Calcutta High Court (Appellete Side)
Nibaran Murmu @ Sahebram vs The State Of West Bengal on 30 June, 2017
Author: Aniruddha Bose
Bench: Aniruddha Bose, Asha Arora
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Justice Aniruddha Bose
And
The Hon'ble Justice Asha Arora
C.R.A. 29 of 2008
Nibaran Murmu @ Sahebram
Vs.
The State of West Bengal
Advocate for the appellant : Mr. Mainak Bakshi
Advocates for the State : Mr. Subir Banerjee (Additional Public Prosecutor)
Mrs. Kakali Chatterjee
Heard on : 11.11.2016, 21.12.2016, 19.05.2017 and
16.06.2017.
Judgement on : 30th June, 2017
Aniruddha Bose, J. :
1. The appell ant Nibar an @ Sahe bram Murm u has been convi cted of the offenc es under Sectio ns 302 and 326 of the India n Penal Code, 1860 (1860 Code) for comm itting murd er of one Sripat i Besra and also for volun tarily causi ng grievo us hurt to two other indivi duals Girija l Besra and Lebu bala Besra . The incide nt occur red in the early hours of 19th June 2006.
Girija l, who depos ed as P.W. 7 in the trial was the son of the victim where as, Lebu bala, being P.W. 8 was his wife.
Place of occur ence of such offenc e was the reside ntial house of the victim s in Kush bani villag e in Purul ia Distri ct.
The Additi onal Sessi ons Judge , 2nd Court , Purul ia, before whom trial was held, award ed rigoro us impri sonm ent for life to the appell ant for the offenc e under Sectio n 302 of the 1860 Code and rigoro us impri sonm ent for 10 years for the offenc e under Sectio n 326 of the same Code.
He found the appell ant/a ccuse d guilty on both these count s, with which he was charg ed.
For the forme r offenc e, he was sente nced to pay a fine of Rs.10 ,000/
- and in defau lt to suffer simpl e impri sonm ent for one more year.
For the latter offenc e, fine of Rs.5, 000/-
was impos ed, and in defau lt there of, furthe r simpl e impri sonm ent for 6 more mont hs presc ribed.
2. The prose cutio n case is that on 19th June, 2006 at about 10:25 hrs a writte n compl aint was receiv ed in the Band wan Police Statio n, situat ed withi n the Distri ct of Purul ia from one Mahe shwar Besra of Kush bani villag e about death of the victim as well as injuri es havin g been cause d to the P.W.7 and P.W.8 . The writte n compl aint did not contai n the name of any assail ant, but it was stated that the victim s were assau lted by three to four unkn own miscr eants at about 12:30 hrs at night and that they had deca mped with the house hold belon gings of the victim s. On that basis, forma l F.I.R was regist ered under No.18 /06, referri ng to Sectio ns 394/ 302/ 326/ 307 of the 1860 Code.
The invest igatio n was assig ned to one Asho ke Singh a Maha patra, (P.W.
13) an S.I. of police who at that point of time was attac hed to the Burd wan police statio n.
There were two other Invest igatin g Office rs of the case, Arind am Mukh erjee (P.W.
14) and Radh akant a Pati (P.W.
15).
Major part of the invest igatio n was under taken , howe ver, by the P.W. 13 only.
P.W. 14 took over invest igatio n on transf er of P.W. 13 and subm itted the charg e-
sheet.
P.W. 15 had subm itted a suppl emen tary charg e-
sheet after receiv ing a report from the Foren sic Scien ce Labor atory.
The victim s were sent to the prima ry healt h cente r at Band wan for treat ment and evide nce reveal s that they had reach ed the said cente r, which is referr ed to as the hospi tal by some of the witne sses, at 5.45 A.M. on the same day.
Inque st was made by the Invest igatin g Office r Asho k Singh a Maha patra at the place of occur rence as also the hospi tal where the dead body of victim was lying.
The body of the victim was event ually sent to Purul ia Sadar Hospi tal where autop sy was cond ucted by Dr.A mal Nath, who has depos ed as P.W.9 . The two injure d perso ns, P.W. 7 and P.W. 8 were also referr ed to the same hospi tal as the atten ding medic al practi tioner found their condi tion serio us.
