Calcutta High Court (Appellete Side)
Dinabandhu Halder vs The State Of West Bengal on 3 September, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And.
The Hon'ble Justice Jay Sengupta
CRA No. 695 of 2005
Dinabandhu Halder
Vs.
The State of West Bengal
For the appellants : Mr. Prabir Majumder
Mr. Sandip Ghosh
: Mr. Arun Kumar Maity
For the State
Ms. Zareen N. Khan.
Mr. Amanul Islam
Heard on : 11.07.2018 & 12.07.2018
Judgment on : 03.09.2018
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction dated August 19, 2005 and sentence dated August 20, 2005, passed by the learned Additional District and Sessions Judge, Fast Track Court No.1, North 24 Paraganas, Barasat, in Sessions Trial No. 3(11) 2004 arising out of Sessions Case No. 57(09) 2004. By virtue of the impugned judgment the appellant was convicted for the commission of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to in short as IPC) and was sentenced to suffer imprisonment of life and to pay a fine of Rs. 2000/-in default to suffer rigorous imprisonment for one year with a direction for usual set off as per the provision of section 428 of the Code of Criminal Procedure (hereinafter referred to in short as Cr.P.C).
The prosecution story as unfolded during trial is as follows:
Sumi Haldar, since deceased, previously got married to one Raj Kumar through whom a son Manoj (P.W.7) was born. After death of her first husband, Sumi Haldar married the appellant through whom a son and a daughter were born. Appellant having no permanent accommodation was initially given shelter by Sumi's mother (P.W.14) in her house at Nimtola but thereafter due to some inconvenience Sumi's brother (P.W.1) arranged one room on rent at Paschim Kodalia under P.W.4. P.W.1 was also residing there as tenant. Accordingly, Sumi Haldar, since deceased, started residing there along with the appellant and her three children.
On June 9, 2004 around quarter to six in the morning PW-7, minor son of the Sumi Haldar, reported to P.W.1 (maternal uncle) that his father namely the appellant after strangulating his mother to death with a pillow fled away from the room. PW1 rushed to the room of his sister, Sumi Haldar and found her lying dead in the bed on the floor. He then reported the incident to the landlord (PW-4) and other tenants of the premises and thereafter lodged a complaint (Ext-1/1) against the appellant at the Ghola Police Station scribed by PW9.
On the basis of the above complaint, Ghola Police Station Case No. 98 dated June 9, 2004 under Section 302 of IPC was started against the appellant and the case was endorsed to PW 14 for investigation.
On the same day, P.W.14 arrived at the place of occurrence and made inquest over the dead body of the victim in presence of PW 1, PW 4 PW 10 and one Dhiren Das and thereafter sent the dead body for postmortem examination. The name of the appellant surfaced during inquest as assailant.
Postmortem examination over the dead body of the victim was conducted at the Barrackpore Police Case Hospital Morgue by the doctor (PW13) on the same date at 3 p.m. and after postmortem examination he prepared a report (Ext.6). During postmortem examination PW13 found several dark reddish in colour abrasions on the face, neck and hands and lacerated injuries red in colour on the lips and those injuries showed evidence of vital reaction. He also found blood stains in the mouth and nostrils which is evidence of asphyxia death due to ruptured dilated capillaries and evidence of strangulation by some hard blunt substance and by the hard blunt substance he meant forearm. In the opinion of the doctor (P.W.13)death was due to the effects of smothering (asphyxia death due to closure of respiratory passages like mouth, nostrils with hand or other substance like pillows, blanket etc.), ante-mortem and homicidal in nature.
Thereafter, on completion of investigation charge sheet was submitted against the appellant under Section 302 IPC.
On November 23, 2004, charge under Section 302 IPC was framed against the appellant and after he denied his involvement in the crime, trial commenced.
In order to prove the case, prosecution examined 14 witnesses and also produced and proved certain documents namely the FIR, rough sketch map with index, seizure list, inquest report, postmortem report, statement recorded under Section 164 Cr. P.C. etc. and thereafter on conclusion of evidence and after examination of the appellant under Section 313 Cr.P.C. and his two defence witnesses namely his father and his co-villager, learned trial judge passed the impugned judgment.
