Mantu Bouri vs State Of West Bengal & Ors.

Md. Mumtaz Khan, J.

This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated June 28, 2004 passed by the

learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 4(11) of 2003 arising out of Sessions Case No. 13(5) of 2003 convicting

him for commissioning of the 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. 2,000/- in default to suffer rigorous imprisonment for two months more.

The case of the prosecution, in brief, is that on 7th November 2000 at about 14.30 hrs. appellant after having altercation with his wife Saraswati Bouri

over the issue of her extra marital affairs with a person of their village killed her by slashing her neck with a 'Boti' (fish knife) in the varanda of his

house and thereafter surrendered at the local P.S. confessing his guilt. A written complaint scribed by PW14 was then lodged at the Gangajalghati

P.S. by P.W.2, mother of the victim and on the basis of that complaint a Gangajalghati P.S. Case No. 67 of 2000 dated November 7, 2000 under

Section 302 IPC was started against the appellant.

P.W.11 took up investigation of the case. He visited the place of occurrence which is the house of the appellant where he found the dead body of the

victim lying on the floor having severe bleeding from her neck,head,hand etc. P.W.11 then held inquest over the dead body of the victim on the same

day in presence of P.W1,P.W.2 and P.W.5 and prepared a report(Ext.7) where the appellant was reflected as assailant. He also seized one blood

stained boti without handle, one blood soaked mat, bat of the said boti which he found lying at the place of occurrence besides broken conch

bangles,bangles made of pala,sacred iron bangle etc. by a seizure-list (Ext.6). Thereafter, he sent the dead body for postmortem examination.

Postmortem examination over the dead body of the victim was held on November 8,2000 at Bankura Medical college and Hospital morgue by P.W.16

who on examination found several injuries over the dead body body of the victim and opined that death was due to effects of the injures which were

ante mortem and homicidal in nature. After examination, P.W.16 prepared a report (Ext.12). The findings arrived at by P.W.16 was concurred by

P.W.13, Head of the Department of Forensic Science Medicine, Bankura Medical College and Hospital.

On account of transfer of P.W.11, the investigation of the case was taken over by his successor, P.W.12 and thereafter, on completion of the

investigation a charge sheet being no. 84 dated November 11, 2001 under Section 302 of IPC was submitted against the appellant by P.W.12. On 17th

November 2003 charge under section 302 IPC was framed against the appellant and on his pleading not guilty to the charge, trial commenced.

 In order to prove the case, prosecution examined 16 witnesses and also produced and proved certain documents namely FIR, General Diary Entry,

seizure lists, inquest report,postmortem report,dead body challan,medical report,FSL report etc. and thereafter on conclusion of the trial and after

examining 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.

It was submitted by Mr. S. Mondal, learned Advocate appearing for the appellant that none of the witnesses examined by the prosecution was the

witness to the occurrence and the entire case was based on the circumstantial evidence and the prosecution has failed to complete the chain of

circumstances. According to Mr. Mondal, both the mother and the daughter of the victim were present in the house at the relevant point of time but

neither of them supported the prosecution story. According to Mr. Mondal, no reliance can be placed over the purported confessional statement of the

appellant being made before police during detention in custody. According to him, prosecution has failed to prove the charge of murder against the

appellant beyond all reasonable doubt.

Mr. Negib Ahmad, learned Advocate representing the state,in his usual fairness, submitted that there was no eye witness to the incident and the entire

case is based on the circumstantial evidence and extra judicial confession of the appellant. According to Mr. Ahmad, appellant went to the police

station on his own and made his confession voluntarily before his detention in custody and also before the doctor who examined him and as such there

was no bar in taking into account the said confession of the appellant. According to Mr. Ahmad, prosecution had been able to prove the charge of

murder against the appellant beyond all reasonable doubt and the learned trial judge was quite justified in passing the impugned judgment.

