uttered “Ekjonke Katlum Arekjonke Katboâ€. Saying so he proceeded towards Bhursu village with

Tangi in his hand.

In his cross-examination P.W.7 deposed that he cannot say whether Nichpara is about 1 ½ /2 K.M. distance from Sasha More. He also stated that

on the date of incident he departed from his house for the tea shop at about 6 a.m. then he returned home after having tea.

P.W.8 is the hearsay witness. He identified Jaysen Pandey on dock. He is a resident of that village.

P.W.9 is the constable at Suisha Outpost. He identified the Tangi and in his deposition he stated that on the date of occurrence he left the place at

8:30/9 a.m. He also deposed that he left for Sasha More from Suisha Outpost at about 8:30/9 a.m. by jeep. P.W.1 son of the deceased was also

accompanied with them and Sasha More is about 7-8 k.m. distance from Suisha Outpost.

P.W.10 wrote the FIR as per dictation of the son of the deceased (P.W.1). In his cross-examination he stated that at about 9:30 a.m. he along with

others left the place of occurrence for Suisha Outpost and reached there near about 9:45 a.m. and written complaint was submitted to the Police

Officer at the Suisha Outpost. The complaint was scribed near the place of occurrence. He saw that Jaysen Pandey fled away with Tangi towards

Bhursu village.

P.W.11 was an independent witness and a resident of village Dulmi. He is also a hearsay witness. He said that at about 10 a.m. he got the information

of the death of Narayan Kuiry. He is also a signatory of seizure list. He identified his signature on the original seizure list. He identified the wearing

apparels of the deceased seized by the police. He also identified accused Jaysen Pandey.

In his cross-examination he deposed that at about 10 a.m. after getting such information he went to Sasha More about 5-6 minutes later. Police was

already present at the Sasha More and at about 11:30 a.m. police seized those articles.

P.W.12 is the Constable witness of the seized articles. interrogation accused Jaysen and signatory of the seizure list and He stated in his deposition

that on Pandey made a disclosure statement regarding the offending weapon i.e. Tangi and led them to Bukadih jungle. On reaching

Bukadih jungle accused Jaysen Pandey produced one Tangi from a bush of Bukadih jungle which was seized by S.I. Sagar Banerjee in their presence

and he signed on it. He identified his signature on the original seizure list marked as Exbt.5/2. He also identified the seized Tangi marked as Mat.

Exbt.III).

In his cross-examination P.W.12 stated that S.I. Sagar Banerjee, S.I. A.K. Sinha he and Constables Mahadeb Chel and Birendranath Roy went to

Bukadih jungle in police jeep. He did not see Bukadih village since it was dark. They reached Bukadih jungle at about 4/4:10 a.m. By the side of that

jungle Tangi was recovered and brought to the police station and label was prepared. Seizure list was prepared at Bukadih jungle. He signed on the

label.

P.W.13 was a member of raiding team. On being interrogated by S.I. Sagar Banerjee accused Jaysen Pandey disclosed that he had concealed the

offending weapon in a bush at Bukadih jungle and he left it to that jungle.

In cross-examination he stated that seized Tangi was labeled at the police station but he did not sign on that label. He failed to say who signed on that

label. Label was not prepared in his presence.

P.W.14 was also a constable of that raiding team.

P.W.15 conducted post-mortem of the deceased and deposed that on examination he found the following injuries :-

One sharp cut wound on the occipital region of scalp with division of occipital bone and exposing the meninges. This wound measured about 7†X

1 ½ X muscle deep.

Sharp cut wound in the right parietal region of scalp measuring about 3â€​ X 1 ½â€​ X muscle deep.

One sharp cut wound on the nape of neck about 7â€​ X 1 ½â€​ X muscle deep over the vertibral column.

One sharp cut wound over the right scapular region measuring about 3â€​ X 1â€​ X bone deep-fracture scapular right.

Lower part of the right ear was cut through and missing.

Sharp cut wound on the right hand at the fourth web space separating the metacarpal bones and the little finger of the right hand is missing.

The cause of death in his opinion was due to haemorrhage and shock as a result of the injuries mentioned above which were ante-mortem and

homicidal in nature. He also stated that all such injuries as mentioned by him are sufficient in the ordinary course of nature to cause the death of a

person. Such injuries may be caused by sharp cutting weapon like Tangi or Farsa.

In his cross-examination he deposed that such injuries were not likely to be caused with a sword since the length of a sword is more than that of

Tangi. If the length of an axe is bigger than such injuries may be caused.

