Calcutta High Court (Appellete Side)
Pintu Manna @ Paresh vs The State Of West Bengal on 13 February, 2012
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
1 FORM NO.(J1) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION Present:
Hon'ble Justice Girish Chandra Gupta And Hon'ble Justice Tarun Kumar Gupta CRA No. 125 of 2006 Pintu Manna @ Paresh Vs. The State of West Bengal Advocate for the appellants: Mr. Subir Banerjee Mr. Jayanata Banerjee Mr. Ratan Das Advocate for the State: Mr. Siladitya Sanyal Mr. Sandip chakraborty Hearing concluded on: 11.01.2012 Judgment delivered on: 13.02.2012 GIRISH CHANDRA GUPTA J.
This appeal is directed against a judgment dated 29th November, 2005 passed by the learned Additional Sessions Judge, 3rd Court, Alipore, South 24 Parganas, in Sessions Case No. 40(11)2000 connected with Sessions Trial No. 3(7)2001 arising out of Metiaburuz P.S. Case No. 73 of 2000 dated 29th May, 2000 by which the learned Trial Court held the appellant guilty of an offence punishable 2 under Section 302 of the Indian Penal Code and acquitted the co-accused Kalpana of the charge under Section 302 read with Section 114 of the Indian Penal Code. By an order dated 30th November 2005 the sole convict was sentenced to rigorous imprisonment for life as also to pay a fine of Rs. 2,000/- in default he was sentenced to undergo further rigorous imprisonment for a year.
The facts and circumstances of the case briefly stated are as follows: -
Kalpana, aged about 30/35 years, wife of the de facto complainant Chandbaran Bhattacharjee was a neighbour of the convict/appellant. She earned the reputation of an amorous woman. She had also developed intimacy with the appellant. She, prior to the incident, had left her house and sojourned in the house of the appellant and was restored to her matrimonial house by her husband Chandbaran Bhattacharjee with the active assistance of Kashinath a youth aged about 30/32 years. The said Kashinath was an employee of Garden Reach Ship Builders and Engineers Ltd., Government of Indian Undertaking. On 29th May 2000 the said Kashinath was gossiping with chandbaran Bhattacharjee in front of the Fatehpore Harisabha. All on a sudden the appellant broke in upon them and dealt blows with a Katari upon Kashinath. Chandbaran Bhattacharjee was also chased and 3 he took shelter in the house of Harendra (P.W.6). The assault was fatal. Kashinath died on the way to the hospital. P.w.8 informed the police over telephone and the same was received by the P.w.5. The police thereafter arrived at the P.O.; recorded the statement of the de facto complainant Chandbaran Bhattacharjee and that is how the aforesaid Metiaburuz P.s. Case No. 73 of 2000 dated 29th May, 2000 was started. On 18th July, 2000 the appellant was apprehended by the police and based on a statement made by him, marked ext.24 the offending weapon was recovered from inside a pond in the presence of the witnesses. He was also presented before the learned Magistrate after he expressed his willingness to confess his guilt. He as a matter of fact was produced in Court on 25th July, 2000. From the order sheet it appears that he told the learned Magistrate that he had committed crime and wanted to confess. He was however administered caution and given time for further reflection over the matter and was directed to be kept in seclusion. On the returnable date he refused to make any confession and added that whatever he had told on 25th July, 2000 was on the basis of instigation by the Police. Both the appellant and the said Kalpana were charged, Kalpana was acquitted and the appellant was convicted as indicated above.4
18 witnesses were examined. P.W.1 is the de facto complainant and also an eyewitness. Other eyewitnesses are P.W.6, P.W.8, P.W.15 and P.W.16. P.W.15 however turned hostile. Recovery of the offending weapon was made in presence of the P.Ws.8 and16. P.W.5 received the initial telephone call intimating the incident and also recorded the statement of the de facto complainant. P.w.7 prepared the inquest report. P.W.4 is a Police Officer who started the case. P.w.18 is the I.O. P.W.11 Dr. Bhattacharjee declared the victim brought dead at the hospital. P.W.17 also known as Dr. Bhattacharjee is the autopsy surgeon. P.W.9 is the mother of the deceased. She is a pre-incident eyewitness. P.W.3 is the Judicial Magistrate. P.W.12, P.W.13 and P.W.14 are the official witnesses. P.W.2 was merely tendered. During cross-
examination he deposed that Fatapur 2nd Lane was a very crowded area.