The said medic al practi tioner , Dr. Dhur mal Kisku has depos ed in the trial as P.W.
10. On the date of occur rence itself, as per the prose cutio n story, an iron axe with about 3ft.
helve was seized from a bush near the reside nce of the accus ed-
appell ant by the P.W.
13. This axe has been made 'mate rial exhibi t-1' in cours e of trial and the seizur e list there of has been mark ed 'exhib it-3'.
In the same list an attac hé box has been show n to have been seized . It also trans pires from the depos ition of P.W.1 3 that on the same date, but later in point of time he had seized from the reside nce of the appell ant-
accus ed a green colou red half sleeve vest (ganji) and a pair of indigo trous ers, both items carryi ng blood stains . The time of this seizur e is 14:45 hrs, as reflect ed in the seizur e list, mark ed 'exhib it-2'.
The seizur e of the axe was effect ed, as per 'exhib it-3' at 15:35 hrs. The weari ng appar els as also the axe were sent to the FSL (Fore nsic Scien ce Labor atory) for chemi cal analy sis.
It has been subm itted on behalf of the prose cutio n that sampl e blood of the decea sed was also collec ted after post-
morte m.
The FSL report (exhib it 13) indica tes that serolo gist of the Gover nmen t of India receiv ed a 'Ganji (cutti ng)', 'Blood soake d in filter paper' , 'Blade of Axe (scrap ings)' and 'wood en handl e of axe (scrap ings)'. The serolo gist found the first two items staine d in huma n blood but blood stains on the next two items had disint egrate d and their origin could not be deter mine d. It was obser ved in the report that blood group on the stains could not be deter mine d.
3. The appell ant was arrest ed by the P.W.1 3 on 22nd June, 2006.
It appea rs from depos ition of P.W.1 3 that the appell ant had made confe ssion al state ment to him to the effect that he would help him in recov ering certai n articl es conne cted with comm ission of murd er.
The recov ery in that regar d was made of an exerci se book on which the name of P.W.7 (Girij al Besra ) was writte n.
The confe ssion al state ment has been made 'exhib it-12'. Apart from this recov ery, 'exhib it 12' also attrib utes to the appell ant confe ssion al state ment to the effect that he had comm itted the offenc e.
This part of the state ment has to be ignor ed as being inad missi ble as it was made in the police statio n.
The said cours e has been adopt ed by the Trial Court .
There has been subse quent seizur e of a keros ene lamp on 18th July, 2006 from the reside nce of the victim s on 18th July, 2006.
4. The convi ction is found ed prima rily on the basis of eyewi tness accou nt of P.W.7 and P.W.8 as also the evide nce of the autop sy surge on (P.W.
9) and the atten ding docto r (P.W.
10).
There are altoge ther nine witne sses of fact who have depos ed for the prose cutio n.
Apart from P.W.1 , Mahe shwar Besra , P.W.7 and P.W.8 , who are near relati ves of the victim s, the rest of the witne sses of fact are all co-
villag ers.
These are Guru pada Murm u (P.W.
2), Joyde b Hans da (P.W.
3) being the scribe of the writte n compl aint, Ramc handr a Tudu (P.W.
4), Lakhi nder Mand i (P.W.
5) and Maha deb Hans da (P.W.
6).
Two other witne sses of fact, Shah adeb Tudu (P.W.
11) and Harid as Murm u (P.W.
12) were tende red as being gaine d over.
Both of them stated in their depos itions that they had no detail ed knowl edge about the crime but certifi ed in cours e of their exami natio n that the appell ant was an hones t perso n.
The motiv e of the crime in the way the prose cutio n projec ted has trans pired from the depos itions of P.W. 7 as also P.W. 3, P.W. 4 and P.W. 5. It is the prose cutio n story that there was a subsi sting dispu te betwe en the family of P.W.7 with that of the appell ant- accus ed. The P.W.7 stated in his exami natio n-in- chief that he had sent a sum of Rs.2, 000/- to his father from Gujar at, where the appell ant also used to work but the appell ant did not pay the said sum to his father , who is the decea sed victim . Beca use of this reaso n dispu te had cropp ed up betwe en the appell ant and the decea sed. The existe nce of the dispu te has been confir med by P.W.3 , P.W.4 and P.W.5 in their depos itions . These three witne sses, howe ver, did not give the sourc e of their knowl edge about the dispu te.
