IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Md. Mumtaz Khan
With
The Hon’ble Mr. Justice Jay Sengupta.

CRA No. 427 of 2008

Laksman Bhuiya.
Vs.
The State of West Bengal.

For the appellant : Mr. Mainak Bakshi, learned Advocate
Ms. Aindrila De, learned Advocate

For the State : Mr. Rana Mukherjee, learned Advocate
Ms. Sujata Das, learned Advocate

Heard finally on : 12.06.2019
Judgment on : 21.06.2019

Md. Mumtaz Khan, J.

This appeal has been preferred by the appellants assailing the judgment

and order of conviction and sentence dated April 25, 2008 and April 28, 2008

passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Paschim

Medinipur in Sessions Trial Case No. XXIV of July 2007. By virtue of the

impugned judgment, appellant was convicted and sentenced to suffer rigorous

imprisonment for life and to pay a fine of Rs. 10,000/- in default to suffer simple
imprisonment for two months for the offence punishable under Section 302 of

the Indian Penal Code (hereinafter referred to as SectionIPC) and was also sentenced to

suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in

default to suffer simple imprisonment for two months for the offence punishable

under Section 498 A IPC with a direction that both the sentences shall run

concurrently and the period of detention under gone in custody be set off as per

provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred

to as the Cr. PC. )

The short facts leading to filing this appeal are as follows:

On October 11, 2006 at 06.15 hrs, ASI Somnath Chakraborty, duty Officer,

Kaharagpur Local Police Station received one telephonic information from PW 2

that appellant Lakshman Bhuiya had committed murder of his wife Sumitra

Bhuiya by an axe and accordingly he diarised the said information being GDE

No. 556 (exhibit 8). A UD Case being 88/06 dated October 11, 2006 was started.

As per direction of PW 19, the officer in charge of Kharagpur local police station,

PW 14 along with force went to the spot. At 07.15 hrs. PW 1, Upa Pradhan

submitted one written complaint stating that at around 04.00 a.m. on getting the

news of appellant killing his wife Sumitra by an axe, he went to the place of

occurrence. On being questioned by him,appellant confessed his guilt and as

such he was detained and reported to the Duty Officer over phone. SI P.K.

Mistri, on receipt of that complaint forwarded the same to the Officer-In -Charge

of Karagpur Local Police Station for starting of the case. On the basis of that

complaint, PW 19 started Karagpur Local Police Station Case No. 222 dated
October 11, 2006 under Sections 498A/Section302 IPC against the appellant and the

case was endorsed to PW 22 for investigation.

PW 22 held inquest on the same date at 07.15 hrs over the dead body of

the victim inside the house of the appellant where the dead body of the victim

was lying in presence of PW1, PW2 and PW16. During inquest PW 22 detected

deep wide wound on the head and neck of the deceased and bleeding from the

left ear and nose and found blood smeared axe near the dead body. The name of

the appellant surfaced during inquest to be the assailant.

On the same day at about 02 p.m., Dr. Ranjit Kumar Hanshda conducted

post mortem over the dead body of the victim at Kharagpur sub- divisional

hospital morgue and after completion of post mortem examination prepared a

report (exhibit 9). During postmortem examination the doctor found cut injuries

on the left side of fore head, middle of the head, left side of the neck and back of

the head and abrasion over the right cheek, left side of fore head, right elbow

joint etc. and opined that the cause of death was due to cardio-respiratory

failure,shock and haemorrhage, ante mortem in nature and those injuries were

sufficient to cause death in ordinary course of nature.

PW 22, thereafter, on completion of investigation submitted charge sheet

against the appellant under Sections 498A/ Section302 IPC.

On August 28, 2007 charges under Section 498A/ Section302 were framed

against the appellant and upon his denial of any involvement in the crime trial

commenced.

In order to prove its case, prosecution examined as many as 22 witnesses

and also produced and proved the FIR, inquest report, seizures, post mortem
report, rough sketch map with index, GDE etc. and thereafter on completion of

trial and examination of the appellant under Section 313 Cr. P.C. learned trial

judge passed the impugned judgement

Mr. Mainak Bakshi, learned Advocate appearing for the appellant

submitted that the impugned judgment, order of conviction and sentence are not

sustainable in law as place of occurrence is not fixed, weapon of offence though

seized or any FSL report was not produced during trial, doctor who conducted

post mortem examination was also not examined to ascertain as to whether it

was homicidal death or not and the evidence of PW11,minor daughter of the

victim is not reliable. Mr. Bakshi further submitted that extra judicial confession

of the appellant was not made voluntarily and the same should not be acted

upon. According to Mr. Bakshi prosecution has failed to bring home the charge of

murder against the appellant. Alternatively, it was submitted by Mr. Bakshi that

the appellant is not a habitual offender and the incident might have occurred at

the spur of the moment and there was no intention to kill, so at best the

provision of Section 304 Part 1 is applicable.

