Nepal Bouri vs State Of West Bengal

Md. Mumtaz Khan, J

Appellant has preferred this appeal assailing the judgment and order of conviction and sentence dated September 15, 2009 and September 16, 2009

respectively passed by the learned Additional District and Sessions Judge, Fast Track Court No. 4, Raghunathpur, Purulia in Sessions Trial No. 34 of

2007 arising out of Sessions Case No. 122 of 2007. By the impugned judgment appellant was convicted and sentenced to suffer rigorous imprisonment

for life and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for 6 months more for the offence punishable under Section 302 of

the Indian Penal Code (hereinafter referred to as IPC), rigorous imprisonment for 03 years and to pay fine of Rs. 5,000/- in default rigorous

imprisonment for a further period of 02 months for the offence punishable under Section 25 of the Arms Act and rigorous imprisonment for 07 years

and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment for a further period of 03 months for the offence punishable under Section 27

of the Arms Act with a direction that all the sentences shall run concurrently and the period of detention undergone during investigation, inquiry and

trial be set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.)

On December 29, 2006 at 18.15 hours P.W.18 received one telephonic information from one Kariram Das of village Mohuda that the appellant

entered the house of P.W.1 and opened fire killing the minor child of P.W.1 aged about 3 ½ years on the spot. On getting the said information

P.W.18 diarized the same in the P.S. GDE book and proceeded to the place of occurrence. On reaching at the spot P.W.18 found a small boy lying on

a cot and in a pool of blood on the floor of the courtyard. P.W.18 held inquest over the dead body of the child in presence of the witnesses and

prepared the inquest report (Ext.2). During inquest he found bullet injury on the occipital region of the deceased and also found one 8 mm empty

cartridge lying beside the body. The name of the appellant surfaced during inquest as the assailant.

P.W.1 submitted one written complaint (Ext.1) to P.W.18 at the place of occurrence alleging that on that date at about 4.30/4.45 hours appellant, over

a previous grudge and quarrel over the incident of eating of paddy by a cow, entered into his house and while threatening him and his wife, brought out

one revolver and suddenly opened fired. As a result, a bullet pierced into the mouth of his son Samir Kisku aged about 3 ½ years standing in front of

his wife and got out from back side of his head. As a result, his son died in the courtyard. P.W.18 sent the complaint to the P.S. through P.W.7 for

starting a case and accordingly, on receipt of that complaint, P.W.8 started Neturia P.S. Case No. 33/06 dated December 30, 2006 under Section 302

IPC and under Sections 25/27 Arms Act against the appellant and informed him about starting of the case.

On December 30, 2006, P.W.4 conducted postmortem examination over the dead body of the victim and during postmortem examination he found one

entry wound, just lateral to right angle of mouth, exit wound middle of occipital region, intra cerebral hemorrhage and opined that death was due to

shock and hemorrhage due to the above injury caused by a firearm, ante mortem and homicidal in nature.

P.W.18 who had already taken up investigation of the case after completion of the same submitted charge against the appellant under Sections 302 of

the IPC and 25/27 of the Arms Act.

On August 21, 2007 charges under Sections 302 IPC and 25/27 of the Arms Act were framed against the appellant and on his pleading not guilty to

the charges, trial commenced.

Prosecution in order to prove its case examined 18 witnesses namely the defacto complainant (P.W.1), scribe of the complaint (P.W.2), co-villager

(P.W.3), Autopsy surgeon (P.W.4) who conducted P.M. examination, mother of the victim (P.W.5),an eye witness, defacto complainant’s

brother’s wife (P.W.6) also an eye witness, the constable (P.W.7)who took the written complaint to the P.S., the recording officer (P.W.8),

neighbours (P.W.9 and P.W.10), witnesses to the seizure of the weapon of offence (P.W.11, P.W. 12 and P.W.16), Assistant Sub-Inspector of Police

(P.W.13) who accompanied the investigating officer to the place of occurrence, clerk of the office of District Magistrate, Purulia (P.W.14) who

produced and proved the order of the District Magistrate according sanction for prosecution, Arms Expert (P.W.15), the Judicial Magistrate(P.W.17)

who recorded the statement of the witnesses under Section 164 Cr.P.C. and the investigating officer(P.W.18) who submitted the charge sheet and

also produced and proved the Written Complaint (Ext.1), Formal FIR (Ext.7), Rough sketch map with index (Exts.14, 14/1, 16, 16/1), Inquest report

(Ext.2), PM report (Ext.5), Seizure lists (Ext.3 & 8), Order according sanction for prosecution (Ext.9), Statements recorded under section 164 Cr.P.C.

