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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Mumtaz Khan, Jay Sengupta, JJ.
Sapu Dakua & Anr. - Appellant
Versus
The State of West Bengal - Respondent
C.R.A. 241 of 2005 With C.R.A. 345 of 2005 With C.R.A. 379 of 2005
Decided On : 29-07-2019
Motive: The accused Lakshmi, the wife of the victim, had an illicit affair with the accused Surendra, giving them a motive to murder the victim. Suspicion as regards the lodging of First Information Report: The incomplete first information did not harm the case as the prosecution was ultimately based on the evidence of the child witness. Eye-witness account: The sole eye-witness, the victim's daughter, gave a detailed and credible account of the murder. Source of light: The eye-witness's account of the incident in the light of the kitchen was credible and not contradicted. The evidence of the other child: The other minor child's post-occurrence account corroborated the eye-witness's evidence. No dacoity: The evidence showed that there was no dacoity, contradicting the accused's attempt to frame the incident as a dacoity. Medical evidence: The medical evidence supported the ocular evidence, pointing towards the murder of the victim. Subsequent conduct of the accused: The subsequent conduct of the accused living together and running the victim's husking mill indicated the nature of their relation. Purported defects in investigation: Non-sending of articles to the FSL or non-production of articles did not harm the prosecution case. Examination under Section 313 of the Code: The accused had clear knowledge about the charges they were facing and about the incriminating circumstances present against them.
Fact of the Case:
The case involved the murder of the victim, with the accused being convicted under Section 302 of the Penal Code and sentenced to suffer imprisonment for life along with a fine of Rs. 10,000/- each. The victim's daughter, a minor, was the sole eye-witness to the murder.
Finding of the Court:
The court found the evidence of the child witness to be credible and unshaken, corroborated by the post-occurrence witnesses and medical evidence. The accused's subsequent conduct and motive for the murder were also considered. The conviction was modified to Section 302 read with Section 34 of the Penal Code instead of under Section 302 of the Penal Code simpliciter.
Issues: The issues involved the credibility of the child witness, the lodging of the First Information Report, the source of light during the incident, the subsequent conduct of the accused, and the defects in the investigation.
Ratio Decidendi: The court relied on the credible evidence of the child witness, the corroborative post-occurrence witnesses and medical evidence, the accused's subsequent conduct, and the motive for the murder to reach its decision.
Final Decision: The appeal was disposed of, and the conviction was modified to Section 302 read with Section 34 of the Penal Code instead of under Section 302 of the Penal Code simpliciter.
JUDGMENT :
Jay Sengupta, J.
1. These three appeals are directed against the judgment and order of conviction dated 16.03.2005 and sentence dated 18.03.2005 passed by the Learned Special Judge-cum-Additional Sessions Judge, Cooch Behar in Sessions Trial No. 2(6) 02: Sessions Case No. 61/2000, thereby convicting the appellants under Section 302 of the Penal Code and sentencing them to suffer imprisonment for life along with a fine of Rs. 10,000/- each, in default to suffer simple imprisonment for one year. During pendency of the appeals the appellant Sapu Dakua alias Amitabha Dakua passed away and the appeal abated as against him on 04.07.2017.
2. On 06.11.1996 at about 12.05 hours, PW 1 lodged the instant First Information Report with the Mathabhanga Police Station alleging commission of an offence under Section 302 read with Section 120B of the Penal Code against unknown assailants. PW 1 alleged that on 06.11.1996 at about 8.00 hours, PW 9 came in a motor cycle and informed him that PW 1’s brother Dilip Sarkar was murdered last night at 1.30 hours in his house by some unknown miscreants. The victim was rushed to a hospital by PWs 2, 3, 8 and 9. PW 1 visited the hospital and found the victim dead. He further alleged that the victim’s wife Lakshmi, an appellant, had an affair with one Surendra, another appellant. The victim had objected to this. The wife had earlier given poison to the victim mixed with milk. PW 1 believed that the victim’s wife collaborated with the miscreants to murder him. PW 3, the couple’s son, who was sleeping by the side of the victim, did not have any clue about what was happening. The victim’s wife gave out different versions on different occasions.
3. The investigation commenced. On 06.11.1996 at about 9.35 hours PW 13, the Investigating Officer, held an inquest over the deadbody of the victim in the hospital in the presence of witnesses including PW 9. The right eyeball had come out of the socket. There were marks of grave injuries on the left eye. Blood seeped from the nose. The preliminary investigation revealed that PW 2 saw the victim lying dead on bed in a pool of blood. The miscreants wounded the victim with a firearm. On 06.01.1996 at 15.30 hours PW 15, a doctor, conducted the postmortem examination over the deadbody of the victim. According to him, the death was caused by a stab injury over the head that destroyed the brain matter. The weapon used was probably circular in diameter. After completion of investigation, a charge sheet was submitted. On 15.09.2000 charges were framed against the four accused under Section 302 read with Section 120B of the Penal Code.
4. During trial, the prosecution examined as many as 17 witnesses to establish its case. The defence case was mainly a denial of the prosecution version.
5. From a careful reading of the evidence on records, it appears that PW 1 was the victim’s brother and the de facto complainant of the case. He supported the First Information Report. After lodging of the First Information Report, PW 2 told him that the accused had murdered the victim. PW 3, who was sleeping by the victim’s side received stains of blood on him. But, PW 3 did not say anything to PW 1 before lodging the First Information Report. PW 1’s mother told him that the accused Lakshmi had earlier tried to serve poison to the victim along with meat. In his cross-examination, PW 1 admitted that he did not personally witness anything illicit between the accused Lakshmi and the accused Surendra. PW 1 was a post-occurrence witness. He saw bloodstains on the ‘chaddar’ under the cot, the same having percolated through the bed, and also at the entrance. PW 2 was the minor daughter of the victim, aged about 9 years at the date of occurrence. She was an eye-witness to the murder. She identified all the accused in Court. She deposed that they were staying in a big room partitioned into two. At night, the parents went outside. Bulbs were put off. She saw a scuffle near the verandah and the accus
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