Ms. Sujata Das learned Advocate appearing for the appellant along with

learned Advocate Mr. Rana Mukherjee submitted that there were frequent

quarrels between the appellant and the victim and the prosecution witnesses

having no enmity with the appellant have clearly stated about the involvement of

the appellant in causing the death of his wife and even the appellant also made

extra judicial confession admitting his guilt. She further submitted that though

the post mortem report does not mention that it was homicidal in nature but the

evidence of the witnesses clearly indicates that it was a murder and the appellant
also corroborated the same during examination under Section 313 Cr. P.C. She

further submitted that even the weapon of offence was recovered from the place

of occurrence where the dead body was lying. She also submitted that the seized

weapon and other seized articles were sent to the FSL for examination but no

report was received by the IO. According to Ms. Sujata Das prosecution has been

able to prove the charges against the appellant beyond reasonable doubt.

We have considered the submissions of the learned Advocates appearing

for the respective parties and gone through the evidence and documents of record

to consider the propriety of the impugned judgment.

On perusal of the postmortem report (Ext.9) it appears that on October 11,

2006 during postmortem examination over the dead body of the victim Sumitra

Bhuiya, doctor found cut injury over the left side of the forehead 1½ ” x 1”, cut

injury middle of the head 2” x 1½” x ½ ” , cut injury over left side of the neck 2”

x 1” x 2 ½ ”, cut injury back side of the head 1”x ½ ” x ½ ”,abrasion over right

cheek,over the left side forehead and over the right elbow joint, small cut injury

seen on left forearm, fracture seen over middle of the head (hairline fracture) and

opined that the death was due to cardio-respiratory failure, shock and

haemorrhage, injuries ante-mortem in nature and further that the

injuries(individually or collectively) are sufficient to cause death in ordinary

course of nature.

Thus, it is evident from the P.M. report (Ext.9) and the evidence of the

P.Ws. on record that victim Sumitra Bhuiyan wife of the appellant died unnatural

death and her death was due to effects of cut injuries sustained by her on her
head, neck and other parts of her body. In the instant case autopsy surgeon who

conducted postmortem examination was not available to give evidence and the

P.M. report was exhibited without any objection from the side of the defence. So,

there was no reason not to rely on the postmortem examination report. The

evidence on record as also the inquest report (Ext.4) show that dead body of the

victim bearing sharp cut injuries was found lying inside the house of the

appellant. Defence has also not disputed or denied the injuries found on the

person of the victim and/or cause of her death.

The learned Court below took into consideration the entire circumstances

leading from the place where from the dead body of the victim bearing sharp cut

injuries on her person was found, inquest report, P.M. report, recovery of blood

stained axe, extra judicial confession made to the co-villagers immediate after the

occurrence, evidence of minor children of the victim (P.W.10 and P.W.11) and

the neighbors to arrive at a conclusion that prosecution has been able to prove

the charges under Sectionsections 498A/Section302 IPC against the appellant/husband and

accordingly passed the order of conviction and sentence against him.

P.W.10, minor son of the appellant and the victim, has deposed that on

the relevant night they took fried rice and went to sleep. Thereafter, his father

(appellant) came in drunken condition and committed murder of his mother.

During cross-examination he admitted that he did not see to murder his mother

but specifically stated that his sister saw the same. P.W.11, minor daughter of

the appellant and the victim, has deposed that her father (appellant) while in a

drunken condition killed her mother by an axe. During cross she specifically
stated that on the relevant night while she was sleeping with her mother she felt

pressure on her hand and as such woke up and saw the incident. No such plea

of tutoring or threat to either of them to depose in a certain manner was taken

from the side of the defence. However, when both of them were examined again

by the defence, they turned around and took the plea that earlier on being

tutored by their maternal grandfather they deposed falsely. Evidently, at the time

of their re-examination at the insistence of the defence they were in custody of

their Jetha (uncle) and paternal grandfather. Earlier after death of their mother

they were taken care of by their maternal grandfather. This shows they have

changed their statements with the change of their custody. Considering their

tender age and their dependability, possibility of being gained over can not be

ruled out. Even if the subsequent statements of these minors are believed there

is no evidence on record that on the relevant night appellant was not present in

the house. On the other hand evidence of P.W.1, Upa-Pradhan and FIR maker,

P.W.5, co-villager and P.W.7, sister-in-law of the appellant, show that appellant

after the incident took shelter at the house of his elder brother, about 10/12

cubits away from his house and therefrom he was called by P.W.1. P.W.1 has

clearly deposed that after getting the news of murder of the victim by the

appellant when he went there and enquired about the appellant he came to know

that he was in the house of his elder brother. P.W.5 also deposed that on going to