Mr. Banerjee, learned Advocate appearing for the appellant advanced the following submissions:-
(a) The testimony of the eyewitnesses examined in the case is not believable.
(b) The two persons who had shifted the victim to the hospital were not examined.
(c) The alleged recovery of the offending weapon from an open place accessible to all is not 5 believable. He in support of his submission relied on the following judgments.
(i) Kora Ghasi Vs. State of Orissa reported in AIR 1983 SC 360. (ii) Abdul Sattar Vs. Union Territory, Chandigarh reported in 1986 Cr.L.J. 1073 (SC). (iii) Sattatiya Vs. State of Maharashtra reported in 2008 (3) SCC 210.
He added that ext. 24 purporting to be an extract of the statements allegedly made by the victim leading to alleged discovery is not admissible in evidence.
In support of his submission he relied upon the judgement in the case of Phusu Koiri Vs. State of Assam reported in 1986 Cr.L.J. 1057 (Guwahati). He also relied upon a judgment in the case of Niranjan Panja Vs. State of West Bengal reported in 2010 (6) SCC 525.
(d) Neither the so-called offending weapon nor the wearing apparels seized by the police was sent to the Forensic Science Laboratory.
(e) Lastly he submitted that in any event considering the nature of injury the conviction may be stepped down from Section 302 I.P.C to Section 304(Part-1) I.P.C.
6Mr. Sanyal, learned Additional Public Prosecutor disputed each of the submissions advanced by Mr. Banerjee. According to him the case of the prosecution was proved to the hilt. The offence was a pre-planned one and there is no question of stepping down the conviction. He concluded by saying that this Court should dismiss the appeal and refrain from interfering with the judgment and order under challenge.
We shall now deal with the submissions advanced by Mr. Banerjee.
Criticising the evidence of the eyewitnesses Mr. Banerjee contended that the P.W.1 the de facto complainant during his examination in chief deposed that Haren Mukherjee (P.W.6), Rabin Bhattacharjee (P.W.8) and his wife accused Kalpana were present at the time of the incident. Whereas according to Haren Mukherjee (P.W.6) he at the relevant point of time was at his home. P.W.6 added that he had given shelter to the P.W.1 when he came running and crying for help which is not however the case of the P.W.1. P.W.1 deposed that Haren Mukherjee (P.W.6) and Rabin Bhattacharjee informed the police telephonically whereas P.W.6 deposed that at about 6.45 P.M. police came to his house. He also deposed during the examination-in-chief that he was not present at the spot 7 when the murder took place. Even assuming that P.W.6 had given shelter to the P.W.1, his evidence looses credibility because of the fact that P.W.6 did not depose as regards any information given to him by the P.W.1 about the murder. Mr. Banerjee assailing the evidence of P.w.1 added that there is no definite evidence as to where was his statement under Section 154 Cr.P.C recorded by the Police.
The criticism advanced by Mr. Banerjee factually is correct. We are however unable to accept the submission that the P.W.1 is not an eyewitness or that he did not see the incident. Even the P.W.6 deposed that he found an injury in the leg of the P.W.1. P.W.6 added that " on being asked he told me that Pintu Paramanick attacked him with a Katari". P.W.1 does not appear to have made an untrue statement from the witness box when he deposed that Haren Mukherjee and Rabin Bhattacharjee were present at the P.O. because during his cross-examination he deposed that " when I was called at the spot by Haren Mukherjee and Rabin Bhattacharjee I saw a Police van there". Therefore Haren was there at the P.O. No specific question was put to him as to whether Haren was there since prior to the incident.
Considering the gravity and suddenness of the incident which the P.W.1 faced it is not unusual if he was unable 8 to recall definitely as to where did he make the statement to the Police. According to the P.W.5 the statement of the de facto complainant was recorded at the P.O. itself but the P.W.1 deposed that he lodged the written complaint at the police station. Mr. Banerjee wanted to score a point out of these variations to which we are unable to attach any importance. After P.w.1 was provided shelter at the house of Haren Mukherjee ( P.W.6) it is quite probable that Haren Mukherjee went to the place of occurrence being called by the police. The fact that police went to the house of Haren Mukherjee provides assurance to the court that the P.W.1 had indeed taken shelter in his house. We are as such unable to hold that the evidence of the P.W.1 and 6 in substance lacks a ring of truth. We may fruitfully recall the guideline expressed in the case of Shivaji Sahabro Bobade and another Vs. State of Maharastra reported in 1973 (2) SCC 793 wherein their Lordships opined as follows:
" When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narration's and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth 9 and conformity to probability in the substantial fabric of testimony delivered."