We have considered the submissions advanced by learned counsels appearing for the respective parties and have given our thoughtful consideration to

the evidence of the prosecution witnesses and the materials on record for examining the propriety of the impugned judgement. The learned court

below took into consideration the evidence of P.W.6 and P.W 11 together with the evidence of P.W.15,the doctor, who examined the appellant to

ascertain his mental condition besides the evidence of autopsy surgeons and the investigating officer to arrive at the conclusion that it was the

appellant who caused death of the victim by severely injuring her with the help of a 'Bonti' and thereby committed the offence of murder punishable

under Section 302 IPC.

It was not in dispute that the victim Saraswati Bouri died on November 7, 2000 and her death was unnatural. It was evident from the evidence of the

doctor (P.W.16) and the PM report (Ext.12) that during post mortem examination on November 8,2000, P.W. 16 found following injuries over the

dead body body of the victim:

One incised cut throat injury 7''x 1'' x bone obliquely placed over front of neck, of the injury 4 ½'' on the left side of mid line. The injury being

placed 2'' above supra sternal notch and 49'' above right heel. On dissection he found: On tracing the track it was seen to cut through the skin,

platysma, muscles correspondingly to cut through and through major vessels on the right side including common carotid and jugular vein, cricothyroid

ligament, oesophagus, common carotid artery on left side to finally terminate over 5th cervical vertebrae by making an incised cut over transverse

process of 5th cervical vertebrae. The plane was directed with backward and downward inclination.

One incised wound 1'' x ½'' x bone over left side of face cutting the upper part of pinna of left ear 6'' away from mid line and 54'' above left heel.

One incised wound 3½'' x 1'' x mastoid bone over left side of face cutting mid part of left ear 5 ¾ '' away from mid line 53'' above left heel. The

injury nos. 2 and 3 were bevelled incised wound with downward bevelling directed downwards and medial wall and both the injuries were seen to

have cut mastoid bone tangentially.

One incise wound 3'' x ½'' x muscle and bone over left shoulder region and ondissection it is seen to have cut skin muscles finally end by making

an incised cut over upper most part of left humerus bone for 1'' x .1'' directed downwards and medial words 48'' above left heel.

One incised wound 1¼'' x 1/3 '' x scalp tissues placed middle of forehead ½'' to the right of the mid line and 3/4th'' to left of mid line 1'' above

fronto nasal angle with tailing for .3'' on left side.

One incised wound 1 ½'' x ½'' x muscle over dorsal surface of left wrist.

One incised wound 2'' x ½'' x bone obliquely placed over dorsal surface of lower part of left forearm 1'' above injury no. 6 cutting ulnar bone for

1'' x .1''.

One bevelled incised wound 3'' x ½'' x muscle bevelled downward placed over mid part of dorsal surface of left forearm placed 2'' above injury

no. 7. The injury nos.6,7 and 8 are defence wounds.

One incised wound 3/4'' x .3'' muscle placed over lateral surface of left elbow region with tailing for .3'' towards tip of elbow.

One incised wound 3'' x ½'' x muscle and vessel obliquely placed over ventral surface of right forearm 4'' above right wrist.

One incise wound 2'' x ½'' x muscles and vessels placed over ventral surface of right forearm more or less parallely placed with injury no. 10

with ½'' apart. Both injury nos. 10 and 11 injured radial and ulnar vessels on right side.

One incised wound 4½'' x .4'' x metacarpal bone placed obliquely over dorsal surface of right hand involving upper part of all the metacarpal

bones ending by making an incised cut over them.

4 incised wounds each measuring .5'' x .2'' x bone, .7'' x .2'' x bone, .5'' x .2'' x bone, .3'' x .2'' x bone obliquely placed over dorsal aspect of right

index middle ring and little fingers and they are found to be in same alignment and hence appear to have been caused by same strike. On dissection

the injuries were seen to have cut the skin, muscles, tendons and bone correspondingly through and through to terminate in the vessels of the finger on

palmer aspect correspondingly directed dorsal to ventral aspect. Injury on 10 to 13 are defence wounds.

In the opinion of the doctor(P.W.16), death was due to effects of the injures mentioned above which were ante mortem and homicidal in nature.