the place of the occurrence he learnt that appellant after murdering his wife

entered into the house of his elder brother. P.W.7, sister-in-law of the appellant,

during cross-examination by the defence admitted that appellant went to the

house of his elder brother and he was sitting there. Thus, from the above it was
clearly evident that appellant was very much present in the house at the time of

death of his wife. So, in view of the provisions of section 106 of the Indian

Evidence Actappellant/husband has to discharge the burden as it was within the

special knowledge of the appellant(husband) to explain who killed his wife in his

house and the reason behind such killing. In this regard appellant has taken the

plea that someone might had killed the victim but failed to substantiate the

above claim by producing any cogent and reliable evidence.

With regard to the acceptability of extra-judicial confession, it is well

settled that if such extra-judicial confession is made voluntarily and in a fit state

of mind and the evidence of extra-judicial confession is reliable, trustworthy and

beyond reproach and passes the touchstone of credibility it can be accepted and

can be the basis of a conviction.

In this regard prosecution has relied on the evidences of the co-villagers,

neighbors and even the relations of the appellant namely P.W.1, P.W.2, P.W.3,

P.W.4, P.W.5, P.W.6, P.W.8, P.W.9, P.W.12, P.W.13 and P.W.15.

PW1 is the Upa Pradhan and FIR maker. He is the neighbour of the

appellant and a post occurrence witness. He has deposed that on the relevant

date at about 03.30/4 a.m. on hearing cries he woke up and went at first to the

Sitala temple. There he found many persons assembled who told him about

murder of appellant’s wife. On making query about the appellant, he came to

learn that appellant was in the house of his elder brother. Appellant was called to

the place and on being asked he confessed in presence of the villagers that he

murdered his wife. Appellant was then detained and police was informed. Police

then came and arrested the appellant and took him away. He identified his
signatures on the inquest report and seizure lists being witness to the inquest,

seizure of both weapon of offence and wearing apparels of the deceased. During

cross by the defence also he specifically stated that after getting the information

of murder of appellant’s wife he enquired the whereabouts of the appellant and

then one of the brother of the appellant informed him that the appellant was at

his brother’s house. Thereafter, appellant came and on being asked he confessed

before them that he murdered his wife. The petition of complaint (Ext.1) also

speaks about the extra-judicial confession made by the appellant.

The above statements of P.W.1 also found corroboration from the co-

villagers namely P.W.2, P.W.3, P.W.5 and P.W.6. They too have clearly deposed

that on hearing cries coming out from the house of the appellant they went there

and found the appellant’s wife lying dead in his house having severe cut injuries

and on being asked appellant confessed that he committed murder of his wife by

an axe. As such appellant was detained and information was given to the P.S.

Thereafter, police came and arrested the appellant and took him away. They too

were cross-examined by the defence but nothing came out contrary to their

statements-in-chief rather they affirmed the same. This also found

corroboration from P.W.8,a school teacher and neighbour of the appellant.

According to him also on hearing cries coming out from the house of the

appellant, he went there and in presence of P.W.1 and other villagers appellant

confessed that he committed murder of his wife by an axe. Thereafter, police

came, arrested the appellant, seized the axe and sent the dead body for post

mortem examination. During cross-examination also he clearly stated that

appellant confessed in their presence that he committed murder of his wife and
after his confession he was tied by the people. P.W.9, a co-villager, too has

deposed that appellant confessed in their presence that he murdered his wife by

an axe. During cross-examination he even affirmed same. This also found

corroboration from P.W.13 and P.W.15, sisters-in-law of the appellant by distant

relation. P.W.4, brother of the appellant, also admitted that on the relevant date

at about 3.30/4 a.m. he woke up on hearing cries and then on coming out from

the room he saw the wife of the appellant lying dead inside the room of the

appellant and also found neighboring people including P.W.1 there. P.W.1 then

told him that appellant confessed that he murdered his wife. Though he admitted

that he stated to the police that appellant on being asked confessed that he

committed murder of his wife. P.W.12 and P.W.13, sisters-in-law of the

appellant by distant relation though did not fully support the prosecution case

and only stated that they came to know from neighbouring people that appellant

committed murder of his wife by an axe. But during cross-examination by the

defence they admitted that appellant made confession before the local people as

also before police. P.W.16, another sister-in-law of the appellant by village

courtesy though did not support the case of the prosecution for which she was

declared hostile by the prosecution but during cross-examination she admitted

that she stated to the police that on the relevant morning at about 4 a.m. on

hearing cries of the appellant she woke up from sleep and went to his house and

found many persons including P.W.1 there and in their presence on being asked

appellant told them that he murdered his wife by axe and she found the victim

lying in the ground in a pool of blood with injuries caused by axe and thereafter

police came and arrested the appellant with axe. The injuries found by the
autopsy surgeon on the person of the victim supports the claim of prosecution

witnesses.

