Calcutta High Court (Appellete Side)
Puran Kora vs State Of West Bengal on 12 September, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Jay Sengupta
C.R.A. 354 of 2016
Puran Kora
vs.
State of West Bengal
For the appellant: Mr. Debojyoti Deb,
Mr. Sajal Kumar Ghosh,
Mr. Deep Mishra
For the State : Mr. Arun Kumar Maiti, learned A.P.P.,
Ms. Sujata Das
Heard on : 12.09.2019
Judgment on : 12.09.2019
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 27.04.2016 and 28.04.2016 passed by the learned Additional Sessions Judge, 2nd Court, Asansol, Burdwan in Sessions Trial No. 10 of 2013 arising out of Sessions Case No. 24 of 2013 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer 2 rigorous imprisonment for life and pay a fine of Rs.10,000/-, in default to suffer six months more.
The prosecution case, as alleged against the appellant is to the effect that in the morning on 30.10.2012 the appellant had demanded money from his father and his wife Saraswati Kora (P.W. 1) for consuming alcohol. They denied to give him money. Thereafter his father left for a relative's house in Birbhum. At around 12 noon, the appellant returned home in a drunken condition. He took away his two year old child Aranya who was sleeping in the room and cut his head with a bonti (cutting instrument) near a hay stack. Subsequently he returned and when his wife confronted him he told her that he had cut the head of his son with the help of bonti. She rushed to the spot and found her son lying in bleeding condition with his head separated from the body. A case was registered by P.W. 1 against the appellant at Jamuria Police Station being Jaumria P.S. Case No. 373 of 2012 dated 30.10.2012 under Section 302 of the Indian Penal Code for murdering his son.
In conclusion of investigation, charge-sheet was filed and case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, 2nd Court, Asansol, Bardhaman, for trial and disposal. Charge was framed against the appellant under Section 302 of the Indian Penal Code. He pleaded not guilty and claimed to be tried. In the course of trial prosecution examined 13 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, learned trial judge by judgement and order dated 27.04.2016 and 28.04.2016 convicted and sentenced the appellant, as aforesaid. Hence the present appeal. 3
Learned Counsel appearing for the appellant submits that evidence of the two purported eye-witnesses i.e. P.Ws. 1 and 11 do not inspire confidence. P.W. 1 has given a diametrically different version in Court than what she stated in the F.I.R. Presence of P.W. 11 at the place of occurrence is not reflected in the F.I.R. He was examined 18 days after the incident and had told the police that he had returned home at 12 noon while he claimed in front of the Court that the incident occurred at 11A.M. Possibility of one Suresh Orang, who is alleged to be the paramour of P.W. 1, murdering the child has not been investigated. Hence, the appellant is entitled to the benefit of doubt and ought to be acquitted of the charge levelled against him.
On the other hand, Mr. Maity, learned Additional Public Prosecutor with Ms. Das, learned Counsel, argues that the evidence of P.Ws 1 and 11 are clear, convincing and reliable in nature. P.W. 1 deposed that her husband returned at 12 noon and took away the sleeping child and murdered him. Subsequently he returned and narrated the incident to her. P.W. 11 witnessed the incident and also narrated such fact to P.W. 1. Postmortem doctor, P.W. 3, found injuries which support the ocular version of the witnesses. Hence, the prosecution case is proved beyond doubt.
P.W. 1, Saraswati Kora, is the mother of the deceased child and defacto complainant in the instant case. She deposed on the date of the incident she and her younger son, Aranya were at her matrimonial home. Her husband demanded money from her and her father-in-law for consuming liquor. They did not pay money to him. Her husband left the spot. Thereafter her father-in- law also left the residence and went to Birbhum to the house of a relation. At 4 around 12 noon her husband returned in a drunken condition. Her two year old son Aranya was sleeping in the room. Her husband forcibly took away Aranya from the room to a hay stack at the back of the house. Subsequently, when her husband returned she enquired about her son. Her husband stated that he had murdered him in the hay stack with a bonti. She rushed to the spot and found the dead body of her son. His head had been separated from his body. She proved her signature on the written complaint marked as exhibit - 1/1 which was scribed by P.W. 2, Chandan Ruidas. Police seized one bonti with blood stains and blood stained wearing apparels of her husband from the house under a seizure list.
Her evidence is criticized on the premise that in cross-examination she admitted that she had not seen the incident of murder. She had also admitted that she had not seen the appellant take away the child from the bed. It was also contended that she stated to the investigating officer, (P.W. 13) that she was taking food in her uncle-in-law's house at that point of time.
I have analyzed the evidence of the aforesaid witness in the light of the aforesaid submissions made on behalf of the defence. Reading her evidence as a whole, there is no dispute that P.W. 1 along with her young son were in the room on the fateful afternoon when her husband returned home in a drunken condition. Thereafter her husband again left the room with the child. When he returned alone, P.W. 1 enquired of the child whereupon he stated that he had murdered the child in the hay stack. These facts have been consistently stated by P.W. 1 not only in the Court but in her F.I.R as well. No suggestion was given 5 to the witness (P.W. 1) during cross-examination that she was having lunch at her uncle-in-law's house at that point of time.
