Calcutta High Court (Appellete Side)
Pari Rishi vs The State Of West Bengal on 13 June, 2017
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
1 CRA 386 of 2004 Form No. J(1) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLTE JURISDICTION APPELLATE SIDE Present :
The Hon'ble Justice Rakesh Tiwari And The Hon'ble Justice Shivakant Prasad C.R.A. No. 386 of 2004 Pari Rishi Versus The State of West Bengal For the Appellant : Mr. Partha Sarathi Bhattacharya For the State : Md. Sabir Ahmed Heard on : 13.06.2017.
Judgement on : 13.06.2017.
Rakesh Tiwari, J.: This is an appeal challenging the judgment and order dated 12th November, 2003 and 17 November, 2003 passed by the Additional Sessions Judge, 1st Court, Jalpaiguri in Sessions Trial No. 41 of 2003 arising out of Sessions 2 CRA 386 of 2004 Case No. 34 of 2003 convicting the appellant under Section 302 of the Indian Penal Code.
This is a case of circumstantial evidence and therefore in order to ensure that the chain of circumstances are not broken and such circumstantial evidence points out to the guilt of the accused, the relevant admitted facts may be narrated in a nutshell leading to the murder of Gopal Halkar aged about 21 years.
An FIR was lodged by Buchai Halkar, son of late Dukhai Halkar of Mondolghat, Rail Quarter, Police Station- Kotwali, on 31st July, 2002 at 00.50 hours to the effect that on 30th July, 2002 at about 5 p.m. his son went to Jalpaiguri by train and his brother's son Rabi Halder of Mondolghat boarded in the same compartment of the said train on the same day for Jalpaiguri. Rabi Halkhor came to the house of the defacto complainant on 30.7.2002 at about 9 p.m. and informed him that when Gopal reached Kadbari railway station by the aforesaid train he was brought down from the train by Pari Rishi, the appellant and three others and murdered. The FIR was scribed by one Dipal Sarkar son of late Guna Bandhu Sarkar of Adarpara, village Kadobari Hat as per dictation of Buchia Halkar. On lodging of the FIR, Kotwali Police Station Case No. 257 of 2002 dated 31.7.2002 was started against the accused persons under Sections 302/34 of the Indian Penal Code by the Inspector-in- Charge of Kotwali Police Station, Jalpaiguri. Investigation report under Section 173 3 CRA 386 of 2004 of the Code of Criminal Procedure read with regulation 299 was submitted by the Investigating Officer showing that the investigation was commenced on 31st July, 2002 at 02.05 hours and was closed at 04.10 hours on the same day. From the said investigation report it appears that the victim Gopal aged about 21 years of Mondolghat, Rail Quarter, Police Station- Kotwali was found dead at a ditch full of water within ten yards west of the rail line and it was seen floating in a prove condition. In the dead body of Gopal it was seen that there was a deep injury measuring about 4"x3"x1" which is 4" below the left ear and neck of the deceased which was caused by a sharp weapon. No other injuries could be seen at the time of the inquest.
On investigation it was found that the deceased Gopal Halkur had boarded Siliguri-Haldibari train on 30.7.2002 at 7 p.m. from Jalpaiguri Station and when the train stopped at Kadobari gate at about 7/7.30 p.m., Pari Rishi and others brought down Gopal Halkur from the train and murdered him and the dead body was thereafter thrown in the water of the ditch. The constable C/1029 (Monbahadur) brought the dead body to the sadar hospital for post mortem for ascertaining the cause of death. The post mortem report, exhibit- 5, was prepared by Dr. Atindra N. Majumder PW 9, who had held post mortem. He described that one incised wound situated at the right side of the neck of size 4" x 3" x1" the trachea of the deceased 4 CRA 386 of 2004 was cut. The post mortem report confirmed that the victim died instantaneously due to injury inflicted upon the body of the victim causing huge loss of blood. In the opinion of Dr. Atindra Nath Mukherjee, P.W. 9 the death occurred due to shock, asphyxia and hemorrhage caused by the above mentioned injuries which is homicidal in nature.