(Exts. 4, 6, 11, 12, and 13), opinion of the expert (Ext.10) as also seized articles (Mat. Exts. I to IV) and thereafter on completion of trial and after

examination of the appellant under Section 313 Cr.P.C., the learned trial judge passed the impugned judgment.

Mr. Moinak Bakshi, learned advocate appearing for the appellant in all his fairness submitted that appellant is not a habitual offender and the height of

the victim and the appellant and the distance itself suggest that it was an accidental fire and there was no intention to kill the child.

Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State submitted that the incident occurred in broad day light in presence of P.W.5,

mother of the child and her sister-in-law P.W.6 who fully corroborated the prosecution case and their evidence remained unshaken during cross-

examination and the above statement of the eye witnesses also found corroboration from the statement recorded under Section 164 Cr.P.C. and the

medical evidence. He further submitted that no suggestion was put by the defence to the witnesses during trial that it was an accidental fire.

According to Mr. Roy Chowdhury prosecution has been able to prove the charges against the appellant and the learned trial judge was quite justified

in passing the order of conviction and sentence against the appellant.

We have considered the submissions of the learned advocates appearing for the respective parties and have gone through the evidence and the

documents on record to consider the propriety of the impugned judgment.

On perusal of the evidence of the autopsy surgeon (P.W.4) and the PM report (Ext.5) it was evident that on December 30, 2006 during post mortem

examination over the dead body of the victim child, P.W.17 found---- i) one entry wound----just lateral to right angle of mouth, scorching and burning

around the entry wound was present, ii) exit wound--- middle of occipital region and burning of occipital bone at middle was present, iii) fracture @

mandible was present over right upper part at middle and iv) entry wound was smaller than exit wound. After dissection doctor found---i) there was

subcutaneous haematoma over occipital region and rounded opening was present in middle, ii) intra cerebral hemorrhage was present and accordingly,

opined that death was due to shock and hemorrhage due to the above injury caused by a firearm, ante mortem and homicidal in nature. His evidence

remained unshaken during cross-examination. As such there was no reason to disbelieve him.

P.W.1, father of the victim and the FIR maker has corroborated the FIR and specifically stated on oath that on December 29, 2006 at about 4.35 p.m.

while he was working in his cow-shed and his minor son, the victim, was playing in the courtyard, appellant came in the courtyard and started

threatening his wife (P.W.5) and his elder brother’s wife (P.W.6) uttering “tora khub mostan hoyechis, barabari korchis, toder guli kore mere

deboâ€. He was hearing the voice of the appellant from the cow-shed. He then heard the sound of firing and at once came out of his cow-shed and

saw the victim child sustained bullet injury lying in the courtyard with bleeding injury and saw the appellant having firearm in his hand. Appellant also

attempted to kill him also but somehow he managed to escape from the place. According to him two days before the incident an altercation took place

with the appellant over the issue of eating of their paddy by the cow of the elder brother of the appellant and in connection with the said altercation

appellant came to their courtyard for taking revenge. He is also witness to the inquest (Ext.2) and seizure of blood stained earth, controlled earth and

the empty cartridge by a seizure list (Ext.3). He also made statement before the Magistrate under Section 164 Cr.P.C. (Ext.4) and before the

Magistrate also he stated that appellant killed his son by firing. He was cross-examined by the defence and during cross also he stated that his

cowshed is attached to his dwelling room and he heard sound of firing while he was inside the cowshed. He denied the defence suggestion that

someone had killed his son by inflicting bullet injury by a fire arm.

The above statements of P.W.1 also found corroboration from the eye witnesses (P.W.5 and P.W.6), the post occurrence witnesses (P.W.9 and

P.W.10) and the medical evidence.