P.W.16 is the junior officer who recorded the statement of witness Chamu Kuiry under Section 164 Cr.P.C. and on the same date he recorded the

statement of witness Naran Kuiry under Section 164 Cr.P.C.

P.W.17 was the formal normal witness. He was posted as officer-in-charge at Bagmundih Police Station who endorsed that case to S.I Sagar

Banerjee for investigation.

P.W.18 was the Investigating Officer of this case who stated in his deposition that at about 9:45 a.m. he took up the case for investigation though he

was not formally entrusted. It is also deposed by P.W.18 that accused Jaysen Pandey produced the offending weapon Tangi which was seized not

from the place of occurrence. That Tangi was not labeled. It was also deposed that witness Chamu Kuiry did not stated before him that he was 10-15

cubit behind the deceased at the time of incident.

During investigation he visited the place of occurrence and prepared the sketch map with index. (Identified the sketch map with index and also

identified his signature). He also held the inquest over the deadbody of Narayan Kuiry at Sasha More. He identified the inquest report prepared by

him. He deposed that he sent the deadbody for post-mortem examination in Purulia Sadar Hospital under a deadbody challan through Constable

No.114 Birendra Nath Roy.

Thereafter he prepared the seizure list of sample earth, blood-stained earth, one Atlas cycle, blood-stained wearing apparels from the place of

occurrence and that seizure list was made in presence of witnesses who signed there on. He identified the original seizure list prepared and signed by

him. He recorded the statement of witnesses Chamu Kuiry, Bhadra Singh Babu, Naran Chandra Paramanik, Premsingh Babu, Complainant Haradhan

Kuiry, Gurubari Kuiry, Shibu Kuiry, Naran Kuiry and Manjura Paramanik. He sent the witnesses Chamu Kuiry and Naran Kuiry to the Court of the

learned S.D.J.M. Purulia for recording their statements under Section 164 Cr.P.C.

On 6/7th April, 2005 at 9 hours he arrested accused Jaysen Pandey at Anda village that was within P.S. Nimdih, Dhanbad and brought him to

Bagmundih P.S via Nimdih P.S.

On interrogation accused confessed his guilt and made a disclosure statement to the effect that he had concealed the offending weapon i.e. Tangi in

Bukadih jungle which is within P.S-Bagmundih. On arrival at Bukadih jungle accused Jaysen Pandey produced the offending weapon i.e. Tangi from

the bush of that jungle and the same was seized by him in presence of witnesses under a seizure list on which the witnesses signed. Accused also put

his signature on that seizure list. He identified the original seizure list. He identified the signature of the accused Jaysen Pandey on that seizure list and

he deposed that accused signed on that seizure list in his presence. He identified the seized Tangi for Farsa which was produced by the accused from

the bush of Bukadih jungle. Initially P.W.18 deposed that the seized Tangi was not labeled at the place of occurrence but it was labeled at the police

station then he stated that seized Tangi was not labeled. It is also deposed by him that Chamu Kuiry never stated before him that 4-5 years ago there

was a dispute between accused and the deceased Narayan Kuiry.

Mr. Apalak Basu learned Advocate appearing for the appellant strongly submitted that P.W.1 said FIR was lodged at 10 a.m. P.W.2 only said that

the incident took place at morning but did not specify any particular time. P.W.3 said police came at the place of occurrence at 8:30 a.m. but P.W.4

said that police came in between 8:30 a.m.-9 a.m. P.W.5 the wife said in her deposition that information of death of her husband was received at 8:30

a.m. It is also stated by Mr. Basu that P.W.9 police personnel said in his deposition that he left the place at 8:30/9 a.m. and the doctor also deposed

that he could not state actual time of death. Therefore Mr. Basu vehemently argued that there is discrepancy in the evidence of the witnesses

pertaining to the time of occurrence.

He further pointed out that P.W.4, 6, 7 are the star witnesses but P.W.4 brother-in-law one of the star witnesses stated that he was interrogated at

the place of occurrence at about 8:30 a.m. though F.IR was registered at 9:45 a.m.

It is also strongly urged by Mr. Basu that P.W.18 the Investigation Officer in his deposition stated that witness Chamu Kuiry did not state before him

that he was walking 10-15 cubits behind the deceased Narayan Kuiry .

It is further contended by Mr. Basu that P.W.4 does not named P.W.6 as eye witness. P.W.4 only deposed that he and P.W.7 were the eye

witnesses but P.W.6 deposed that P.W.6,4,7 and 8 were there. P.W.8 herself stated in her deposition that she heard the incident and was not at the

place of occurrence when the incident took place. Therefore according to Mr. Basu the testimonies of the prosecution witnesses are not believable

though P.W.6 & 7 claimed that they are the eye witnesses but it is not reflected from their testimony.

