Bijay Adhikari v. The State of West Bengal and another

with the appellant. The appellant firstly accepted and represented that he would inform the same to his family members about the proposal of marriage. The complainant proposed to get the marriage registered initially but the appellant represented that he would first solemnize by way of social marriage after sometime. The complainant thereafter learnt that the family members of the appellant collectively decided to break up 3 such relationship and to settle the appellant’s marriage somewhere else. After having such knowledge the complainant restrained his daughter for associating with the appellant. However, both of them continued their relationship secretly. On 16.08.2015 at night the appellant took a SIM Card from the daughter of the complainant which had number [REDACTED]. The appellant represented to his daughter that his SIM Card was damaged and in order to keep contact with her he would require the SIM Card.

On the same date at about 9.47 p.m. the appellant rang up from the said phone to his daughter and when the complainant’s daughter came outside his house the appellant with an intention to kill his daughter chopped her severely with a sharp weapon on both side of his daughter’s throat. His daughter instantly fell down on the ground in bleeding condition and started screaming. Hearing her scream, the complainant along with his family members rushed to the place of occurrence and found that there was blood stained knife in the appellant’s hand and his daughter was lying on the ground in bleeding condition. The appellant on seeing the complainant hurriedly fled away. The complainant admitted his daughter at Jalpaiguri Sadar Hospital for treatment, she was in a critical condition and was undergoing treatment. The complainant alleged that the accused/appellant Bijay Adhikari acted at the instigation of the other accused persons for the reason that after 4 killing his daughter he could marry elsewhere.

He, therefore, requested the police authorities to take steps. The investigating officer on conclusion of investigation submitted charge-sheet before the learned CJM, Jalpaiguri and the case after being committed to the court of sessions finally was assigned to the learned Additional Sessions Judge, 1st Court, Jalpaiguri who after hearing all the parties was pleased to frame charges under Sections 120B/307 of the Indian Penal Code. The records of the case reflect that the prosecution in order to prove its case relied upon nine witnesses which included PW 1, Bidyut Biswas, father of the victim; PW 2, Anuradha Biswas, mother of the victim; PW 3, victim; PW 4, Bishnu Biswas, a neighbour of the victim; PW 5, Kalsang Lhamo Sherpa, Sub-Inspector of Police attached to Women Police Station; PW 6 Dr. Tapan Kr. Maity who treated PW 3 on

17.08.2015; PW 7 Subal Ch. Sarkar, the first investigating officer of the case; PW 8 Smarajit Roy, Judicial Magistrate, who recorded the statement of the victim; PW 9, the second investigating officer of the case. The prosecution in order to prove its case also relied upon number of documents which included the written complaint (Ext.1), the statement of the victim/PW 3 under Section 164 of the Code of Criminal Procedure (Ext.2), Formal FIR (Ext.3), injury report (Ext.4), rough sketch 5 map with index marked as (Ext.6), discharge certificate marked as (Ext.7), the copy of the requisition dated 20.08.2015 marked as (Ext.8). The prosecution case mainly hinges on the version of PW 3 who happens to be the injured witness and corroboration of PW 1 and 2 who are parents of the injured witness. PW-3 Bisakha Biswas in her evidence before the court stated that she had an affair with the accused/appellant and informed the same to her parents.

Her parents accepted such marriage proposal and informed the guardian of the appellant to which they agreed and expressed the intention of solemnizing such marriage in the month of Baisakh. One of the SIM cards of the witness was lying with the accused and he rang her from the said SIM card on 16.08.2015 at about 9.30 p.m. and asked her to come out as he intended to gift her something. When she went out on receiving such phone call, she had an initial conversation for about 5 to 6 minutes and thereafter represented to her during such conversation to turn around for the purposes of the gift. Thereafter, the accused pressed her mouth with his left hand and struck her with a knife at both sides of her collar bone. She sustained severe bleeding injury on either side of her throat. She identified the accused person. She thereafter raised alarm when her father rushed out from their home and on seeing her father, accused Bijay fled away.

