CRIMINAL APPELLATE JURISDICTION v. The State of West Bengal

suffered from serious infirmities. 3 iv. PW-8 being the younger sister of the victim was an interested witness whose evidence was unreliable. v. The conviction and sentence of the appellant was mainly based on testimony of PW-2, PW-3, PW-4, PW-6, PW-7 and PW-9 whose evidence was based on hearsay. vi. PW-5, the doctor who treated the victim deposed that the victim did not disclose to have been shot by the appellant.

7. The Learned Amicus Curiae representing the appellant further submitted that:- i. There was no independent eye witness of the incident. The only eye witness i.e., PW-11, the sister of the victim had stated in her cross- examination that there was no altercation or threatening by the appellant to the victim. She further stated that she had noticed the pistol of the appellant when he was offering Piyaji to them but she did not draw her sister’s attention towards it. ii. The evidence of PW-12 who was the Investigating Officer of the case in his cross-examination revealed no blood stained apparels were seized by him. He further stated that there was no blood stain at the place of occurrence. The officer failed to seize the gun that was used. iii. The evidence of PW-5 i.e., the doctor under whom the victim was admitted, stated that from C.T. Scan he found a bullet which he removed. The bullet was not recovered thereafter. He had stated in his cross-examination that “fracture of Spinous process of 6th dorsal 4 vertebra may be caused by sudden and forceful impact with hard and blunt substance.” iv. The case was mainly based on hearsay evidences. Other than the victim and her sister no independent witness in the whole village found the appellant running away after the incident. PW-7 had seen the appellant entering the house of the victim. He did not however see the appellant after the incident.

8. The Learned Advocate representing the State submitted that the prosecution was able to prove its case based on corroborative evidence of the prosecution witnesses supported by the medical evidence and the appeal shall be dismissed.

9. A circumspection of the prosecution witnesses revealed as follows:- i. PW-1 deposed on 25.12.1999 he was posted as S.I. of Police, Kaliachak P.S. He also drew up formal F.I.R., on the basis of the written complaint in absence of O.C., which were marked as Exbt.-1 and Exbt.-2. ii. PW-2 deposed that the victim was his daughter and the appellant was his son-in-law. The incident took place on 25.12.99 in the evening at about 06:00 p.m. He and his wife went to hat of Madhughat for selling fried rice. On his return, he learnt from his daughter that the appellant shot her by firearm. The appellant offered her “Piyaji” which she refused. Thereafter, his son-in-law i.e., the appellant shot his daughter by a firearm on her back side and fled. Thereafter, they 5 shifted his daughter to the Malda District Hospital for her treatment and informed the matter to the local P.S. iii. PW-3 deposed to have noticed the victim girl lying with gunshot injury on her back. The victim told him that her husband i.e., the appellant fired on her back by firearm. Thereafter, they shifted the victim girl to the Malda district hospital. There was a dispute between the appellant and the victim regarding their family affairs and villagers tried to reconcile the dispute, yielded no result. Thereafter, the victim girl filed a suit against the appellant. iv. PW-3 in his cross-examination stated he was examined by the I.O. He stated to the police that all on a sudden hearing clamour from the house of Gunadhar Mondal, he rushed to his house. He stated to the police that the victim was lying near the Shibmandir. v. PW-4 deposed that the victim girl was his cousin sister. On 25.12.99 when he was returning to his home from market, he heard hue and cry from Shibmandir of Madhughat. He asked the victim, who fired upon her by firearm. The victim girl told that her husband fired upon her by firearm on her back. Then, they took her in a taxi and admitted her in the Malda District Hospital. There was a dispute between the appellant and the victim since their marriage. The appellant tried to kill the victim. Then, the victim filed a suit for maintenance against the appellant. vi. PW-4 in his cross-examination stated that he was examined by the I.O. vii. PW-5 deposed that on 25.12.99 he was attached to Malda district 6 hospital as a medical officer (surgeon) and on that day a patient namely Sabitri Mondal was admitted under him to the emergency in the female surgical ward with a provisional diagnosis of gun-shot injury. He gave her supportive treatment and advised for X-ray examination of the chest and also C.T. Scan of the chest. On examination of the C.T. Scan he found a bullet inside the back part of trunk through spinous process of 6th dorsal vertebra with fracture. He made a sketch here of the injury sites of the body of the patient which reveal that bullet entered from the backside of the body at the midline of the trunk at the level of 6. He removed the bullet from the body of the patient in the operation theatre of Malda district hospital and forwarded the bullet, thus removed, for onward transmission to the appropriate authority through superintendent district hospital, malda. All the documents were marked as Exbt.-3, Exbt.-5/5(a), Exbt.-6, Exbt.-7, Exbt.-8 and Exbt.-9. viii. During his cross-examination PW-5 stated that the victim was admitted in the hospital at 06:40 p.m. On 27.12.99 bullet was removed from the body of the victim. There was no note in bed head ticket of the victim as to why bullet was removed two days after the admission of the patient. It was not possible for him to say whether the weapon used was of high velocity or low velocity. 6th Dorsal vertebra means sixth segment of the thoracic part of vertebral column. Fracture of spinous process of 6th may be caused by sudden 7 and forceful impact with hard and blunt substance. There was no mention in his bed-head ticket as to who did it occurred and there was also not in his bed-head ticket about the statement of the victim. ix. PW-6 and PW-7 reiterated the prosecution case in its entirety. x. During her cross-examination PW-7 deposed that the appellant fired the victim by a pistol in order to get rid of maintenance case. xi. PW-8 deposed on 25.12.99 at the evening the appellant i.e., her husband came to house with ‘Piyaji’ and asked him to eat the same. She told him that she would eat ‘Piyaji’ later on. Then her husband keeping the ‘Piyaji’, went towards the courtyard of the house. She was cutting fishes with her sister sitting by her side. Suddenly her husband returned and fired a shot at her back from a firearm and fled. Her husband was not looking after her. As such, she had filed a case for maintenance against him. She was awarded maintenance by the court before the date of incident. Receiving bullet injury she fell on the floor. Local persons gathered at the place of occurrence immediately after the incident. They shifted her to Malda District Sadar Hospital and got her admitted there. The bullet was extracted from her body at the hospital. Her husband wanted to kill her on the date of incident. xii. During cross-examination PW-8 deposed that her matrimonial home was in village Sahabajpur. Her paternal house was in village Madhughat. The village of her father would be 20 miles away from the village of her husband. She left her matrimonial home about 3½ years 8 ago from that day. Thereafter she never returned to her matrimonial home. She had been awarded maintenance at the rate of Rs.1000/- per month by the Court. The incident took place on her paternal house. She was examined by the Investigating Officer. xiii. PW-9 deposed that he knew PW-8. On the relevant day, he came to a nearby bamboo clump to attend nature’s call and thereafter, he went to a nearby hut. He subsequently came to learn the victim was shot by her husband. Going to the house of Gunadhar Mondal he found the victim girl in injured condition due for receiving bullet injury in front of the entrance door of the house. He also found scales of fishes lying scattered at that place. He also found one pair of plastic sandals at that place. He along with others transmitted the victim to Malda Sadar Hospital. The victim told that her husband had shot at her from a fire-gun and fled. xiv. During his cross-examination PW-9 stated the victim’s wearing apparels were stained with blood, but he did not notice whether or not the P.O. was also stained with blood. Victim was lying injured about 4/5 cubits away from the place where scales of fish and plastic sandals were lying scattered. xv. PW-10 deposed that on 25.12.99 he was posted at Kaliachak P.S. as S.I. of police. He endorsed Kaliachak P.S. Case No.343 of 99 dated