Mr. Basu also referred Section 211 and 212 of Cr.P.C . He further stated that the charge-sheet as well as the FIR mentioned only the name of the

village not the particular police station or district.

In respect of the alleged offending weapon Mr. Basu cntended that Tangi was not labeled and not even sent for FSL. No independent witness was

there. All are interested/related witnesses though witnesses deposed that the incident occurred near the tea shop but no independent witnesses came

to depose to that effect on behalf of the prosecution. Blood stained cloths, blood stained earth and blood stained wearing apparels were never sent for

FSL for that the accused fingerprint was not taken for matching with the fingerprint appears in alleged offending weapon i.e. Tangi.

He also strongly contended that Section 201 is missing at the time of framing the charge. It is also contended by Mr. Basu that at the time of

questioning the accused under Section 313 of the Cr.P.C. it was not properly complied with. Questions was put in a jumbled up and hasty manner. In

support of his contention reliance was placed on an Hon’ble Apex Court decision reported in 2019 (3) SCC Page-289 Paragraph-10 and 19 .

Per contra, Mr. Rudradipta Nandy learned Advocate appearing for the State vehemently submitted that the entire case is based on statement of

eye witnesses, P.W.4, 6 & 7 are the eye witnesses and P.W. 1-10 are the post occurrence witnesses. P.W.2 and P.W.10 are also independent

witnesses. P.W.8 is the hearsay witness.

It is further contended by Mr. Nandy that evidence of P.W.1 has been corroborated with the FIR. Therefore there is no occasion to disbelieve the

testimony of those witnesses.

Mr. Nandy further submitted that testimony of eye witnesses also cannot be ignored or ruled out because their testimonies also corroborated with the

incident as narrated in the FIR.

Mr. Nandy further strongly argued that behind this murder there was a motive also as the accused tried to do some rubbish with the daughter of the

deceased. Therefore, veracity of the post-occurrence witnesses and independent witnesses cannot be ruled out. The statement of Chamu Kuiry under

Section 164 Cr.P.C also should be taken into account.

P.W.15 the autopsy surgeon in his evidence stated that there were multiple injuries in the person of the deceased. P.W.7 also identified the offending

weapon. It is proved under Section 27 of the Evidence Act that the weapon was recovered.

Therefore, before parting with his argument Mr. Nandy strongly submitted that the entire evidence of the prosecution witnesses corroborated with the

FIR. Furthermore, the offending weapon was also recovered and identified. Therefore, Court should not entertain this appeal. Appeal should be

dismissed.

Considering the submissions advanced by the learned Advocates appearing for the parties and after meticulously perusing the record we find that

there cannot be any dispute that the deceased died in a homicidal death. Now the question is whether the prosecution has been able to connect the

present case with the alleged crime.

On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find from the testimonies of the eye

witnesses i.e. P.W.4,6 & 7 were corroborating with each other as everyone in his evidence stated that they saw the accused person assaulted the

deceased with Tangi and thereafter fled away to the Bhursu village. Therefore there is no scope to disbelieve the testimony of the eye witnesses.

We further find from the deposition of the autopsy surgeon who prepared the post-mortem report that all total there were six injuries in the person of

the deceased and all are grievous and doctor’s opined that all such injuries are sufficient in ordinary nature to cause the death of a person. Such

injuries may be caused by sharp cutting weapon like Tangi or Farsa.

It is also proved from the testimonies of witnesses including eye witnesses that since the accused attempted to commit rubbish with the daughter of

the deceased therefore he was driven out from the village for three years. After that when he returned to the village he with the intention/motive to kill

the deceased several times assaulted the deceased with Tangi. Therefore we find no reason to disbelieve the testimony of the eye witnesses which

corroborated with the evidence of the P.W.15 the autopsy surgeon and also with the F.I.R.

Therefore, we have no hesitation to hold that the prosecution has been able to prove the hilt against the accused person and the learned Trial Court

has rightly held that the guilt is proved against the appellant.

The sum total of the above discussion is that the Trial Court is properly appreciated the evidence on record and has held the appellant guilty.

We do not find any merit in the appeal, no interference is called for exercising of our appellate power.

The appeal must fails and resultantly stands dismissed.

The office is directed to sent the LCR at once.

Urgent photostat certified copy of this judgement if applied for, be supplied to the parties on priority basis.