The accused/appellant Pari Rishi was charged for the offence punishable under Section 302 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried.
The prosecution examined as many as eleven witnesses to bring home the charge.
PW 1, Smt. Simala Rishi is the sister of the accused, PW 2, Smt. Kushum Rishi, is the wife of the accused and PW 3, Smt. Dupu Rishi, is the mother of the accused who were declared hostile. PW 4, Smt. Rakha Routh, PW 5, Rabi Halkhor, PW 6, Dhiren Mondana and PW 7, Sri Buchia Halkhor identified the accused stating that on 30th July, 2002 at about 8.30 p.m. the accused/appellant murdered the victim.
PW 4 Smt. Rakha Routh, wife of the deceased stated that her husband had illicit relation with Kusum, the wife of the accused. In her cross-examination she stated that over this relationship of her husband she was driven out of the house. 5
CRA 386 of 2004 P.W. 5 Rabi Halkhor stated that he and Gopal on 13th Shraban came to Jalpaiguri to visit their 'Didi'(elder sister) Smt. Anita Routh at No. 3, Ghoonti Haricharran Busty. Thereafter they boarded the train at about 7 p.m. which came late and started for Mandalghat which is their resident place. He also stated that when the train had stopped at Kadobari, the accused/appellant Pari Rishi brought down Gopal, the victim by pulling his shirt collar and detrained him and further stated that he (P.W. 5 herein) was afraid at the suddenness of the incident. Thereafter the train started moving and he was alighted at Mandalghat station and narrated the incident to his Jethu (uncle), P.W. 7. Subsequently they along with Dhira Mondal and others went to the Rail gate of Kadobari Rail Station. On search they recovered the dead body of Gopla @ Gopal near a bushy area by the side of the railway-track. They found injury on the throat of the victim and the body of the victim was lying in a nearby land full of flowing water. He stood for cross-examination and nothing of value to the defence could be extracted from him. It may also be stated here that P.W. 5 had also given his statement before the Magistrate under Section 164(5) of the Code of Criminal Procedure before Smt. Jyanti Das, the Judicial Magistrate, Jalpaiguri on 6th August, 2002 which has been proved as Exhibit I and it finds corroboration by his evidence.6
CRA 386 of 2004 Since the entire dispute centres round the evidence of eye witness P.W. 5 , Rabi Halkhor who had boarded the train on 30th July, 2002 from Jalpaiguri with Gopal (since deceased), his evidence is required to be dealt with in detail for appreciation of evidence. P.W. 5 has stated that on that evening the train scheduled to reach Jalpaiguri at 7 p.m. came to Jalpaiguri station a bit late and when it had reached Kadobari station, Gopal was suddenly pulled down from the train by the appellant by pressing his shirt collar and at the suddenness of the incident the witness (P.W.5) got scared. It is this incident of pulling down forcibly and compelling Gopal to be detrained, which is the crux of the matter. The deceased was last seen by his brother (P.W. 5) who was his companion in the train.
As regards P.W. 6 is concerned in so far as his statement that Gopal being pulled down as narrated by P.W. 5 is hearsay evidence but he was a member of search party along with P.W. 5 and P.W. 7. Therefore, even if his evidence is not believed because he was speaking in Court at the time when P.W. 5 was in the witness box then it can be safely said that the evidence of P.W. 5 and P. W. 7 is corroborated by the formation of the search party and finding the body of the victim in the water by the said search party. It may however, be noted that P.W. 6 in his cross-examination has stated as follows: 7
CRA 386 of 2004 "I was examined by the Police. I did not state to the I.O. that I run a tea stall at Mandalghat Rail station or that I found Pari along with three others in the Railway station or that I was in the Mondalghat Chowpatti on 30th August, 2002. It is not a fact that in the month of Shravan last year the father of Gopal did not meet me in my tea stall or that he did not narrate me that accd. Pari Rishi forcibly dragged Gopal from the train when he was returning home with Rabi. Yes. I stated before the police that I along with Bhola, Nakul, Rabi and Buchia and others came to Kedobari Rail-station as per request of Buchia. It is not a fact that I did not visit Kedobari Railway-station as per request of Buchia, or that we did not find Gopal lying in the flowing water in cut-throat condition, or that I am deposing falsely suppressing the truth."