During his cross-examination the P.W.1 deposed that " I took my wife to my house from the house of Pintu Manna along with Kasinath and at that time Pintu threatened Kasinath and myself." He also deposed during his cross- examination that he "left the house for 4/5 days out of fear. I informed the police and to my neighbors about the intimidation exerted by Pintu Manna. I informed the police about the intimidation in writing. I do not know what was the fate of that complaint to the Police."
The suggestions given to the P.W.1 during his cross- examination by the defence lends further assurance to the court as regards his presence at the P.O.: "Not a fact that I am responsible for the death of Kasinath Naskar, since I arranged it by 2/ 3 persons. I did not support the incident of striking Kasinath by the accused persons."
The following suggestions given to the P.W.16, cousin of the de facto complainant, establishes presence of both the P.W.1 and P.W.16 at the P.O.:
10" Not a fact that while Pintu was striking repeatedly, at that time chandu Bamoon and some persons surrounded them."
The P.W.1 during his cross-examination deposed that the "accused Pintu struck Kasinath on his throat".
P.W.16 corroborated the deposition of the P.W.1. During his cross-examination he deposed that " while Kasinath was hit by a Katari repeatedly, I along with others did not try to catch Pintu." He further deposed that after "fleeing away of Chandu Bamoon being chased by Pintu, I saw that para people assembled there."
The evidence of both P.Ws.1 and 16 finds corroboration from the evidence of the autopsy surgeon, who found the following injuries on the dead body.
(1) Incised penetrating wound on the left side of the neck at the left temporal mandible and region 2½" X ½" X muscle X bone pressed obliquely.
(2) Incised wound on the left ear 2" X ½" X 1/4".
(3) Incised wound on the chin 2 ½" X ¼" X ¼"
placed transversely.11
(4) Incised wound on the left eye brow 1 ½" X ¼"
x 1/6".
(5) Lacerated wound on the occipital region 1" X ¼" X muscle x bone.
(6) On dissection bruise on the right parietal region 2" x 1", on the occipital region 2" X ½".
(7) Bruise on the left side of the neck 4" X 3".
(8) Subdural hemorrhage on the both hemisphere.
(9) Crack fracture on the occipital region 1"."
P.W.8 another eyewitness deposed inter alia as follows:-
" Pintu Manna hurt the boy on his neck with a katari and as a result he sustained bleeding injuries in his neck. Thereafter, I saw Chand Baran Bhattacharjee running fast and entering into a lane by the side of the sweet meat shop. The name of the lane was Satish Moirar Goli. Pintu Manna was also chasing Chand Baran Bhattacharjee with a Katari."
With regard to the evidence of the P.W.8, Mr. Banerjee submitted that presence of this witness at the P.O is doubtful because during cross-examination he deposed that 12 Monday is a weekly holiday in the private concern where he worked. During his examination-in-chief P.w.8 deposed that at the relevant time i.e. on 29th May, 2000 he was returning from his office and was about to enter into the sweet meat shop of Satish Maira situated near the P.O.. Mr. Banerjee contended that 29th May 2000 was a Monday. Therefore, there was no occasion for the witness to have returned from his office. He contended that this is a pointer to show that this witness was not at all present at the spot.
Criticizing the evidence of the P.w.16 Mr. Banerjee contended that this witness is a signatory to the inquest report. But he did not disclose the fact that the victim Kasinath was killed by the accused Pintu. He on that basis contended that the P.W.16 was also not present at the spot nor did he witness anything. He drew to our attention to the evidence of P.W.7 an Assistant Sub Inspector of Police who prepared the inquest report. During his cross-examination he deposed that " at the time of preparation of inquest report no one reported anything independently to me." Mr. Banerjee contended that this leaves no manner of doubt that P.W.16 was not present at the P.O. Had he been present and witnessed the incident he would have disclosed the entire story to the P.W.7. We are unable to accept this submission for the following reasons:
13(a) The inquest report ext.8 does not indicate that the P.W.7 enquired of the witnesses as to the case history but they were unable to throw any light upon that.
(b) The P.W.16 during his examination-in-chief identified his signature on the inquest report and his signature was marked ext. 8/3. During cross-
examination not one question either with regard to his signature or as to why did he not disclose the case history to the maker of the inquest report was put to him.