5. Accor ding to the prose cutio n, the cause of death was injuri es suffer ed from blows from the axe.
The autop sy surge on in his evide nce stated that he had found the follow ing injuri es on the dead body while cond uctin g the post-
morte m exami natio n:-
"1. Clotted, antimortem blood over head, face and leftpalm;
2. Two small cut injury transverse ½ inch X ¼ inch X bone deep, just above right eye brow;
3. Cut injury longitudinal ½ inch X ¼ inch X bone deep justbeing right ear cutting pinna of right ear
4. Stool discharge present.
After dissection:
1. Extensive subcutaneous harmmorhage whole skull with oblique and transverse fracture, right to left front of skull.
2. Extensive intra cerebral haemorrhage whole brain.
Note:- Injury might be caused by sharp and poined end of heavy substance."
6. The nature of injuries suffered by P.W.7 and P.W.8 on the night of 19th June 2006 appears from the depositions of P.W. 10, the attending medical practitioner. At the material point of time the P.W. 10 was attached to the primary health centre at Burdwan. It was at that centre the deceased and the P.W.7 and P.W.8 were taken to first after suffering injuries. So far as injuries of Girijal Besra (P.W. 7) is concerned, the P.W.10 described them as:-
"1.Multiple size and shapped lacerated sharp cut injury over scalp - Active bleeding was present.
2.Lacerated cut injury over right eye brow - Active bleeding was present.
3.Left cheek - Multiple stab injury - Active bleeding was present. 4. Nasal bleeding was present.
5.Compound fracture on left ring finger - Active bleeding was present.
7. Injuries of Lebubala Besra have been described the P.W. 10 as:-
"1.Multiple lacerated cut injury over her left cheek - Active bleeding was present.
2.Superficial sharp cut injuries on her left ear - Active bleeding was present.
3.Nasal bleeding was present. Nature of Injury No.1 and 3 were grievous."
8. Their injury reports have been made 'exhibit-7' and 'exhibit-8' respectively and the P.W.10 also deposed that such type of injuries could result by means of blows with the help of a small iron made axe. The autopsy surgeon Dr.Amal Nath (P.W.9) has also stated in his examination-in-chief that the cause of death was due to shock and haemorrhage due to head injury ante mortem and homicidal in nature. The autopsy surgeon was shown the axe in his examination on recall. In the post-mortem report, however, the P.W. 9 had named "shabal" - an equipment similar to spade as the possible assault weapon.
9. The judgement of the trial court has been assailed by Mr. Bakshi, learned Counsel for the appellant on different grounds. He has highlighted delay of three days in sending the F.I.R to the Magistrate. We find that endorsement on the F.I.R, (which is 'exhibit 9') was made on 23rd June, 2006 whereas it was lodged on 19th June. The written complaint and the formal F.I.R did not name any person as accused. On the other hand, the de facto complainant (P.W. 1) had stated in his written complaint that 3 to 4 unknown persons had trespassed into the residence of his uncle, being the victim and caused injuries to his aforesaid relatives and thereafter had decamped with various household goods. The motive of murder outlined at the trial by the prosecution did not reflect in P.W. 1's written complaint. Mr. Bakshi has further pointed out that the other two injured persons, P.W. 7 and P.W. 8 spoke of the appellant as being the perpetrator of the offence for the first time from the witness box. He has taken us through the depositions of P.W. 7 and P.W. 8 to bring out certain inconsistencies in their evidence. Both of them had, in their depositions stated that it was the appellant who had caused the injuries and they had identified the appellant. It also transpires from their evidence that it was a pitch dark night, but they could identify the appellant from the light emanating from a kerosene fuelled lighting equipment. P.W. 7 stated that it was the light of a lantern which was burning in their house which helped him to identify the accused/appellant whereas the P.W. 8 has referred to the source of light to a kerosene "dibba", which means a rudimentary lamp. A lamp was seized, to which seizure we have referred to earlier. This difference in describing the source of light, however, in our opinion is only a minor discrepancy and on that basis the entire prosecution case cannot be overturned. Moreover, the appellant being earlier known to them, identification would have been a comparatively easier exercise even in darkness.
