IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Joymalya Bagchi
The Hon’ble Justice Suvra Ghosh
C.R.A. 596 of 2011
Dulal Murmu @ Gadai
State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharyya .. Advocate
Ms. Mitali Mukherjee .. Advocate
For the State : Mr. Arun Kumar Maity .. Ld. A.P.P.
Mr. Sanjay Bardhan .. Advocate
Mr. Tarun Chatterjee .. Advocate
Heard on : 06.12.2019
Judgment on : 06.12.2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 1st July and
4th July, 2011 passed by the learned Additional Sessions Judge, 2nd Court, Suri,
Birbhum in Sessions Case No. 169 of 2010 convicting the appellant for
commission of offence punishable under Section 302 of the Indian Penal Code
and sentencing him to suffer rigorous imprisonment for life and to pay fine of
Rs.5,000/, in default, to suffer rigorous imprisonment for six months more.
The prosecution case as alleged against the appellant is to the effect that
the appellant was married to Laxmi Murmu (since deceased) six months prior to
the incident. After marriage, Laxmi started residing at her father-in-law’s house
at Majhipara, Gopalnagar. Appellant used to work as a night guard in a farm of
Surajit Sarkar (PW7) of Bolpur near the Gopalnagar bus stand. At night Laxmi
used to stay in the quarter provided to the appellant inside the farm. During her
short matrimonial life, Laxmi was subjected to physical and mental torture by
the appellant over trifling family issues. On the fateful night between 8th and 9th
June, 2010 Laxmi had gone to the room of the appellant in the farm. Next
morning villagers from the matrimonial home of Laxmi informed her father
namely, Raja Hembram (PW1) that her daughter was seriously ill. They rushed
to the farm house and found Laxmi lying dead in the caretaker’s room. The
appellant had ran away. PW1 lodged written complaint at the police station
resulting in registration of Illambazar Police Station Case No.81 of 2010 dated
9th June, 2010 under Sections 498A/Section302 IPC. Police came to the place of
occurrence and seized the wearing apparels of Laxmi as well as a skipping rope
from the place of occurrence. In conclusion of investigation, charge-sheet was
filed against the appellant. The case being a sessions triable one was committed
to the Court of Sessions and transferred to the court of the learned Additional
Sessions Judge, 2nd Court, Suri, Birbhum for trial and disposal. Charges were
framed against the appellant under Sections 498A/Section302 of the Indian Penal
Code. The appellant pleaded not guilty and claimed to be tried. In the course of
trial, prosecution examined 12 witnesses and exhibited a number of documents.
The defence of the appellant was one of innocence and false implication. In
conclusion of trial, the trial Judge by the impugned judgement and order dated
1st July, 2011 and 4th July, 2011 convicted and sentenced the appellant, as
aforesaid. The appellant however, was acquitted of the charge under Section
498A of the Indian Penal Code.
Mr. Partha Sarathi Bhattacharyya, learned advocate appearing for the
appellant argued that no evidence of torture of the victim by the appellant was
lead on behalf of the prosecution. Accordingly, the appellant was acquitted of
the charge under Section 498A IPC. Hence, motive to commit the crime has not
been established. No one saw the victim go to the room of the appellant in the
farm house on the fateful night. Presence of the appellant at the place of
occurrence has also not been proved. Relation witnesses deposed with regard to
the incident for the first time in court. Post mortem doctor had withheld final
opinion with regard to the cause of death till receipt of viscera report. Hence, the
prosecution case suffers from various infirmities and ought to be disbelieved.
On the other hand, Mr. Arun Kumar Maity, learned Additional Public
Prosecutor along with Mr. Sanjay Bardhan, learned advocate appearing for the
State argued there is ample evidence on record that the deceased used to sleep
at night in the room of the appellant in the farm house. She was found dead in
the room and the appellant had ran away. No explanation is forthcoming from
the appellant with regard to the cause of death. Farm house was surrounded by
a wall improbabilising entry of outsiders to commit the crime. Post-mortem
doctor (PW10) found ligature mark on the neck of the deceased and opined that
she had died due to strangulation which is homicidal in nature. Hence, the
appeal is liable to be dismissed.
PW1, 2, 3, 4, 5 6 are relations of the deceased.
PW1, Raja Hembram is the father of the deceased and the de-facto
complainant in the instant case. He deposed his daughter Laxmi was married to
the appellant one year ago. Appellant worked as a night guard in a farm near
Gopalnagar village. After marriage, Laxmi used to stay in her father-in-law’s
house at Gopalnagar during the day. At night she used to sleep with her
husband in a room inside the farm. Whenever Laxmi returned home, she
complained that the appellant used to quarrel with her over domestic matters.
He was informed by the villagers from the matrimonial home of his daughter
that the latter was seriously ill. He rushed to the farm and found his daughter
lying dead. Appellant had ran away. He lodged written complaint which was
scribed by Jayanta Hansda (PW6). Police came to the spot, held inquest over the
dead body of the victim and he put his signature thereon. Police seized wearing
apparels as well as skipping rope under a seizure list.