P.W. 7 stated that after receiving information from his nephew about Gopal he along with some other persons went for searching his son to Kadobari Rail station and after excessive search they found the dead body of Gopal lying face down condition on a flowing water. He further stated that his throat was cut.
As regards P.W. 9, he is the doctor who held post mortem on the corpus of Gopal. He had proved the post mortem report as Exhibit 5 and recorded his opinion that he found trachea of Gopal was cut by an injury at the right side of the neck of size 4"x3"x1" and his death was almost instantaneous.
P.W. 10 is the scribe of FIR as per dictation of Buchia (P.W. 7) which was read over and explained to the maker and he has proved the FIR as Exhibit 3 bearing his signature (Exhibit 3/2).8
CRA 386 of 2004 The Investigating Officer of the case Sri. P. S. Majumder was produced as Prosecution Witness no. 11 who narrated the manner in which he conducted the inquest on the dead-body after taking charge of investigation. The inquest report contains sketch map of place of occurrence with explanatory index. Thereafter charge sheet was submitted by him. When confronted with cross -examination of P.W. 6 as to whether he (P.W. 6) has made such statement before him that as per request of Buchia he along with others went to Kadobari Rail Station in search of Gopal, the Investigating Officer has pointed out that no statement was made but he stated that P.W. 6 had stated to him that they all had made search of Gopal and the dead body was lying in the ditch full of water and that P.W. 6 had stated that he came to learn from Buchia that three persons including Pari dragged Gopal from the train.
We hardly find any contradiction in the statement made by P.W. 6 to the Investigating Officer with the statement made by him at the earlier point of time.
On appreciation of evidence it appears that Gopal was forcibly detrained at Kadobari railway station at about 8/8.30 p.m and was dragged from the train as was evidenced by P.W. 5. His dead body was recovered at about 9/9.30 p.m. by P.W.s. 5, 6 and 7. It is noted that P.W. 5 was the eye witness to the occurrence of the incident and had lastly seen that Gopal was forcibly pulled down from the train by the appellant. The Court also noted accused Pari Rishi had harboured grudge against 9 CRA 386 of 2004 Gopal for enticing his wife Kusum at least thrice which is a strong indicator of motive which was in the mind of the accused/appellant. Taking the circumstances in detail coupled with evidence of P.W. s 5, 6 and 7 and the attending circumstance of the post mortem report as well as the evidence of doctor and his opinion, there is no ground for doubt that it is not a case of simply last seen together but it is a case where the accused/appellant boarded at the same compartment after the deceased victim and his brother P.W. 5 had boarded the train and dragged down Gopal, the deceased victim by use of force near the railway gate and the body of the victim was found within 10 yards of the railway line causing instantaneous death of Gopal. Since it was dark when this incident happened and the train had started moving restraining the P.W. 5 from getting down at the place of occurrence, it appears that Gopal could be taken from the railway station, murdered on the nearby railway line and thrown in a ditch full of water and left there by the appellant. There are no other circumstances brought by means of evidence which may indicate any other theory of hypothesis that Gopal was not abducted or taken away by the appellant and the motive being clear, the learned trial Court has rightly come to the irresistible conclusion that it was the accused appellant and the appellant only who committed the murder and the same is proved by the circumstantial evidence adduced in the case. 10
CRA 386 of 2004 We, therefore, do not find any ground to interfere with the impugned judgment and order dated 12th November, 2003 and 17th November, 2003.
Accordingly, the judgment and order of sentence are affirmed. The appeal is thus dismissed.
Let the lower court records together with a copy of the judgment be sent down to the Court below at an early date.
Certified copy of the order, if applied for, be given to the parties on priority basis.
(Rakesh Tiwari, J.) (Shivakant Prasad, J.) jb/mns.
11CRA 386 of 2004