Similarly P.W.8 was not asked to explain as to how could he have been returning from his office when the office was supposed to have been closed on the date of the incident. P.W.8 was not even suggested that he had no occasion on the date of the incident to return from his office. As a matter of fact there is no cross-examination with respect to the aforesaid matter.
If the defence wanted to impeach the credibility of these 2 witnesses, it was imperative for them to confront the witnesses with these facts, which have now been argued before us. Reference in this regard may be made to the judgment in the case of Naba Kumar Das Vs. Rudra Narayan a judgment of the Privy Council reported in Volume-28, Calcutta 14 Weekly Notes 589 wherein the following view was taken :
"There is another objection which their Lordships think fatal to the entries in the rent-roll being relied on as evidence which could outweigh the direct testimony of the witnesses who say that the stipulated eight part had not been adequately cleared by April 1906. Mr. Sunder went into the witness box and stated that he had seen the property and, as the result, had advised that, as he had found that the clearing stipulated for had not been performed, the Government should resume the property leased, as was actually done. Nothing was put to him in his cross-examination about the rent-roll or the entries in it. If, as was suggested at the Bar, this was because the documents were tendered by the Government, a Defendant at the trial, as part of its case, only after Sunder had been in the box, an application might have been made to recall him for further cross-examination. There is, however, no suggestion that there was any such application. Sunder was not even cross- examined on the alleged perfunctory character of his inspection. The learned subordinate Judge relied largely on the circumstance that 15 he did not measure. But he was not bound to measure. His evidence was that he could see and saw that the proper quantity of land had not been cleared. If this statement was challenged it should have been challenged by cross-examination directed to the impracticability of forming a judgment by mere inspection, even with the aid of glasses, as to the proportion of area cleared."
For the aforesaid reasons the first submission of Mr. Banerjee that the eyewitnesses are not believable is rejected.
The second submission of Mr. Banerjee as regards absence of the persons who had shifted the victim to the hospital from the witness box has not impressed us because he did not enlighten us as to how could there presence in the witness box have improved the situation. No one has deposed that Saidul and Kiran who had accompanied the victim to the hospital were the eyewitnesses. It is P.w.8 who arranged for shifting of the victim in the presence of the Police. He arranged for a taxi and sent the aforesaid two persons along with the victim. We are as such not impressed by this submission.
The third submission that recovery of the offending weapon was not believable because it was made from an open place accessible to all is equally without any 16 merit. From the evidence of P.W.18 it would appear that the offending weapon was recovered from inside the pond belonging to Balai Ghosh and Anup Ghosh. P.W.8 and P.W.16 were witnesses to the recovery of the offending weapon. P.W.8 deposed in that regard as follows:-
" Police came to me on 23.07.2000 at about 11.00 a.m. This is my signature on the S/L which is marked Ext. 12/1. On 23.07.2000 shambhu Nath Naskar was with me. On that date and at that time, we were standing at Badha Bat Tala. Police came at that time with a Police van and Pintu Manna was inside that Van. Thereafter, the police took Pintu Manna to a pond through Babul Sen Lane. We were also with them at the pond. The Pond belonged to Balai Ghosh & Anup Ghosh. After reaching there, Pintu Manna recovered a Katari from the mud of the pond. I will be able to identify that katari. This is that Katari with a red butt which was recovered by Pintu Manna from the mud of that Pond which is Mat. Ext.V. After recovery of the Katari. I signed on the label pasted on the butt of it. The signature is marked ext.13. I also signed on the labels of mat. Ext.(I) and (iii). These are my signatures marked exbts. 14 and 15 respectively. After the seizure of the Katari. I cannot say now where I went."17
P.W.16 deposed in that regard as follows:-
" On 23.7.2000 at about 11.30 a.m I was standing at Badha Bartala along with Rabin Bhattacharyya and others and we were gossiping. At that time a police van came and stopped there, and the accused Pintu Manna got down from the van along with other police personnel and they came near the tank of Balai ghosh and Anup ghosh and we followed them upto the bank of the tank. They came on the northeast corner of the bank of the tank and thereafter Pintu Manna got down in the tank and recovered the Katari from the tank within 5/7 minutes in presence of us. Police thereafter got our signature on the seizure list there. I and Rabin Bhattacharyya signed on the seizure list. I can identify the said Katari. The katari had wooden butt red and green colour. It is that Katari. Label is pasted on it. It is my signature on the label, Mat Ext.V (identified by the witness). Signature is marked as Ext. 5/2. It is my signature on the seizure list, marked as Ext. 12/1. After seizure of the said Katari we and Police went to the house of Pintu Manna Police went to the house of Pintu for recovery of Chati of Pintu Manna but that was not recovered there."18
Mr. Banerjee is not correct when he said that the offending weapon was found from an open place. The offending weapon was found hidden in the mud of the pond. Where had the weapon been concealed was known only to the accused Pintu. When he took out the weapon from inside the mud his guilty knowledge was firmly established.