Mr. Prabir Mazumdar, the learned Advocate appearing for the appellant submitted by that the evidence of PW7, a minor, was not believable considering his conduct in remaining silent for almost three hours without raising any hue and cry and the manner of his coming out of the room which was locked from outside was also doubtful. The manner of death of the victim as narrated by P.W.7 differs with the opinion of the autopsy surgeon. On the relevant night the appellant was not present in the house as on the previous day he had been to his father's house on getting news of his father's illness where he remained till June 10, 2004 and this has been corroborated by his father (DW-1) and a co-villager (DW-2). According to Mr. Mazumdar, prosecution has failed to prove the charge of murder against the appellant beyond all reasonable doubts.
Mr. A.K. Maity, learned Advocate appearing for the State, submitted that the incident was witnessed by PW-7, the minor son of the victim, who has vividly narrated the incident before the Court and also before the Magistrate during his examination under 164 Cr. P.C. and this also found corroboration from medical evidence. He further submitted that PW 2, a tenant living adjacent to the room of the appellant also saw the appellant to go out of his room on that night at 3.00/3.30 a.m. and she had even talk with the appellant and in view of the above the plea of alibi taken by the appellant has no basis at all. According to Mr. Maity, prosecution has been able to prove the charge against the appellant beyond any doubt.
We have considered the submissions of the learned counsels appearing for the respective parties and gone through the materials on record to consider the propriety of the impugned judgment passed by the learned court below.
From the evidence of the doctor (PW-13) and the P.M. report (Ext-6), it is evident that during post mortem examination over the dead body of the victim on June 9, 2014, the Autopsy Surgeon found several dark reddish in colour abrasions on the face, neck and hands and lacerated injuries red in colour on the lips, blood stains in the mouth and nostrils which is a evidence of asphyxial death due to ruptured dilated capillaries and evidence of strangulation by some hard blunt substance by which he meant forearm and in his opinion death was due to the effects of smothering (asphyxia death due to closure of respiratory passages like mouth, nostrils with hand or other substance like pillows, blanket etc.), ante-mortem and homicidal in nature. He was cross-examined by the defence but his evidence remained unshaken. In such circumstances, there was no reason to disbelieve the version of the doctor.
PW7 is the minor son of the victim. He has vividly narrated the entire incident stating that he witnessed the incident. He has clearly deposed that the appellant killed his mother by pressing a pillow on her face after locking her hands in his legs sitting on her chest. His mother tried to free her legs but gradually his mother stopped moving her legs and became still and thereafter the appellant went out of the room after closing the door. He specifically deposed that at the relevant point of time he was in the room sleeping on the floor and witnessed the incident and after departure of his father (appellant) he removed the pillow from the face of his mother and called his mother but she did not respond. Then he with a piece of brick lying in the room crashed the door and went to his maternal uncle and reported them the incident. Then his maternal uncle (P.W.1) and his wife (P.W.3) came to his room and removed his brother and sister from the bed. Thereafter, police came and took away the dead body by a van. He identified the appellant in course of his examination before court. He also deposed that on the relevant night his mother (victim) offered meal to the appellant but he refused and demanded money to go to Mumbai and when she did not agree there was a quarrel between them. He also deposed that he narrated the incident to the police as also before the Magistrate. P.W.8 is the Magistrate who recorded the statement of P.W.7 under Section 164 Cr.P.C (Exhibit 5) on the next date of incident. We find that such statements of P.W.7 made on oath before the court found corroboration from the statements made before the Magistrate. P.W.7 was cross-examined by the defence at length and he withstood the cross-examination with courage and boldness and his testimony could not be impeached by the defence in regard to the genesis of the incident. His evidence appears to be credible and trustworthy. The ocular evidence narrated by P.W.7 also found corroboration from medical evidence. There was no discrepancy so far as the medical evidence and the ocular evidence are concerned as claimed by the learned Advocate for the appellant.