10. On behalf of the appellant, it is also highlighted that there is no material to explain in what manner suspicion fell on the appellant. This has not come out in evidence. There was three days' gap from the date of occurence of the incident and the date on which the appellant was taken into custody. From the evidence of P.W. 13, it transpires that during the course of investigation he had visited the residential house of the accused but could not find him there till he was actually arrested on 22nd June 2006. The appellant has also tried to discredit the prosecution version of motive of the crime. We have been taken through cross-examination of P.W.13 in which he stated that he had examined P.W.1, Maheshwar Besra on the day of occurrence itself but he did not disclose any enmity between the appellant and the victim. Mr. Bakshi had argued that introduction of the motive is an afterthought to falsely implicate the appellant/accused.
11. The defence has not produced any witness from his side and taken a stand of total denial in his examination under Section 313 of the Code of Criminal Procedure, 1973.
12. On the point of failing to name the accused at the time of lodging the complaint, Mr. Banerjee, learned Additional Public Prosecutor has pointed out that the de facto compliant (P.W. 1) was not an eyewitness. So far as P.W. 7 and P.W. 8 are concerned, evidence of the attending doctor reveals that their condition was serious when brought to the primary health centre. Girijal Besra was not able to speak at all as he was severely injured. The P.W. 10 found Lebubala Besra in semi-conscious state. Girijal and Lebubala have given eyewitness account of the incident. Their versions are uniform. Both of them stated that on the night of the incident while P.W. 8 was sleeping with her husband in one room and P.W. 7 was in another room, the appellant trespassed into their home and dealt a severe blow on the head of deceased. She had woken up on the cry for help from her husband, and she was also assaulted on the left side of her head and face with an axe. Thereafter the appellant proceeded towards her son's room. P.W. 7's version is that he woke up from his sleep hearing cries from his parents and on coming out of his room, he was also assaulted and became unconscious. Unless we have strong reasons to disbelieve these two witnesses, which we do not find, failure on the part of P.W. 1 to name the appellant in the written complaint cannot be fatal to the prosecution case. In his cross-examination the P.W. 1 has disclosed that his residence was a kilometre away from the place of occurrence. His failure to refer to the motive of the crime also cannot be said to be fatal, as the eyewitness account of the incident of assault is strong in quality. There is no major contradiction in the eyewitness accounts of the assault as also of the assailant.
13. The lamp though seized, was not produced at the time of trial. This factor also we do not think can altogether discredit the prosecution version of the incident. Both P.W.7 and P.W.8 have deposed about the source of light from a kerosene lamp to be the identifying factor of the appellant- accused. This object is not unusual for a village householder to have in his house. Though both the aforesaid prosecution witnesses, Girijal and Lebubala were close relatives of the victim, for that reason alone we are not inclined to discount the quality of their evidence. They have stuck to their statements in their cross-examination and have given uniform version of the incident without any contradiction or discrepancy except in description of the source of light. We have already held that such discrepancy to be minor in nature. The other point on which Mr. Bakshi had argued is in relation to the opinion of the autopsy surgeon as reflected in the post-mortem report ('exhibit-6'). The autopsy surgeon has opined that injury could be caused by sharp and pointed end of a "shabal". He has also stated in his examination-in-chief that the injuries could be caused by a small axe. In the post-mortem report, he has referred to "shabal" as a possible weapon of assault, and his description of the weapon of assault is "sharp pointed end of a heavy substance". Having opined that such injuries could be caused by a small axe, we do not think that defence can gain in any manner from this part of deposition of the autopsy surgeon. The defects in investigation pointed out on behalf of the appellant in not naming the appellant in the F.I.R, delay in sending the F.I.R to the Court, non-disclosure of source of suspicion before arrest of the appellant by the investigating officer are all minor flaws. We do not find any reason to interfere with the judgement under appeal.
14. The appeal is accordingly dismissed.
15. Let this copy of the judgement along with the lower court records be sent down to the learned Court below forthwith by the department.
16. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree (Asha Arora, J.) (Aniruddha Bose, J.)