- (1.) This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 6th Court, Alipore in Sessions Trial No.10(8) of 1995 sentencing thereby the appellant to suffer R.I. for life and to pay fine of Rs.1,000/- in default to suffer R.I. for six months under Section 302 I. P.C.
(2.) The prosecution case, in short, is that on 6.2.1988 at about 10.30 p.m. while the informant and his daughter Bouni Bibi were having gossip after dinner, then suddenly the informant's son-in-law Apchar Ali Molla struck informant's daughter on the neck with a chopper. When the informant tried to resist, the accused was about to strike him as well and while fleeing away the accused stated that the informant would not have to send his daughter to the house of the accused anymore. THE daughter of the informant died instantaneously. It has been alleged in the FIR that there was ill-relation between the informant's daughter and the accused for quite sometime past. For this reason the informant's daughter stayed in his house for the last fifteen days prior to the incident. Informant's daughter was not willing to go to her matrimonial home. Prior to the date of incident the accused came to the house of the informant in the evening on two successive days and quarrelled with the daughter of the informant. But, on the date of incident i.e. 6.2.1988 at night he suddenly came and caused her death. After the receipt of the complaint, the Bhangore P. S. Case No.3 dated 6.2.1988 was started. After completion of investigation the charge-sheet was submitted. THE charge was framed under Section 302 I. P.C. to which the accused pleaded not guilty and claimed to be tried. Mr. J. N. Chatterjee appearing on behalf of the appellant submits that P.W.1 is the only eyewitness of this case and the evidence of P.W.1 suffers from serious inconsistencies and, as such, his testimony is not worthy of credence. Mr. Chatterjee submits that P.W.1 has stated in cross- examination that on the night of incident he went outside for doing manual work and for this reason it was not possible for him to say the exact time when the accused came to his house. Mr. Chatterjee further submits that P.W. 1 has stated in cross-examination that he saw his daughter lying on the ground and blood fell on the ground and he could not say the name of the person Who came to his house on that night after the incident. Mr. Chatterjee contends that P.W.1 could not say the reason for assaulting his daughter by the accused. Mr. Chatterjee contends that in the inquest report a different version has been noted regarding the circumstances leading to the alleged occurrence. Mr. Chatterjee thus contends that the prosecution case suffers from incoherence. Mr. Chatterjee contends that P.W.1 did not raise shout at the time of alleged infliction of assault. Mr. Chatterjee contends that the offending weapon was not seized by the I.O. and the accused was not arrested, but, he surrendered in the Court. Mr. Chatterjee contends that the version of the prosecution case as setforth in the FIR was an afterthought. Mr. Chatterjee contends that the charge- sheet was filed after three years and under Section 167(5)Cr.P.C. the learned Court below ought not to have proceeded with the trial. Mr. Chatterjee has referred to the decisions [Bablu Oraon v. State of West Bengal, 2008 2 CalHN 1024]; [Noyel Barla v. State of West Bengal, 2006 2 CalHN 442]; [Shankar Diwal Wadu v. State of Maharashtra, 2007 2 Crimes(SC) 395]; [Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors, 2001 SCC(Cri) 1070]; [Gulzar v. State of W.P, 2007 1 SCC(Cri) 123]; [Trimbak v. State of Maharashtra, 2008 2 Crimes(SC) 19]; [Periyasami v. State of Madras, 1967 AIR(SC) 1027].
(3.) MR. Ganguly appearing on behalf of the State submits that there was discord in the matrimonial life of accused and the informant's daughter and the FIR was lodged by the father of the deceased at the earliest point of time. MR. Ganguly contends that there was no scope of fabrication. MR. Ganguly submits that P.W.1 has stated as to the infliction of assault by the accused. It is contended that in the inquest report also there was mention of infliction of assault by the accused. It is contended that there is no evidence to show that prior to the date of incident the relation between the deceased and the accused was cordial. It is submitted that there is no evidence to show that the husband ever came to take back his wife. MR. Ganguly contends that so far as the evidence of hostile witness is concerned, it would appear from his evidence before being declared hostile that the name of the accused as assailant was stated. MR. Ganguly contends that accused was absconding and he surrendered in Court seven months after the incident. MR. Ganguly submits that the injury was inflicted on the neck which was the vital part of the body and it was sufficient to cause death. MR. Ganguly contends that when there is eyewitness, the question of motive cannot arise. MR. Ganguly contends that as per evidence of P.W. 1 the accused assaulted the daughter of the informant 2/3 times and this finds corroboration from the medical evidence. MR. Ganguly has referred to and cited the decisions in [Gurmukh Singh v. State of Haryana, 2010 2 SCC(Cri) 711; Raj Kumar v. State of Maharashtra, 2010 2 SCC(CRI) 538]. The learned trial Judge while passing the judgment observed that there was no discrepancy at all between the statement made by the P.W.1 and the statement made by the doctor as to the injuries and that the P.W.1 deposed in a natural way. The learned Judge further observed that from the evidence on record it was clear that it was the accused who actually caused the death of Bouni Bibi.;