KAMAL BAIRAGI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Both the appeals are directed against the judgment and order dated 27th and 28th January, 2014 passed by the learned Additional District and Sessions Judge, 2nd Court, Bongaon, North 24-Paraganas in Sessions Trial No.15(06) of 2003 arising out of Sessions Case No.41 (06) of 2002 convicting the appellants for commission of offence punishable under section 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment for one year has been assailed.

(2.) The prosecution case as alleged against the appellants is to the effect that Susanta Poddar @ Jharu (appellant in CRA 237 of 2014) is the brother-in-law of the victim Kamala Poddar who was allegedly murdered at her residence on 24.6.2000 in the night between 24/25.6.2000. At that time she was sleeping with her daughter Swapna Poddar, P.W.2 and son, Sanatan Poddar, P.W.3. It is alleged in the course of scuffle, Swapna woke up and found Susanta throttling the neck of her mother with one hand while pressing her mouth with another and Kamal Bairagi (appellant in CRA 106 of 2014) pressed her head against the bed. She screamed for help and the miscreants ran away. Her brother also woke up and saw the incident. Both of them witnessed the incident in the light of a lantern. Soon after the incident local villagers and one police officer viz., P.W.9 rushed to the house of the victim and P.W.2 and P.W.3 narrated the incident to them. Some of them went to the residence of appellant Susanta Poddar @ Jharu and informed him of the incident. Jharu, however, refused to come with them. They found two wet check lungis and two vests hanging in the fence of his house. It is alleged on the date of the incident Sudhangshu Poddar, P.W.1, husband of the victim was away from home and had gone to Dankuni to collect medicine for arthritis. He received information of the unfortunate incident at Dankuni and returned home on 25.6.2000. In the meantime, inquest was held over the body of the victim in connection with Gopalnagar Police Station Case No.5 of 2000 dated 25.06.2000. Ten days after the incident, P.W.1 lodged First Information Report against the appellants alleging commission of offence punishable under section 302/34 of the Indian Penal Code. In the course of investigation, the appellants were arrested and charge sheet was filed against them. The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the learned Additional District and Sessions Judge, 2nd Court, Bongaon, North 24-Paraganas for trial and disposal. Charge was framed under section 302/34 of the Indian Penal Code against the appellants. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 27th and 28th January, 2014 convicted and sentenced the appellants, as aforesaid. Hence, the present appeals.

(3.) Mr. Sanyal and Mr. Basu appearing on behalf of the appellants submitted that the prosecution case is riddled with improbabilities and inconsistencies. The conduct of the P.W.1, husband of the victim, is not above suspicion. No evidence has come on record as to the identity of the kabiraj from whom he had gone to collect medicine at Dankuni. No prescription relating to his ailment was produced in Court although he claimed that he could not walk without help. Although P.W.1 deposed he was semiparalytic, he claimed he had travelled on his own in a bicycle and other means of transport to Dankuni to collect medicine. Even after receiving the death news of his wife, he remained silent for ten days before lodging First Information Report. Explanation for such delay is extremely feeble and does not inspire confidence. Evidence of P.W.2 and P.W.3 that they had seen the appellants murdering the victim is highly improbable as such fact is significantly absent even in the belated First Information Report registered by their father, P.W.1. P.W.1 had illicit association with one Minati and it has come from the evidence of P.W.s 3 and 4 that after the death of the victim he married the said lady. It is unclear when the identity of the appellants as the assailants of the victim had been disclosed to local people including police personnel and why no First Information Report was registered against them at the earliest opportunity. It appears such fact was withheld from the Investigating Officer, P.W.14 who was investigating the unnatural death case. Belated disclosure of identity of the appellants from the mouths of the minor children of the victim long after the incident is clearly an afterthought and a concocted story which was subsequently developed to implicate the appellants particularly the appellant no.2 who had inimical relations with his brother, P.W.1 herein.