P.W.5, mother of the victim, has specifically stated that on the relevant date and time while she was gossiping with her sister-in-law (P.W.6) in the

courtyard of her house and her youngest son was on her lap and the victim was playing in the courtyard and her husband (P.W.1) was in the cow-

shed then at that time appellant came to their courtyard and started quarreling with her and P.W.6 over the issue of altercation which took place few

days back and threatened to kill her and her child. Appellant then took out a pistol from his waist and opened fire to her minor son (victim) as a result

victim sustained bullet injury on his head and fell on the ground. Her husband (P.W.1) then came out from the cow-shed, then appellant also

threatened her husband to kill by showing that pistol. She and her sister-in-law (P.W.6) then started crying, appellant then fled away therefrom. She

identified the appellant in course on her examination before court. She also made statement before the Magistrate (Ext.6) and clearly stated that

appellant killed her son by firing. P.W.6, sister-in-law of P.W.5, has also stated that on the relevant date and time while she and P.W.5 were gossiping

in the courtyard then appellant came in the courtyard and charged them why then picked up quarrel with his elder brother and then took out one pistol

and fired at the victim as a result victim sustained bullet injury in his cheek and fell on the ground. P.W.1 who was in the cow-shed rushed there then

appellant fled away therefrom. She also made statement before the Magistrate (Ext.11) and there also she clearly stated that appellant killed the

victim by firing. She too identified the appellant in course of her examination before court. They have given vivid description of the entire incident

which remained unshaken during cross-examination. Their evidence on oath appears to be trustworthy and reliable and nothing was brought out by the

defence to discredit them. The injuries found on the person of the deceased by the doctor P.W.4 supports their claim.

P.W.9 and P.W.10, the neighbours of the defacto-complainant, have also deposed that on the relevant date and time while they were thrashing paddy

in their house they heard a sound of firing from the house of P.W.1 and also noises therefrom. They rushed there and saw the appellant having a small

gun in his hand and also saw the victim lying on the ground with bleeding injury. On being asked about why he killed the child, the appellant threatened

them. As such, out of fear they left the place. They too made statements before the Judicial Magistrate (Exts.12, 13) and clearly stated about the

involvement of the appellant in killing the victim. They also identified the appellant in course of trial. They too were cross-examined by the defence at

length but nothing came out contrary to their statements-in-chief.

P.W.2, P.W.3 and P.W.13 are witnesses to the seizure of the blood-stained earth, controlled earth, an empty cartridge from the place of occurrence

by a seizure list. P.W.11, P.W.12, P.W.13 and P.W.16 are the witnesses to the seizure of the firearm namely, the weapon of offence.

P.W.11 has deposed that on the relevant date at about 7 p.m. he visited the house of P.W.1 and saw the dead body of the victim lying in the courtyard

and learnt from P.W.5 that the victim sustained bullet injury on being fired by the appellant. He saw the injury on the right cheek of the victim. He

identified the appellant in court. He also deposed that on December 30, 2006 15.45 hours police officer recovered one revolver from the house of the

appellant and seized the same by a seizure list on which he put his signature. He identified his signature (Ext. 8/1) on the seizure list. P.W.12 has

deposed that on the relevant date on hearing hue and cry from the house of P.W.1. he went there and saw the dead body of the victim in the

courtyard and then learnt from P.W.1 that the appellant murdered the victim by a small gun. On the following day at about 3.30 a.m. police arrested

the appellant and in their presence appellant confessed that he committed murder of the victim and had hid the gun in his house. Thereafter, appellant

brought out the offending gun from inside his house in their presence and handed over the said to the police. Police then seized the said gun by a

seizure list and he put his signature (Ext. 8/2) in the seizure list. He identified the firearm namely, the pistol and also the appellant in course of his

examination before court. He was cross-examined by the defence and during cross-examination he affirmed his statement made during his

examination in chief and specifically stated that appellant in their presence brought out the firearm from a hole of the south side wall of his house and

handed over the same to the police in his presence. He also specifically stated that the shirt of the appellant was stained with blood. The above

statement of P.W.12 also found corroboration from P.W.13 and P.W.16 other witnesses to the seizure. They too have specifically stated that on the

relevant night appellant was arrested and he confessed before the villagers and the police that he committed murder of the victim and that he would

bring out the offending gun which he had hidden and thereafter the appellant brought out the said gun (Mat Ext.II) from the hole of the south side wall

of his house and handed over the same to the police which the police seized by the seizure list on which they signed. They identified the Mat. Ext.I,

Mat. Ext.II and Mat. Ext.III namely, pink coloured shirt, firearm and empty cartridge. They also identified the appellant during trial before court. Thus

from the above we find that the statement of P.W.18 that he recovered the firearm and the blood-stained wearing apparel from the house of the

appellant being handed over by the appellant found corroboration from P.W.12 ,P.W.13 and P.W.16. P.W.11 too identified his signature on the seizure

list. The claim of P.W.12, P.W.13 and P.W.16 about the extra judicial confession of the appellant also find corroboration from P.W.18.