Mr. Banerjee is also not correct that an extract of the alleged statement of accused Pintu was tendered and marked ext.24. The statement, made by Pintu was recorded and it is the recorded statement which was tendered. The document on record is an attested copy of that statement. No objection was raised when the attested copy was tendered in the evidence. It is now too late in the day to suggest that the copy was not admissible.
The judgments cited by Mr. Banerjee have no manner of application to the facts and circumstances of the case. The Judgment in the case of Kora Ghasi vs. State of Orissa (Supra) was in an appeal to the Supreme Court against an order of conviction passed by the High Court, Reversing an order of acquittal. Their Lordships in that case clearly found that recovery was made from an open place accessible to all. In the present case the offending weapon was found from inside the mud of the pond which was neither open nor accessible to anyone who did not know the fact that the weapon was lying there. One of the reasons why recovery of an offending weapon 19 from an open place accessible to all is not believable according to us is that its co-existence with criminality is not possible. A guilty mind shall always try to conceal the offending object or any evidence connected with the offence.
In the case of Abdul Sattar vs. Union Territory Chandigarh (Supra) the wearing apparels were recovered. Their Lordships held that " it is difficult to believe that this two had been so concealed that they were not noticed and were available to be collected from the very place such a long time after". It would appear that in the present case the weapon was hidden into the mud of the pond so that it was not noticeable from outside and was not available to be collected unless the place where it had been concealed was known and the mud removed.
In the case of Sattatiya Vs. State of Maharastra (Supra) there was no written document containing the alleged statement made by the accused expressing his desire to facilitate discovery of wearing apparels. But in the case before us the statement made by the accused Pintu was recorded and on that basis the discovery was made. The recorded statement is ext. 24. Therefore, the judgment in the case of Sattatiya has no manner of application to the facts and circumstances of the case.
20In the Case of Phusu Koiri vs. State of Assam (Supra) in paragraph 24 relied upon by Mr. Banerjee the following view was taken.
"We may refer now to the cases cited in relation to the alleged circumstance of "discovery" u/s 27 of the Evidence Act. In State of U.P. V. Jogeswar, AIR 1983 SC 349: (1983 Cri LJ 686) it was held that conduct and concealment are incriminating circumstances and their discovery becomes relevant and admissible under S.27. But, as there was no "statement" on record about the alleged concealment the court held that there was no legal evidence on the record to connect the accused with the gun recovered. Indeed, what their Lordships observed in AIR 1983 SC 446: (1983 Cri LJ 846) Earabhadrappa V. State of Karanatake deserves to be noted carefully. In the language itself of S.27, it was held it was manifested that it must be established that the information (statement) must " relate distinctly" to the facts discovered u/s 27. This Court also examined the scope of a "discovery" u/s 27 in Moirangthem v. State of Manipur, 1984 CriLJ 536. Therein accused's categorical statement of his concealing the incriminating object at a particular place was held to be admissible. We have no doubt that, the mere discovery of any object would not be accepted 21 as an evidence against the accused unless the statement of the accused which led to the discovery was also proved. Indeed, this view was taken by this Court in Bhandagarh 1984 CriLJ 217 wherein the court held that proof of seizure list in respect of the object discovered pursuant to the information gathered from the statement of the accused will not render admissible evidence of seizure. We feel constrained to observe that the statement must, according to the language and also object of S.27." relate distinctly" to the object discovered and in connection therewith it can be proved conclusively if the exact statement or words used are proved. We are, therefore, inclined to take the view that as in the case of a dying declaration or a confession, the court should insist even in the Case of S.27 the same requirement that the prosecution must prove the "statement" ipsissma verba. Because, it belongs to the same genus. We say so because in such cases also it is the statement of a person who cannot be called as a witness and the case would be covered by S.32(3). In such cases a ""discovery" is made in the course of investigation (as envisaged u/s 162 (2) Cr.P.C.) as a result of information gathered by the Police from accused's "statement"
which will be hit by S.162(1) except to the extent 22 saved by the words " so much of such information"
of S.27. that apart the statement may partake the color or character of a confession by the accused as indeed the section itself contemplates. The provision being contemplated by the legislature as an exception to S.25 it is to be strictly construed therefore, to fulfil the limited purpose and object which is sought to be achieved within the constitutional limitation. Fake "discoveries"
are not contemplated: the authorship of the "
discovery" must be attributed to the accused. The Court has a duty to discharge in this regard. The duty can be discharged if the entire statement, and particularly in the language of the accused, is proved. The Court has to satisfy itself of the truth and voluntariness of the "statement" to exclude possibility of violation of Art.20(3) of the Constitution. Indeed, the Constitution Bench in M.P.Sharma AIR 1954 SC 300: (1954 CriLJ 865) took the view that only such situations are excepted from the purview of Art.20(3) which manifest that evidence was being collected without in any manner compelling the accused or asking him to be a party to the process. We would say this much only for the present as in the instant case no " statement" at all has been proved. After he was arrested the accused, as per 23 I.O.'s deposition "led to the spot where the dead body was kept hidden." We have, therefore doubt if any ' statement' was at all recorded."