P.W.16 was also of the firm opinion that the injuries were not self inflicted rather it suggested that some one injured her and that all the injuries were

caused by sharp cutting weapons. According to the doctor, injury no. 1 was sufficient to cause death and other than injury no. 1, if other injuries are

taken up conjointly in that case also death may be caused. P.W.16 was cross-examined by the defence but her evidence remained unshaken. The

opinion given by P.W.16 was also concurred by P.W.13, the then Professor and Head of the Department F.S.M., B.S.M.C. & H, Bankura. The

evidence of both the doctors remained unshaken and as such there was no reason to disbelieve their evidence.

Now with regard to above injuries sustained by the victim, it was the specific allegation of the prosecution that the appellant assaulted the victim/wife

with a ‘boti’ causing severe bleeding injuries on her person resulting in her death which the defence has denied and taken the plea that the

injuries were self inflicted. It is evident from the record that the entire case is based on the circumstantial evidence and extra-judicial confession of the

appellant. 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 recovery of the dead

body of the victim from the house of the appellant having severe incised wounds of multiple description and the opinion of the doctor as to the cause of

death, seizure of blood stained 'boti' from the place of occurrence, blood stained wearing apparel of the accused-appellant and his voluntary surrender

at the P.S. immediate after the incident and the extra-judicial confession amongst others. In the matter of acceptability of extra-judicial confession, it is

a well settled proposition that if such extra-judicial confession is made voluntary and in a fit state of mind and the evidence of extra-judicial confession

is reliable, trustworthy and beyond reproach and passes the touchstone of credibility it can be accepted and can be the basis of a conviction.

P.W.6 has specifically stated on oath that on November 7, 2000 while he was on Sentry Duty from 2 p.m. to 4 p.m. at the Gangajalghati, P.S.

Burdwan, appellant having blood stains on his wearing apparels came there and told him that he wants to surrender and he be arrested as he has

murdered his wife. He then called the officer in charge of the P.S. (P.W.11)who then came there and then appellant told him that he will show the

place where his wife was lying dead. He identified the appellant in course of his examination before court. He was crossexamined by the defence but

his evidence remained unshaken. The above statements of P.W.6 also found corroboration from P.W.11,the officer-in-charge,Gangajalghati, P.S. who

categorically stated that on the relevant date at about 15.32 hours appellant came to the P.S. and surrendered himself before the sentry Ajit Day

(P.W.6) who then called him. Accordingly,he came there and found the appellant standing in front of the said sentry and his wearing apparels were

soaked with blood stains. Appellant then told him that he has murdered his wife with a boti and the said boti is lying by the side of the dead body and

for to this he was soaked with blood stained on his wearing apparels.

Appellant also told him that he tried to flew away but when he realized that he would be arrested, so he surrendered at the P.S. He then diarised the

said information in the GDE book (Ext.5) and also recorded the statements of the appellant and went to the the house of the appellant along with the

appellant where he found the dead body of the victim and also found one blood stained boti without handle, one blood soaked mat, bat of the said boti

lying at the place of occurrence, broken conch bangles and bangles made of pala and sacred iron bangle which he seized under proper seizure-list

(Ext.6) and also held inquest over the dead body and prepared report (Ext.7) and thereafter prepared the dead body challan (Ext.8) and sent the dead

body for postmortem examination. He also sent the appellant to B.M.O.H. Amarkanan PHC for his examination. He also identified the appellant in

course of his examination before court. He was cross-examined by the defence at length but nothing came out contrary to his statements-in-chief.

Interestingly, he was not challenged by the defence that on the relevant date and time appellant did not surrender at the Gangajalghati P.S. nor he

confessed before them that he has murdered his wife with the help of boti nor he made such confession voluntarily. On the other hand by putting

suggestion to P.W.11,the I.O., defence tried to prove that it was the victim who herself committed suicide by severing her throat with the help of a

boti which he did not agree.