She was taken to hospital and for about 12 days, she was treated over there. She narrated the incident to the 6 doctor. She was forwarded to the court by police after being discharged from hospital. She narrated the incident to a learned Magistrate who reduced the same into writing wherein she signed and identified such document along with the signatures which was marked as Exhibit-2 series. So far as the evidence of PW-1 and PW-2 are concerned i.e. the parents of PW-3, the same is corroborated by them so far as the incident relating to relationship and marriage is concerned. PW-4 being a neighbour has not seen the incident or any injury but had taken the victim to the hospital. PW-5 was the investigating officer who was initially endorsed the investigation when he registered the case in his own handwriting and as such identified the formal FIR and the signatures therein. PW-6 happens to be the Doctor/ENT surgeon and he stated that he treated Bisakha Biswas PW-3 who was admitted having sharp cut lateral injury on both sides of the neck.

According to the doctor, the nature of injury was simple and the injury on the right side was 1” X 1” X 1” and on the left side 3” X 1” X 1”. Doctor also stated that he found that the skin was cut and muscles and vessels on either side were also affected. He identified the injury report which was admitted in evidence. PW-7 happens to be one of the investigating officers who prepared the rough sketch map with index and recorded the statement of some 7 material witnesses. The witness also forwarded the victim to the learned Magistrate for her statement being recorded under Section 164 of the Code of Criminal Procedure. PW-8 is the learned Magistrate who recorded the statement and issued a certificate at the bottom of the statement. PW-9 is the investigating officer who submitted charge-sheet in connection with the instant case. I have considered the submission of the learned advocate for the appellant who initially emphasised on the issue relating to the incident and as to whether the same at all took place.

Learned Advocate drew the attention of the court to the factum of the name of the present appellant never being divulged and was narrated by the victim for the first time in court. Learned advocate has also emphasized on the series of incidents which have been referred by the witnesses and lack of corroboration in the testimony of the prosecution witnesses which according to him failed to prove the case beyond any reasonable doubt, far less that the prosecution has been able to prove the case to warrant the conviction. In fact it was stressed that the medical documents itself reflect that the injury is simple and the police authorities purposely has incorporated Section 307 of the Indian Penal Code without assessing whether there was at all any intention on the part of the appellant to terminate the life of the victim PW-3. 8 Mr. Sarkar, learned advocate appearing for the State has drawn the attention of the court to the statements of the different witnesses and submitted that there is a ring of truth attached to the statement of all the witnesses particularly with regard to the relationship, the injuries, the subsequent snapping of ties and additionally, the defence having failed to make out any case from the inception for false implication of the accused.

It has been further contended on behalf of the State that both the victim and her father who immediately reached the place of occurrence have expressed the conduct of the accused/appellant who had every intention to kill the victim. According to the learned advocate for the State, the motive behind the incident is clearly established in addition to the fact that a post occurrence witness being present has seen the accused with blood-stained knife and the victim who fell on the ground after sustaining grievous injury. I have taken into account the version of the appellant as well as that of the State. From the chronology of event which has taken place, it reflects incident happened on 16.08.2015 at night approximately between 9.30 p.m. and 10.30 p.m. The records of the case reflect that the police authorities for the first time were informed regarding the incident at about 6.35 pm on 17th of August, 2015.

The medical report/exbt. 4 reflects that the 9 victim/P.W.3 was treated on 17th of August, 2015 and, although the said document do not reflect any time period but the accompaniment states that she had been to the hospital at about 10.55 am. Having considered that the treatment commenced almost after 12 hours of the incident and the factum that the opinion of the doctor is that the nature of the injury is very simple, I am unable to accept the findings of guilt so far as the offence under Section 307 of the IPC is concerned. However, having regard to the factum that there were injuries and a consistent version appearing in the evidence which, in cross- examination, could not be diluted and that a motive existed, particularly which relates to an initial relationship between the victim and the appellant, primary decision of both the families for marital tie-up and subsequently break-up of the marital tie-up.

To that extent, the attack on the victim having taken place on 16th of August, 2015 under no circumstances can be ruled out. Having regard to the settled proposition of law particularly with the evidential value and/or testimony of an injured witness as has been settled by the Hon’ble Supreme Court in Abdul Sayeed vs. State of M.P. reported in (2010) 10 SCC 259, the relevant paragraphs of which are set out as follows: 10 “28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order falsely implicate someone. “Convincing evidence is required to discredit an injured witness.” [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC 2593] , Malkhan Singh v. State of