SANTOSH ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Criminal Appeal is directed against the orders of conviction and sentence passed by the Additional Sessions Judge, 1st Court, Krishnanagar, Nadia in Sessions Trial No. 1/04/1986 (Sessions Case No. 2 9/11/1984). The learned Judge convicted the appellant accused Santosh Roy under S. 302, IPC and sentenced him to imprisonment for life. The deceased China Barman was the sister of the appellant. P. W. 1 Nani Barman who lodged the FIR at the P. S. is the second husband of the deceased China Barman. The prosecution case is that on the 10th October, 1983 at about 9-30 a.m. when China was at the tubewell near their house for drawing water, she was suddenly attacked there by the accused with a Dao (a sharp cutting weapon) and the accused delivered several strokes with that weapon on different parts of the body of China including vital parts like neck and then he fled away. China died on the spot as a result of the injuries inflicted on her by the assailant. At that time her husband Nani Barman and his other male relations were working at the Beel at some distance and some of the women-folk of their house rushed there and reported the incident and then they came to the spot and saw that China was lying dead by the side of the tubewell with multiple injuries. Nani Barman then went to the P. S. and reported the incident there at about 1-05 p.m. on that very day and the police recorded the FIR and started the investigation. The prosecution examined as many as 12 witnesses. In the FIR it is stated by the informant Nani Barman that China married him in Jaistha of the previous year by registration without the permission of her parents and brothers and out of that grudge the accused Santosh, brother of China murdered her thereby removing her from the informant. The evidence of PW-1 Nani Barman, the informant, is that on the date of occurrence at about 9-00 or 10-00 a.m. while he along with his brother PW-4 Gopal Barman and his sister's husband PW-3 Dayal Barman was washing jute in the Nalgari Beel his sister Phanibala (P. W. 2) and Bulbuli (P.W. 5) who is the daughter of Gopal came and reported that Santosh Roy struck China with Deo and cut her when she had gone to the tubewell for bringing water, and on hearing this they came home and saw the dead body of China lying near the tubewell. From his cross-examination we get that he is second husband of China and China is also his second wife. We further get that China had a daughter by her first husband and the age of that daughter was 16/ 17 years when China left her parents' house and married the informant. It appears that China eloped with him and they went to 24 Parganas and lived there for some time. Their Marriage Registration certificate has been marked as exhibit-6. In his cross-examination the informant says that his villagers knew about his love with China. He says that he belongs to the community of Sardar and China belongs to Mahishya, which is a different caste. He does not remember the date, month and year when he left the village with China, nor does he remember the date of their return to the village. It may be mentioned here that the house of the accused, that is, the house of China's parents is also situated in the same village. PW-3 Dayal Barman and PW-4 Gopal Barman also corroborate that on the date of occurrence while they were working at the Beel, Phanibala and Bulbuli went there and reported that Santosh had cut China and then they came to the place of occurrence.

(2.) The prosecution witnesses who claim to have seen the occurrence are PW-2 Phanibala (the sister of Nani Barman), PW-5 Bulbuli Barman and her younger sister PW-6 Kalyani Barman. PW-2 Phanibala's evidence about the occurrence is that her Bhaiji (brother's daughter) Kalyani called Bulbuli and stated that Kakima (meaning Chaina) had been cut by Santosh. According to her evidence at that time she was in her house and on hearing what Kalyani said she called her mother and ran to the spot. She claims to have seen Santosh deliver one stroke with Dao on China and ran away. She says that she and Bulbuli went to Nalgari Beel and reported to Nani, Gopal and Dayal that Santosh had cut China near the tubewell and fled away. In her cross-examination she of course says that she did not tell the police that she saw Santosh deliver one stroke and run away. It has been argued on behalf of the appellant that since she did not tell the police that she saw Santosh deliver one stroke and run away, her evidence to that effect at the trial should not be believed and she should not be considered to be an eye witness to the occurrence.

(3.) PW-5 Bulbuli Barman says that the occurrence took place at about 9-00 a.m. and she was then in their house. She says that her sister Kalyani was standing near the tubewell and Urmila was there and China was also there and was taking water from the tubewell. She then says that she too came near the tubewell and saw Santosh cutting China with a Dao. She further says that they started shouting and on hearing the shouts her pisima Phanibal came. Santosh, she says, was still striking China and after her pisima came Santosh fled away. She also testifies that she along with her pisima went to Nalgari Beel and reported the incident to her father, Gopal and others. In her cross-examination she says that she came to the spot before her pisima and thakuma. She further says in her cross-examination that she saw Santosh give 10 strokes. From the evidence of the I. O. it appears that she did not tell him that Santosh was still striking China when her pisima came. In her cross-examination she confirms Bancharam's presence near the tubewell at the time of occurrence. Bancharam's house, we get it from this witness also, is situated by the side of the tubewell. Much argument has been advanced on behalf of appellant that Bulbuli did not see the occurrence at all and there is inconsistency between the evidence of Bulbuli and Kalyani. It has been submitted that according to the evidence of Kalyani, Bulbuli came on hearing her shout but Bulbuli does not say so. On a scrutiny of the evidence of both these witnesses, we however do not find any inconsistency worth the name in their evidence. The evidence of Bulbuli shows that Kalyani was standing near the tubewell when China was taking water from the tubewell. Bulbuli says in that connection that she too came near the tubewell and saw Santosh cutting China with a Dao. Reading the depositions of these two witnesses together it becomes clear that initially Bulbuli was not there at the tubewell when China and Kalyani were there and she came later. The real picture that emerges from the analysis of their evidence is that Bulbuli came after hearing the shouts of Kalyani and saw that the accused was striking China with a Dao and thereafter her pisima came. The evidence of the post-mortem Doctor, PW-9 shows that the victim China sustained more than ten injuries. The injuries found by the Doctor show that the assault was very brutal and the victim was indiscriminately assaulted by the assailant over different parts of the body including vital parts like neck etc. and the victim made abortive attempts to ward off the strokes, as a result of which her fingers also sustained severe injuries. The nature of the injuries and the attending circumstances leave no doubt that the assault continued for quite sometime in spite of the efforts of resistance made by the victim. It is, therefore, nothing unnatural that on hearing the shout raised by Kalyani at the beginning of the assault, Bulbuli rushed out and saw the remaining part of continuing assault and it is only natural that she also must have raised shouts along with Kalyani and her pisima also rushed to the spot from the house although a bit later. In the circumstances, it is not at all improbable that her pisima had also seen the concluding part of the operation from some distance and also saw the fleeing away of the accused as stated by her. It may also be mentioned here that both Bulbuli and Kalyani have stated in their cross-examination that the accused delivered about ten strokes. It is needless to mention that the witnesses definitely did not mean to say that the number of strokes were exactly ten as nobody in such circumstances could think of counting the actual number of strokes while seeing the occurrence. What they actually meant by saying ten strokes or about ten strokes is that the strokes were quite plenty in number being in the neighbourhood of 10 or so. The post-mortem Doctor's evidence on the point corroborated their evidence very substantially.