BIHARI MAJHI @ HANSDA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is against a judgment of conviction and sentence of the appellant, Bihari Majhi on the allegation of fratricide. The Additional Sessions Judge, Fast Track Court No. 1, Purulia found him guilty for causing homicidal death of Hazari Majhi, his own brother on 10th Feb. 2004. In the judgment delivered on 13th July, 2004 in Sessions Case No. 111 of 2004 in connection with Sessions Trial No. 31 of 2004 the appellant has been sentenced to suffer rigorous imprisonment for life combined with fine of Rs.1,000/, in default of payment of which the Trial Court has directed further one month term of simple imprisonment. The date of occurrence of the incident is 10th Feb. 2004 and the case was started on that date itself on the basis of a written complaint made by the widow of the deceased, Ramani Majhi. She has also deposed as P.W. 1 in the trial. Ram Narayan Hati, who was the Officer-in-charge of Arsha police station at the material point of time has been examined as P.W. 13. The incident had occurred within the territorial area of that police station. In his deposition, the P.W. 13 has stated that he had received the written complaint of Ramani Majhi (P.W. 1) scribed by on Gour Kumar (P.W. 5) on 10th Feb. 2014.

(2.) In her complaint, the P.W. 1 stated that while her husband was on his way to Panchkiri village for the purpose of winnowing paddy, the appellant was hiding behind the bush of Palash tree, and the place of occurrence has been described as the field of Rathtar. Her complaint is that the accused/appellant had come out and assaulted the deceased with knife, at that location. There were other persons ahead of him, as per the complaint, who on hearing his screams returned and found that Hazari was lying dead bleeding and Bihari the appellant was fleeing away. In course of trial, three individuals, Musni Majhi (P.W. 2), Biswanath Majhi (P.W. 3) and Behari Murmu (P.W. 4) have deposed as eye-witnesses to this act of assault. From the formal F.I.R., which has been made Exhibit '7', we find that the time of receiving the information at the police station is 11.45 hours on the same date. In his evidence, the Investigating Officer, Balaram Goswami (P.W. 14) has stated that he had started investigation at 11.45 hours and he had visited the place of occurrence and also raided the house of the appellant. At the place of occurrence, he had prepared the sketch map thereof and held inquest from 13.35 to 15.35 hours. In his cross-examination, he has deposed that he had left the place of occurrence at 16.30 hours. The prosecution case is that the appellant, while fleeing had thrown his 'lungi' and 'katha' on Hazari (deceased). This has transpired from the depositions of P.W. 3 and P.W. 4. Two seizure lists were made at the place of occurrence, which have been made Exhibits '3' and '4'. Exhibit '3' relates to seizure of a bloodstained katha, which has been described as something like a stitched sheet (chhadore) and a white terricot lungi, also bloodstained. Exhibit '4' relates to seizure of bloodstained and controlled earth and wearing apparels, three in number, all bloodstained with piercing knife holes. These wearing apparels, as recorded in the seizure list were of the deceased, as per the statements of the witnesses to the seizure. The third seizure list also includes wearing apparels with which the deceased was clothed. The body of the deceased was taken to the Purulia Sadar Hospital by a constable attached with Arsha police station, Narbahadur Rai (P.W. 11) for post-mortem and these clothes were brought back by him to the police station. The third seizure list (Exhibit 6/1) was prepared there. This seizure list was proved by one Shankar Chandra Dana (P.W. 10), an assistant sub-inspector of police posted at the same police station.

(3.) As per evidence of the Investigating Officer (P.W. 14), the seized wearing apparels and other bloodstained articles were sent to the Forensic Science Laboratory (F.S.L) for chemical examination. At the time of trial, however, no report from the F.S.L. was available. The prosecution stand is that they did not receive the report. The post-mortem report refers to multiple scattered incised wounds and abrasions. The autopsy surgeon, Dr. Ajit Kumar Hajari (P.W. 15) opined in the post-mortem report the cause of death to be due to severe shock and hemorrhage as a result of the injuries. Such injuries have been referred to as ante-mortem and homicidal in nature. In the said report, however, against the column "stomach and its contents", the comment "Empty and pale" was endorsed. On this point, certain arguments were advanced on behalf of the appellant, with which we shall deal with later in this judgment. The deposition of the autopsy surgeon was consistent with his opinion contained in the post-mortem report. The prosecution had primarily relied on the evidence of the P.W. 2, P.W. 3 and P.W. 4, who deposed as eyewitnesses. The other witnesses who were examined before the learned First Court were Gour Kumar (P.W. 5), as the scribe of the complaint of the P.W. 1, one Adalat Swarnakar (P.W. 6) as the inquest witness, Maheswar Mandi (P.W. 7) a witness to the seizure in respect of the seizure list marked Exhibit '4', Babu Dhan Majhi (P.W. 8), also a witness to the inquest as also two seizure lists (Exhibits '3' and '4') which were made at the place of occurrence and Surendra Mandi (P.W. 9). The deposition of Surendra Mandi is on hearsay, and not of much relevance so far this appeal is concerned.