Evidence of P.W. 1 is corroborated by P.W. 11, a relation of the appellant himself. P.W. 11 deposed that the appellant is his nephew. On the date of occurrence at around 11 a.m. he saw the appellant cut the neck of his son with a bonti near the hay stack. Thereafter the appellant left the place. He told the incident to P.W. 1. Police interrogated him and he told the incident to the police. Learned lawyer appearing for the appellant has argued that the said witness ought not to be believed as he was examined by police 18 days after the incident and he was not in the house in the morning and had come home at 12 noon. Hence P.W. 11 could not have witnessed the incident which he claimed occurred at 11 a.m. I am unable to discard the evidence of P.W. 11 on such score. P.W. 11 is a relation of the appellant and has no reason to falsely implicate him in the murder of his son. No inimical relation between the said witness and the appellant has been brought out by the defence. Hence, I am of the opinion that P.W. 11 is a probable and truthful witness to the incident. With regard to the contention that there is inconsistency in his evidence as he claimed that he witnessed the incident at 11 a.m. though he had stated to the police that he returned home at 12 noon, I am of the view that such minor variation as to the time of occurrence cannot blot the otherwise credible version of the witness. P.W. 11 is a rustic villager and is not expected that he would recollect the exact time of occurrence after having witnessed the gruesome act of murder of a two year old child by his own father. Under such circumstances, it is also 6 impossible to expect that the said witnesses would note the exact time when he had seen the incident. Reading his evidence as a whole it is clear that P.W. 11 had gone out of his house in the morning and when he returned in the afternoon he happened to witness the unfortunate incident. Having seen the gruesome murder, he rushed P.W. 1, mother of the child and narrated the incident to her. P.W. 1 has corroborated such fact in her cross-examination. In view of the aforesaid facts, I am of the opinion that version of P.W. 11 is wholly reliable. Failure to examine the said witness immediately by the investigating officer may be an act of investigational remissness. However, since P.W. 11 is a relation of the appellant and was residing in the same plot, his presence at the time of occurrence is most probable and there is no reason for the witness to falsely implicate his own relation. Hence his version ought not to be rejected due to indolence of the investigating officer.
Evidence of P.Ws 1 and 11 with regard to the genesis of the evidence is corroborated by the medical evidence of P.W. 3, postmortem doctor. P.W. 3 found the following injuries on the body of the victim:
1) Incised wound back of neck 2cm below hairline 8cm x 2cm x 1cm.
2) 4 confluent incised wounds which have severed all structures e.g. vertebral column, vessel, spinal cord, muscles, trachea, larynx, oesophagus etc. and severed the head from body. On apposition and pulling together skin slaps (beveling thereon) and cut hairs etc. the head has been found to be of the body.
Medical evidence corroborates the manner of assault on the deceased as per the version of the eye-witnesses.
P.W. 13, investigating officer, collected the blood stained earth from the place of occurrence. He also seized the weapon of offence and blood stained 7 wearing apparels of the appellant from his residence under a seizure list. It has been argued that no importance ought to be given to the said seizure as forensic examination of the weapon of offence and wearing apparels were not done by the investigating agency. It is also submitted that the independent witnesses to the said seizure viz. P.Ws. 4, 5 and 6 have not supported the prosecution case. I find that the said witnesses i.e. P.Ws. 4, 5 and 6 have been declared hostile. They have, however, admitted their signatures on the seizure list and were extensively cross-examined with regard to their previous statements before the police. P.W. 1, mother of the deceased who was present at the time of seizure of the weapon of offence and the wearing apparels from the room has corroborated P.W. 13, the investigating officer in that regard. Hence, I am of the view that the seizure of the weapon of offence i.e. bonti and the wearing apparels of the appellant has been proved in the facts of the case. Failure to hold forensic examination with regard to the blood stains on the bonti and the wearing apparels of the appellant in the face of convincing evidence of P.Ws 1 and 11 on record, cannot in my considered opinion affect the truthfulness of the prosecution case.
In the light of the aforesaid discussion, I uphold the conviction and sentence recorded against the appellant.
The appeal is accordingly dismissed.
The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
8
Although the offence is a gruesome one but the appellant does not appear to have criminal antecedents. I also note that the appellant had committed the offence on the spur of the moment in a drunken condition. Accordingly, I opine in the event the appellant makes a prayer for remission of his sentence in terms of Section 432 read with Section 433A of the Code of Criminal Procedure, upon completion of 14 years of actual imprisonment, the appropriate Government shall dispose of the said application in the light of the aforesaid factors and in accordance with law.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting the requisites.
I agree.
(Jay Sengupta, J.) (Joymalya Bagchi, J.)