With regard to creditability of P.W.7, as submitted by the learned advocate for the appellant, for remaining silent after seeing the incident and the manner of his coming out from the room, we find from the evidence on record that at the relevant time P.W.7 was only 7 years old and his other sister and brother were only 2 ½ years and 6 months old and they had come to reside at that place only about 1 ½ months ago. So naturally it is not expected that he had much acquaintance with the local people from whom he can get help excepting his maternal uncle. Considering his age, it was also not expected that he knew the consequences of pressing by a pillow or to make any resistance to the appellant or to cry. As such after leaving of the appellant and after removal of the pillow when he found his mother not responding to his call he realized the situation and thereafter took desperate attempt to come out of the room. In doing so, he took the help of a piece of brick found lying in the room and by breaking one side of the door he managed to come out therefrom and then and there reported to his maternal uncle. This also found corroboration from P.W.1 and P.W.3, maternal uncle and aunt of P.W.7 and P.W.4, the landlord of the appellant, who also came at the place of occurrence after getting the news of the incident. He too found one portion of the door of the victim's room broken and which was seized by police and kept in his Jimma. We do not find anything which renders his version unacceptable and improbable. On the other hand evidence adduced by P.W.7 has a ring of truth and is cogent, credible and trustworthy.
PW1 is the defacto-complainant. He has clearly deposed that on June 9, 2004 at about 5.30/6.00 a.m, PW7 came to him and told him that his father killed his mother by pressing a pillow on her face and requested him to come to his room. He then rushed to the house of his sister with Manoj and found her dead body lying in the floor of her room. He also noticed that one of the doors of the room was broken through which PW7 came out from the room. He then reported the incident to their landlord, Mantu Das (P.W.4) and lodged the complaint (Ext.1/1) at the P.S scribed by P.W.9. He was cross-examined by the defence at length and during cross-examination he even affirmed his statements made in his examination-in-chief and nothing was brought on record to render his evidence dis-believable. PW9 has corroborated P.W.1 with regard to the scribe of the complaint as per narration of PW1.
PW 3 is the wife of PW1. She too has corroborated the statements of her husband (PW1) that in the early morning of June 9, 2004, PW7 came their house and reported that his father killed his mother by pressing a pillow on her face and left the room after locking. They then went there and found the victim lying dead on the floor. She has also narrated the behavior of the appellant towards victim and his conduct. She deposed that the appellant used to work as a labour in a factory but he frequently absented himself from the work for which quarrel cropped up between the appellant and the victim and poverty is also one of the reasons for quarrel in their family and they used to intervene to settle their quarrel. She has also deposed that they brought the appellant and the victim to their locality and arranged their residence and after coming to their locality victim used to complain against the behavior of the appellant. She was cross- examined by the defence but nothing was brought on record to render her evidence dis-believable. It appears from her evidence that she was not examined by the Investigating Officer but that can not be the sole reason to discard her evidence.
PW4 is the landlord of the premises in question. He has deposed that appellant was a poor fellow and often there was quarrel in their family for money and on the relevant morning some of his tenants and people of the locality informed him that the appellant fled away after killing his wife and the appellant's son Manoj (PW7) also told them that his father fled away after killing his mother by pressing a pillow on her face. He also found broken door of the room of the victim. PW5 is his son while PW6 is the younger brother of PW4. According to them on getting the news of death of the victim they went to the house of the victim and found the dead body of the victim.
PW 2, a tenant in the said premises adjacent to the tenanted room of the victim, has deposed that victim along with her husband/appellant came there as tenant one and half months prior to the death of the victim and on the night preceding to the morning when the victim was found dead she woke up at 3.00 a.m and found the appellant leaving his house and on being asked he told her that he was going to avail a train. She then went to sleep again and when she woke up she found gathering of local people in the room of the victim and came to know about her death. According to her she heard the noise of quarrel from the room of the victim on earlier occasions. She identified the appellant in course of recording her evidence before the Court as the victim's husband. Her evidence remained unshaken during cross-examination and the defence failed to impeach her credibility. Thus the presence of the appellant in his room on the relevant night as narrated by P.W.7 found corroboration from PW2.