It would appear from the discussion made herein above that the statement made by the accused Pintu is on the record and was duly proved and marked Ext.24. Therefore the requirements laid down in Section 27 of the evidence Act was duly fulfilled. Far from assisting the appellant, this judgment militates against him. In paragraph 24 of the judgment the Division Bench referred to an earlier judgment of the Supreme Court wherein it was held that conduct and concealment are incriminating circumstances and their discovery becomes relevant and admissible under Section 27 of the Evidence Act. In the Present case the conduct of the accused Pintu in concealing the weapon and subsequently finding it out are both incriminating circumstances staring against him.
The judgment in the case of Niranjan Panja Vs. State of West Bengal (Supra) has no manner of application to the facts and circumstances of the case either. In the case before the Apex Court there was no proof that the accused had committed the murder. The case was based wholly on circumstantial evidence. The circumstances were also very slender to connect the crime with the accused.
24Discovery of the weapon in that case did not find favor with the Supreme Court for the following reasons:
"For effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only the part of the statement which is not incrimination and lead to discovery which becomes admissible. The evidence of this witness does not inspire confidence and it is of no use, more particularly, because the so-called hansua allegedly produced by the accused never saw the light of the day nor had the witness identified the same and the prosecution had also not given any explanation whatsoever about the disappearance of this weapon."
In the present case before us statement of the accused is there which we have already indicated (Ext.24). The weapon was produced and has been marked a material exhibit and the same was identified by the witnesses in whose presence the same was recovered. Therefore this judgment has no manner of application either.
The fourth submission as regards omission on the part of the investigating agency to send the offending 25 weapon or the wearing apparels to the F.S.L is factually true. It cannot be gainsaid that there has been latches on the part of the investigating agency. But that by itself cannot outweigh the evidence of the eyewitnesses followed by recovery of the offending weapon.
The fifth and the last submission of Mr. Banerjee cannot be accepted either. There is evidence of the P.W.1, P.w.8, P.W.9 and P.w.16 to show that the accused kalpana was leading an indisciplined life. P.W.8 deposed that the accused Pintu had amorous relationship with accused Kalpana. P.w.8 was suggested during his cross- examination as follows:-
"I cannot remember now as to whether I stated to the Police that kalpana Bhattacharjee was apprehended while she had illicit relationship with the young men of her locality."
P.W.9 was suggested as follows: -
26" It is not a fact that Kasinath Naskar had any illicit relationship with the wife of Chandu Baman."
There is clearest evidence from the deposition of the P.W.1 and P.W.9 that the accused Kalpana had taken shelter of the accused Pintu. The accused Pintu intended to and in fact committed murder of the victim Kasinath. He had no excuse, though, for doing so except for jealousy or grudge arising out of the fact that the victim had been instrumental in restoration of the accused Kalpana to the custody of her husband or may be that he entertained a belief that Kashinath had also won favor of the woman as suggested by the defence. It is, therefore, not possible to scale down the conviction from one under Section 302 to Section 304 of the Indian Penal Code. We have no option but to dismiss the appeal.
The appeal is as such dismissed.
The appellant is directed to forthwith surrender to serve out the sentence awarded by the learned trial court 27 for the offence punishable under Section 302 of the Indian Penal Code. The learned trial court is directed to take coercive measures if the appellants fail to surrender within a month from date.
Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action.
Urgent Xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(GIRISH CHANDRA GUPTA J.)
I agree. (TARUN KUMAR GUPTA J.)