PW2, Smt. Champa Hembram is the mother of the deceased Laxmi. She
corroborated the evidence of her husband (PW1). She deposed Dulal used to
work as a night guard in the farm. The farm is at a distance of 4-5 minutes from
the house of Dulal.
PW4, Basit Hembram is the son of PW1. He has also deposed with regard
to the torture meted out upon Laxmi by her husband i.e. the appellant herein
under the influence of liquor. He deposed Gopal Hembram, his brother received
a message on his mobile phone that Laxmi was in a serious condition. He along
with his parents went to Gopalnagar village. Nobody was found at the residence
of Dulal. Thereafter they went to the room of Dulal in the farm house. Laxmi
was lying dead in the room. Dulal was not found in the premises.
PW3 (Mohan Hembram) and PW5 (Rajen Hembram) are the cousins of the
deceased Laxmi. They have corroborated the evidence of PW1, 2 4.
PW6, Jayanta Hansda is the scribe of the FIR. He proved the report.
PW7, Surajit Sarkar is the owner of the farm house where the appellant
used to work as a night guard. He deposed there is one room for the caretaker
inside the farm where the appellant used to stay. The farm was surrounded by a
boundary wall. On 9th June, 2010 he received telephonic information that
someone was murdered in the farm. He went and found that a woman was lying
dead in the night guard’s room. There was an injury mark on her neck.
PW9, Sanjay Kumar Roy was posted as Deputy Magistrate and SDO,
Bolpur. He conducted inquest over the dead body of Laxmi at Bolpur SD
PW10, Dr. Chandan Ghosh found the following injuries:-
“1. One black ligature mark complete around the neck 3”
below the mandible.
2. One black ligature mark incomplete around the neck 1″
below the mandible.
3. The tongue protruded and congested.”
He opined that death was due to effects of asphyxia caused by
strangulation which were ante mortem and homicidal in nature. He however,
stated that final opinion will be given after receipt of viscera report.
PW12, Abdul Kalam is the Investigating Officer of the case.
From the evidence of the witnesses particularly PW1 to 5 herein it is clear
that Laxmi was married to the appellant. After marriage, Laxmi was staying at
her father-in-law’s house in village Gopalnagar. Appellant used to work as a
night guard in the farm house of Surajit Sarkar (PW7). At night the couple
occupied the caretaker’s room in the farm house. In the morning of 9th June,
2010 father of the victim (PW1) and her relations were informed that Laxmi was
seriously ill. They rushed to her father-in-law’s house at Gopalnagar and
thereafter to the farm house. In the farm house they found Laxmi lying dead in
the caretaker’s room with a ligature mark around her neck. Appellant was not
found at the spot. Post mortem doctor opined that Laxmi had died due to
asphyxia by strangulation which was ante mortem and homicidal in nature. In
view of the nature of injury suffered by the deceased, opinion of the post
mortem doctor with regard to homicidal death by strangulation is beyond doubt.
Further opinion in that regard on receipt of viscera report would not, in my
opinion, alter such conclusive view as to the cause of death.
Analysis of the aforesaid evidence, therefore, leaves no doubt that on the
fateful night Laxmi had been murdered by strangulation in the caretaker’s room
which was occupied by the appellant. It has been argued that no one saw the
appellant and Laxmi go to the said room on the fateful night. Ample evidence
has come on record that the appellant and Laxmi resided in the said room as
husband and wife at night. Under such circumstances, onus shifts on the
appellant to rebut such evidence and show that he was not present on the
fateful night in the room which was ordinarily occupied by him and his wife. No
effort to that end has been undertaken by the appellant.
On the other hand, presence of any outsider in the room appears to be
highly unlikely in view of the fact that the farm house is surrounded by a wall
and no one apart from the appellant used to reside in the room. Vague
suggestion with regard to the fact that one Alamgir also worked in the farm is of
little help in view of the unequivocal and consistent evidence on record that it
was the appellant alone who worked as a night guard and resided with his wife
in the caretaker’s room in the farm. Thus, the presence of the appellant along
with his wife in the room at the time of occurrence is fully established and he
has failed to explain the circumstances which lead to his wife’s homicidal death
Under such circumstances, the only irresistible conclusion is that the
appellant was the author of such murderous assault on his wife resulting in her
death. Although the trial court had acquitted the appellant of the charge under
Section 498A IPC, there is evidence on record with regard to quarrels between
the couple over domestic and/or economic issues which prompted the appellant
to kill his wife.
In the light of the aforesaid discussion, I uphold the conviction and
sentence recorded against the appellant.
The appeal is accordingly, dismissed.
Period of detention, if any, undergone by the appellant during
investigation, enquiry and trial shall be set off against the substantive sentence
imposed upon him in terms of Section 428 of the Code of Criminal Procedure.
The lower court records along with a copy of this judgement be sent down
at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties
on priority basis on compliance of all formalities.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)