The evidence of the above witnesses especially those of co-villagers and

neighbours of the appellant appears to be unbiased, trustworthy and reliable and

nothing is brought out which may tend to indicate that they may have a motive of

attributing an untruthful statement to the accused/ appellant. Moreover, claim

of extra-judicial confession by the appellant also found corroboration from the

brother as also the sister-in-laws of the appellant. As such there was no reason

to disbelieve the above witnesses. In view of the above, we do not find any

substance in the submissions of learned Advocate for the appellant that extra-

judicial confession was not made voluntarily and the same should not be acted

upon.

With regard to the seizure of the weapon of offence namely the axe and

failure to produce during trial or any FSL report, it is evident from the evidence

on record that P.W.1 and P.W.2 are the witnesses to the seizure of the axe. Ext.3

shows that such seizure was made by P.W.22 from the house of the appellant in

presence of the appellant and seizure witnesses. P.W.1 and P.W.2 identified their

signatures (Ext.3/1 and 3/2) on the seizure list (Ext.3) as also the signature of

the appellant (Ext.3/3) therein. Admittedly, weapon of offence was not produced

during trial nor any FSL report was produced. To this effect P.W.22, the

investigating officer, has specifically stated during his cross-examination that he

sent the seized axe and other blood stained alamats for FSL examination but did

not get the report. However, there is nothing on record to show that he ever took

any initiative to collect the FSL report. This shows omission rather negligence on
the part of the I.O. and defect in investigation. In the matter of SectionPromode Dey vs.

State of West Bengal, reported in (2012) 4 SCC 559, it was decided by the Hon’ble

Supreme Court that non-collection of FSL report might be a defect of

investigation which could not result in acquittal of an accused against whom

enough evidence was available for conviction.

In the light of the above and the evidence on record, we do not find any

substance in the submission made to the effect that the impugned conviction

requires our interference on the ground of failure on the part of the investigation

agency to collect the Forensic Serological Laboratory report.

With regard to cruelty upon the victim/wife by the appellant, it was evident

from the evidence of P.W.1, P.W.2, P.W.4, P.W.6 as also P.W.16, P.W.17 that here

was no peace in the marital life of the victim and the appellant and there were

frequent quarrels between them. Both P.W.16 and P.W.17, father and brother of

the victim have categorically deposed that appellant was a drunkard as also a

gambler and he used to assault the victim and during subsistence of their

marriage appellant married again to another lady. This fact of second marriage

found corroboration from P.W.20, the lady herself and her uncle P.W.21. P.W.20

specifically deposed that appellant married her 5 yrs. ago and after marriage she

started residing with the appellant at his house and then came to know that

appellant was already married and as such she left his house. Interestingly, she

was not challenged by the defence on this score. Under the circumstances, there

was no reason to disbelieve them. Learned trial judge, taking into account the

above found the appellant guilty of the offence punishable under Sectionsection 498A
IPC. Therefore, we do not find any error in the decision making process of the

learned court below in this regard.

The next issue which needs our consideration is whether the case falls

under the provisions of Section 302, SectionIPC or under Section 304, Part I SectionIPC, as

raised by the learned Advocate appearing for the appellant. In the case in our

hand, we find that there was no peace between appellant and the victim/ wife

and there were frequent quarrels between them for which on most of the

occasions victim had to go away from the appellant’s house. It has also come out

from the evidence on record that during subsistence of appellant’s marriage with

the victim he married again. According to P.W.2, appellant confessed before

them that due to family trouble he murdered his wife.P.W.6 also deposed that on

being asked the reason for such murder, appellant told them that there was no

peace between him and his wife and for this he murdered her by an axe. P.M.

report shows that during postmortem examination doctor found cut injuries of

different dimensions over the left side of the forehead, middle of the head, over

left side of the neck, back side of the head, abrasion over right cheek, left side

forehead, right elbow joint, small cut injury on left forearm, fracture over middle

of the head (hairline fracture) and opined that the death was due to cardio-

respiratory failure, shock and haemorrhage, injuries ante-mortem in nature and

the injuries(individually or collectively) are sufficient to cause death in ordinary

course of nature. So, the number and nature of the injuries on the vital parts of

the body suggest that the intention was clearly to cause death. Therefore, there

was no impropriety on the part of the learned Court below to pass the order of

conviction and sentence under Sectionsection 302 IPC against the appellant.

After scrutinizing 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 by the learned Trial Court.

We, therefore, dismiss the appeal and affirm the conviction and sentence

imposed on the appellant.

A copy of this order along with the LCR may be send down to the learned

Trial Court forthwith.

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.)