TRILOCHAN MAITY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgement and order dated 9.12.1987 passed by the learned Sessions Judge, Midnapore in Sessions Trial Case No.XIV of April, 1987 convicting the appellant for commission of offence punishable under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act and sentencing him to suffer R.I. for two years for the offence punishable under Section 307 of the Indian Penal Code. No separate sentence being awarded for the conviction under Section 27 of the Arms Act. Prosecution case as levelled against the appellant is to the effect that on 2.5.1985, the appellant had opened fire from his gun aiming at the victim with the intention of murdering the victim. On the basis of the written complaint lodged by Swapan Kumar Maity, the son of the victim, Charubala Maity, F.I.R. being Mohanpur Police Station Case No.1 dated 2.5.1985 under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act was registered for investigation. In the course of investigation sanction was obtained and charge sheet was filed against the appellant. The case being a sessions tribal one, was committed to the Court of Sessions, Midnapore. Charge was framed under Section 307 of the Indian Penal Code and under Section 27 of the Arms Act. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined as many as 14 witnesses.

(2.) The defence of the appellant was one of innocence and false implication. In conclusion of trial, the appellate court by the impugned judgement and order dated 9.12.1987 conviction and sentenced the appellant, as aforesaid. Learned Counsel appearing for the appellant submits that there is enmity by and between the appellant and the prosecution witnesses. There is no direct evidence that the appellant fired at the victim and accordingly, the prosecution case cannot be said to have been proved beyond reasonable doubt. The evidence of P.W.13 who is an interested witness ought not to have been relied upon at all. The bullets were not recovered in the instant case and, therefore, it cannot be said with certainty that the appellant had aimed at the victim. He accordingly prayed for acquittal.

(3.) Accordingly, the appeal is liable to be dismissed. P.W.1 deposed that two years ago on 19th Baisakh at about 3.30 P.M. he heard a sound of firing from a gun. The sound came from the side of the house of the appellant which was towards the South of their house. The appellant is the brother-in-law of the victim. He went to the place of occurrence and found that the victim who is the wife of Kamal Lochan Maity was lying senseless on the floor of the kitchen. He also found that the appellant was loitering on his verandah with a gun in his hand. He heard him uttering abuses and threatened that he would murder them, if anyone came at the spot. He found that the son and daughter of Kamal Lochan were sitting by the side of their mother and weeping. Her daughter Jharna told him that her uncle had shot at her mother when the victim recovered her sense she stated that was serving rice to her son when the victim shot was fired. Immediately on hearing the sound of shot, she fell down, Jharna informed that Trilochan had fired from his gun standing on the verandah which was to the west of the kitchen and there was a broken bamboo fencing in between. The kitchen had two doors, one to the east and one to the west and in the same line. At the time of the incident Kamal Lochan and his son Swapan Maity were away in the market. He asked Jharna to go to the market and report the incident to her father and brother. He along with others went to the police station in the evening on that date. Swapan and his mother lodged a general diary. He knew Trilochan for last 3/4 years. He was an ill-tempered man and was a teacher in a primary school. He did not see him to go to the school. He had driven away his wife, daughter and son. He used to quarrel with the victim who was his sister-in-law and alleged that the victim would administer poison to his son and was advising his wife against him. Police made a seizure of the gun from the house of Trilochan. He signed on the seizure list, Ext.1. P.W.2, Swapan Maity, is the son of the victim and the defacto complainant in the instant case. He deposed that on 19th Baisakh at 3.30 P.M., he was in the market along with his father. Jharna, his sister informed the incident to him. The appellant i.e. his uncle had opened fire from his gun at his mother as he suspected that she would administer poison to his son and was giving ill advice to his wife. His uncle used to pick up quarrel for nothing. He submitted a written complaint, which was scribed by Pankaj Das at the police station. He signed on the complaint, Ext.2. Police came to their house and visited the spot. P.W.3, Paritosh Das, is a neighbor. He deposed that he was in his house and heard the sound of firing from a gun from the house of Trilochan Maity. He rushed to the spot and found Charubala Maity, the victim lying unconscious in her kitchen. He found that Jharna, her daughter was weeping. He also found smell of gunpowder in the kitchen. He found the appellant walking with a gun and saying that he would kill a number of persons. They sprinkled water on Charubala Maity and she came back to senses. Jharna told him that there was a quarrel since morning and her mother was abused with filthy languages and when she was serving rice, she was shot at and as the doors on two sides of the kitchen were open and facing each other, the shot entered through one door and went through the other. P.W.4, Kamal Lochan Maity, P.W.6, Smt. Sushila Das, P.W.7, Sakuntala Das and P.W.8, Basanti Maity are the other neighbourers who have corroborated the versions of P.Ws.1 and 3. P.W.5 is the victim in the instant case. She deposed that Trilochan was her Devar. He never behaved properly and abused her in filthy languages suspecting that she was poisoning her son and giving ill advice to his wife. He used to threaten her by saying that he would shoot her down. He behaved rudely with others. On 19th Baisakh, he started abusing her since morning. She had been busy in husking paddy and thereafter cooking. She served rice to her son Tapan and had bent down to give a spoonful rice, when she heard a big bang and something passed over her back and she became senseless. Before serving rice, she had seen Trilochan, the appellant, standing with a gun in his courtyard on the west of her kitchen. Her kitchen had two doors, on the east and on the west.