PW-10 is the relation of the victim from her matrimonial side while PW 11 is the wife of PW10. According them they heard from PW7 that the appellant killed the victim and went away from the room. They too were cross-examined by the defence but nothing was brought from their evidence to disbelieve their testimonies.
PW 12 is the mother of the deceased Sumi Haldar. She has also deposed that victim used to report her about ill-treatment by the appellant and on the following day of death of the victim she went to the house of her son (P.W.1) and heard from PW7 that appellant killed her daughter by pressing a pillow on her face. She too was cross-examined by the defence at length but nothing was brought out in her cross-examination which could lead to disbelieve her.
P.W.14 is the investigating officer who had been to the place of occurrence on getting the news of death of the victim, held inquest in presence of the witnesses and prepared a report (Ext.2/3) where name of the appellant surfaced as the assailant, prepared rough sketch-map with index of the place of the occurrence (Ext.8), sent the dead body for postmortem examination, seized one broken shutter of door (Mat. Ext.1), one mat (Mat.Ext.II), pillow (Mat. Ext.III), piece of brick (Mat. Ext.IV) by a seizure list (Ext.3/2), wearing apparels etc. of the deceased by another seizure list (Ext9), forwarded the minor son of the victim before court for recording his statements under section 164 Cr.P.C., arrested the appellant and forwarded him to court and thereafter on completion of investigation submitted charge-sheet against the appellant. There, however, appears some lapse/negligence on the part of the investigating officer in not sending the seized articles for forensic examination. But it is also settled law that for certain defects in investigation, lapse, negligence or omission etc. on the part of the I.O., the accused can not be acquitted.
Appellant in support of his claim of alibi has examined his father and one neighbor as DW 1 and DW 2 respectively. According to DW1, he was sick due to stomach problem and as such on being informed by his neighbor (DW 2) appellant came to his house at about 8 p.m. on June 8, 2004. But during cross- examination he admitted that he did not get himself treated by any doctor for his stomach disease on June 8, 2005. Furthermore, it was evident from his evidence that he was not aware where the appellant used to reside with his family nor he ever saw the wife of the appellant or their children nor he ever visited to their house and he even scolded the appellant for marrying the victim. This itself indicates that he was not at all happy with the appellant for marrying the victim.
According to DW 2, on June 8, 2004 the father of the appellant became sick and as such DW 1 told him to inform the appellant. Accordingly, on June 8 2004 he met with the appellant at his place of work and informed him about the sickness of his father and as such appellant came to his house. He further deposed that he consulted a quack doctor relating to the illness of DW1 who gave some tablets which he gave to DW1. He admitted, during cross-examination that he did not collect any medical certificate regarding illness of DW1 nor any cash memo after purchase of medicine. It appears to be very strange that DW 2 being a literate person appearing for competitive examination for different services did not collect any prescription from the doctor or any document with regard to procurement of medicine. He did not spell the name of the doctor nor about the medicine prescribed by him. Even no such doctor was examined who supplied medicine for the reported illness of D.W.1. According to DW1 appellant is his youngest son. So,it is not that appellant was the only son of DW1 and there was no other member in the family to look after him. Even, if at all it is believed that DW1had fallen sick for his stomach problem then the nature of the illness does not justify to call the appellant from such a long distance. The evidence of the defence witnesses do not inspire confidence in the light of the evidence adduced by the minor son of the victim which even found corroboration from PW2 who saw the appellant going out of his tenanted room on the relevant night. Ocular evidence of eye witnesses can not be discarded lightly. We,therefore, find that defence has failed to prove the plea of alibi.
After scrutinising 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 in committing murder of his wife Sumi Haldar.
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.
The lower court's records along with a copy of the judgment be sent back to the learned court below for information and necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.) I agree Jay Sengupta, J.)