It was evident from the evidence of P.W.15,the doctor of Amarkanan PHC, that on the very date at 6.40 P.M. he examined the appellant to ascertain

his mental condition and on examining the appellant he found him psychologically normal and fit. Even during examination of the appellant he found

appellant's both hands with clotted blood and the blood sprinkled on both the hands and lower and upper limbs and his wearing apparels were soaked

with blood. According to P.W.15, appellant confessed before him that he has murdered his wife Saraswati Bouri at 2:45 hours by a dharalo boti and

accordingly he recorded the same in the injury report (Ext/9). The above statements of P.W.6 and P.W.11 that on the relevant date and time appellant

went to the Gangajalghati P.S. and at that time his wearing apparels were stained with blood as also the statement of the doctor (P.W.15) that on

November 7, 2000 at 6.40 p.m he examined the appellant at the Amarkanan PHC and during examination he found both hands of appellant with

clotted blood and there were stains of blood on his wearing apparels and other parts of his body found corroboration from the statements of the

accused/appellant made during his examination under Section 313 of the Code of Criminal Procedure.

Thus from the above we find that the evidence of P.W.6 with regard to appellant's confession in causing death of the victim-wife found corroboration

both from P.W.11 and P.W.15. The evidence on record also shows that such confession was made before the appellant was taken into custody in

connection with the murder in question. No suggestion was put to either of the above witnesses by the defence to show any enmity or ill will towards

the appellant and/or that appellant was not in a fit state of mind when he made such confession and/or that such confession was made under any

coercion or threat and not voluntarily.

Nothing was also brought on record from the side of the defence to suggest that the appellant was not in a fit state of mind. On the other hand from

the evidence of doctor (P.W.15) who examined the appellant on the relevant date it reveals that he was in a fit state of mind. Defence failed to bring

any iota of evidence to impeach the credibility of P.W.6, P.W.11 and P.W15 with regard to their statements that the appellant made extra judicial

confession before them that he killed his wife by inflicting injuries on her person by boti. Under the circumstances, there appears no reason to

disbelieve the evidence of the above witnesses made on oath. Learned court below taking into account the entire circumstances came to the

conclusion that the extra-judicial confession of the accusedappellant was true and voluntary. We do not find any error with regard to the above

conclusion of the learned court below in the light of the settled proposition of law. Therefore, the propriety of the impugned judgment cannot be

questioned on the above ground.

The instant case was initiated on the basis of the written complaint of the mother of the victim scribed by P.W.14 but during examination before court

P.W.2 narrated a different story claiming that her daughter was mad and she herself severed her throat in her presence and that most of her family

members are suffering from mental disease. She even went on to deny that she lodged any FIR to the P.S. and as such she was declared hostile by

the prosecution. P.W.14,the scribe, though admitted that the complainant was present when he scribed the complaint and it was written after the death

of the daughter of the complainant and the same bears her LTI but during cross-examination he went on to say that he wrote the complaint as per

dictation of the officer-in-charge. The daughter of the victim (P.W.3) also narrated a different story with regard to the death of the victim claiming

that her mother Saraswati Bouri was mad and she was influenced by the witch or by the spirit of god and she suddenly in her presence and in

presence of her grand mother severed her throat with the help of a boti while her father was outside in a pan biri gumti. She was also declared hostile

by the prosecution and was challenged by the prosecution that during investigation she stated to the investigating officer that while she was taking

meal a quarrel took place in between her mother and father and she then went out from the house and after some time when she returned back she

did not find her father and her mother was lying on the veranda with a severed throat and profuse bleeding and thereafter police and local people

came there to which she denied. But from the evidence of P.W.11, the investigating officer, who examined P.W.3, it reveals that during investigation

she stated all these to him.

According to the settled proposition of law, the entire evidence of hostile witnesses cannot be washed off the record rather it is admissible to use the

examination-in-chief as well as cross-examination of those witnesses in so far as it supports the case of the prosecution and there is no bar to base the

conviction of the accused upon such testimony, if corroborated by other reliable evidence.From the evidence of P.W.11, the investigating officer, it

reveals that during investigation P.W.2 stated to him that on November 7, 2000 at 2 p.m. appellant Mantu Bouri murdered his wife Saraswati at his

house with the help of a boti and she was present at the time of murder. Interestingly,P.W.11, the investigating officer, was not challenged by the

defence that during investigation he did not examine those witnesses nor recorded their statement under Section 161 Cr.P.C.