25.12.99 to A.S.I. N.C. Das for investigation. At that time A.S.I. N.C. Das was vested with the power to investigate by the competent authority. During his cross-examination stated that A.S.I. N.C. Das 9 was vested with the power to investigate by the S.P., Malda. There is no order as to costs. xvi. PW-11 deposed that she is the sister of the victim i.e., PW-8. On the relevant date, the victim was cutting fish sitting on the Varandah of their Parental house. She was sitting by the side of the victim. At that time, the appellant came there and offered piyaji to the victim but the victim refused it. On the relevant time, the appellant went on the back side of the victim and shot at the back of the victim from a fire arm. Thereafter, he fled. xvii. During her cross-examination PW-11 deposed that police came to their house and examined her. The I.O. recorded her statement in her presence. xviii. PW-12 deposed that on 25.12.99 he was posted at Kaliachak P.S. as A.S.I. of Police. On that day, that case was endorsed to him by the O.C., Kaliachak P.S. for investigation. He visited the P.O., examined witnesses and recorded their statements under Section 161 Cr.P.C. He prepared a rough sketch map of the P.O. with index which was marked as Exbt.-10. Thereafter, he had been to Malda Sadar Hospital. He examined the injured at the hospital and recorded her statement under Section 161 Cr.P.C. He held raid at the house of the appellant but he was found absconding. He seized the bed head ticket and medical papers of the injured from the hospital under a seizure list in presence of witnesses which was marked as Exbt.-11. After 10 completion of investigation he submitted charge-sheet against the appellant showing him absconder. xix. During his cross-examination PW-12 deposed that he was vested with the power to investigate in cognizable cases by the then S.P., Malda. There was no blood stain at the P.O. He visited the P.O., on the date of incident at 22:45 hours for the first time. He did not seized scales of fishes from the P.O.

10. The Hon’ble Apex Court in the case of State of Rajasthan v. Major Singh1 observed the following:- “4. …In our view, considering the medical evidence which corroborates the prosecution version, particularly, of the injured witness, PW 1 Jeet Kaur, there is no reason to disbelieve the evidence of the aforesaid two witnesses….”

11. The Hon’ble Supreme Court in the case of Malkiat Singh v. State of Punjab2 held the following:- “6. …On the contrary, we find that the evidence of Mit Singh gets ample corroboration from the fact that within almost an hour of the incident he lodged the FIR wherein he not only detailed the prosecution case as to how Darbara Singh and Uttam Singh were assaulted by the appellant but also stated that the appellant had sustained minor injuries at the hands of Uttam Singh when he tried to rescue Darbara Singh. The medical evidence corroborates the ocular version of PWs 4 and 5 and recovery of the kassi pursuant to the statement of the appellant which was found to contain human blood, when examined by the Forensic Science Laboratory, also lends credence to the prosecution story.”