P.W. 14, clerk of the office of D.M., Murshidabad, proved the sanction order for prosecution (Ext.9) accorded by the District Magistrate. P.W.15, the

arm expert who examined the firearm and empty cartridge, on examination found it was an improvised firearm, endangering to human life which falls

under the preview of Arms Act. He found the said firearm in working condition and on testing he found the said cartridge was used by the said fired

arm and it matched.

Now to sum up the entire evidence on record, we find that on December 29, 2006 in the evening on getting information of the incident when P.W.18

along with P.W.13 and force went to the house of P.W.1 he found dead body of the victim having bullet injuries on the head was lying in the court

yard and one empty cartridge was also lying near the dead body. Inquest was held in presence of the witnesses and during inquest the name of the

appellant surfaced to be the assailant. One written complaint (Ext.1) was submitted by P.W.1 which was forwarded to the P.S. through P.W.7 for

starting a case. P.W.18 took up investigation of the case and during investigation seized the empty cartridge (Mat. Ext.III), blood-stained earth,

controlled earth etc. from the place of occurrence by a seizure list (Ext. 3) in presence of P.W.2, P.W.3 and P.W.13 and sent the dead body for

postmortem examination. During postmortem examination, the autopsy surgeon(P.W.4) found one entry wound, just lateral to right angle of mouth, exit

wound middle of occipital region, intra cerebral hemorrhage and opined that death was due to shock and hemorrhage due to the above injury caused

by a firearm, ante mortem and homicidal in nature. P.W.5 and P.W.6, the eye witnesses, have vividly narrated the entire incident leading to the death

of the victim and clearly stated that appellant came to their courtyard and started quarreling with them over the issue of altercation which took place

few days back and while threatening to kill P.W.5 and her child took out a pistol from his waist and fired at victim as a result victim sustained bullet

injury on his head and died on the spot. When P.W.1, father of the victim, P.W.9 and P.W.10, the neighbours, on hearing the cries and sound of firing

came there, they saw the appellant having firearm standing there and the victim was lying dead having sustained bullet injury. Appellant also

threatened them to kill and thereafter fled away from the place. P.W.2, P.W.3, P.W.11 and P.W.12 also came to the place of the occurrence on

getting the news and saw the dead body of the victim and heard about the commission of the offence by the appellant. Appellant was absconding and

only on the basis of the source information he was apprehended by P.W.18 on the next day of the incident and the fire arm (Mat. Ext.II) was

recovered from his possession in presence of witnesses namely P.W.11, P.W.12, P.W.13 and P.W.16. P.W.12, P.W.13 and P.W.16 have duly

narrated the recovery and seizure of the fire arm (Mat. Ext.II) etc. The said firearm (Mat. Ext.II) on examination by the Arms Expert (P.W.15), was

found to be an improvised firearm, in working condition, endangering to human life, if fired and the empty cartridge (Mat. Ext.III) was used by Mat.

Ext.II some days before examination and it matched with Mat. Ext.II. No valid document or licence for possession of the said firearm was produced

from the side of the defence. Even during examination under section 313 Cr.P.C. appellant did not put forth any defence or anything else save and

except taking the only plea of 'false' to each and every questions put to him. Be that as it may, the motive behind the killing of the victim has duly been

narrated in the FIR and corroborated by P.W.1, P.W.5 and P.W.6.

Regarding the plea that appellant is not a habitual offender and it was accidental fire, we find from the evidence on record that incident took place in

the courtyard of P.W.1 where appellant came with an unlicensed firearm over previous grudge and while threatening to kill fired at the child on the

head causing instant death. It may be true that nothing has been brought on record to show that appellant was a habitual offender but the manner in

which the incident took place and carrying of an unlicensed firearm over previous grudge and then firing at the child on the head while threatening to

kill itself shows that intention was very much clear to cause the death.

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.