Thus from the evidence of the investigating officer it is crystal clear that both P.W.2 and P.W3 have not revealed the truth before the court during

their examination on oath. Furthermore,the plea taken by P.W.2 and P.W.3 that the victim was mad and suffering from mental disease and/or that she

was influenced by the witch or by the spirit of god did not found corroboration from any quarter. Not a single scrap of paper was produced nor any

single independent witness supported the above claim of P.W.2 and P.W.3 that the victim was mad and/or suffering from any mental problem nor

even the appellant either during his examination under Section 313 Cr.P.C. or while deposing before the court on oath. As such the claim with regard

to the mental condition of the deceased does not appear to be believable. Even their claim that victim herself committed suicide by severing her throat

was belied by the autopsy surgeon (P.W.16) who found 13 injuries on the person of the victim and denied that those injuries were self inflicted.

P.W.16 clearly stated that the injuries found on the person of the victim suggests that someone injured her. Surprisingly, she was not challenged by the

defence on that score and as such there was no reason to disbelieve her.

Accused/appellant examined himself as DW1 and during his examination he claimed that at the time of death of his wife he was outside the house and

he came to learn from his mother-in-law that his wife committed suicide by injuring herself and he saw the dead body with bleeding injury and as such

he lifted her dead body from the courtyard to verandah for which his hands and wearing apparels were soaked with blood and thereafter he went to

the P.S. and from the P.S. he came to his house with the police. During cross-examination by the prosecution he admitted that he went to the P.S. on

his own accord and police seized one boti, mat and other articles from the side of the dead body which was soaked with blood and police also seized

his wearing apparels. He also admitted that at the time of shifting of the dead body of his wife he was also taken away at the P.S. and from the P.S.

he was taken to Amarkanan Hospital and at that time his wearing apparels and hands were soaked with blood. P.W.8 and P.W.9 were the witnesses

to the seizure of blood stained wearing apparels of the deceased. However, no explanation was given by the appellant while adducing evidence before

court or subsequent thereafter about what prompted the victim to commit suicide as claimed by him. On the other hand autopsy surgeon (P.W.16)

found 13 incised wounds on the person of the victim of which, according to the doctor, injury Nos. 10 to13 were defence wounds and she opined that

the injuries were caused by sharp cutting weapon.

This was not challengers by the defence. So the plea taken by the defence that the injuries were self inflicted and/or that she committed suicide falls

flat in view of the unchallenged testimonies of the autopsy surgeon. Now what we find from the record that the learned Court below on overall

evaluation of the entire evidences on record especially the evidences of P.W.6 and P.W 11 together with the evidence of P.W.15,the doctor,who

examined the appellant and found him mentally and physically fit and before whom also appellant made confession, the evidence of autopsy

surgeon,P.W.16 and her opinion ruling out the claim of suicide and the place of occurrence, conduct of the appellant, extra judicial confessions and

other material facts to arrive at the conclusion that prosecution had been able to prove the charge against the appellant for committing murder of the

victim. From the GDE (Ext.5), Inquest report (Ext.7) as also the evidence of P.W.12,the investigating officer who submitted charge-sheet, it appears

that there was element of discord between the appellant and the victim over the reported affair of the victim with a person of their village but during

trial such fact did not surface rather plea of suicide was taken by the defence and as such learned trial judge did not dwell on that issue. However, the

number and nature of the injuries sustained by the victim themselves suggested the intention of the assailant to finish the victim.

Therefore, there was no impropriety on the part of the learned Court below to pass the impugned judgment and order of conviction and sentence in

this case against the appellant. The circumstances from which the conclusion of guilt was drawn cannot be interfered with. In view of the above, we

have no difficulty in reaching the conclusion that the conviction of the appellant Mantu Bauri under section 302 IPC and the sentence imposed

thereunder is fully justified. 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.