JUDGMENT
Alok Kumar Basu, J.
1. This appeal has been preferred by Serajul Sk. challenging his order of conviction and sentence under Section 302 of the IPC by the learned Additional District and Sessions Judge, Fast Track Court, Rampurhat in the district of Birbhum in connection with Sessions Trial No. (XI)/January/2003 corresponding to Sessions Case No. 43 of 2001.
2. The prosecution allegation against the appellant was that on 2.6.1998 at about 9 a.m. at village Bhagail under P.S. Murarai in the district of Birbhum, appellant Serajul entering into the house of his wife Margina, killed Margina by throttling and thereafter fled away.
3. Intu, the minor son of Serajul and Margina witnessing his father to kill his mother by throttling and thereafter to flee away, called the neighbouring people and one Abu Ahamed Mondal after getting details of the occurrence from Intu and one Aulia Bibi of the village lodged written complaint at the Murarai P.S. against Serajul for commission of murder of his wife Margina.
4. After receipt of the written complaint, S.I. Uday Banerjee of Murarai P.S. started investigation and in connection with investigation, inquest was held over the deadbody of Margina, arrangement was made for holding postmortem examination over the deadbody and available witnesses were examined. S.I. Banerjee also forwarded Intu and one Karshed Sk. for recording their statement under Section 164(5) of the Cr. PC by the learned Magistrate of the local Court. S.I. Banerjee, after collecting the post-mortem report and on perusal of evidence collected by him during investigation, found a strong prima facie case against the present appellant and he filed chargesheet against the appellant under Section 302 of the IPC for commission of murder of his wife Margina.
5. The learned Additional Sessions Judge of the Fast Track Court, on perusal of police papers and after hearing both the prosecution and the defence, framed charge under Section 302 of the IPC against the present appellant and the appellant pleaded his innocence and claimed for trial. It is pertinent to mention that during cross-examination of prosecution witnesses and also while answering the questions put to him during his examination under Section 313 of the Cr. PC, Serajul not only pleaded his innocence, but, set up his case that P.W. 3 Karshed Sk. may be involved behind the commission of murder of his wife Margina.
6. During trial before the learned Additional Sessions Judge prosecution side produced 16 witnesses in all including Aulia Bibi, Karshed Sk., Intu, the learned Judicial Magistrate, the doctor who conducted post-mortem examination and the Investigating Officer. Prosecution also produced during trial the original complaint, post-mortem report, statements of Karshed and Intu and the seizure lists.
7. The learned Trial Court, having regard to the FIR allegation and on perusal of deposition of Aulia Bibi P.W.2, Karshed Sk. P.W.3 and Intu P.W.10, came to the conclusion that Margina Bibi was the first wife of appellant Serajul and Margina Bibi gave birth to three children including P.W.10 Intu and since the birth of Intu appellant Serajul had left his first wife Margina and married second time and he has been residing at other place with his second wife. The learned Trial Court from the deposition of P.W.2 Aulia Bibi and P.W.3 Karshed Sk. also found that relation of appellant Serajul with Margina was not at all good and, in fact, Serajul often demanded money from Margina and on the date of occurrence Serajul came in the house of one Sahamat which was by the side of house of Margina and hearing this from Margina prior to the occurrence, Aulia Bibi cautioned Margina about appellant Serajul.
8. The learned Additional Sessions Judge, having regard to the evidence of P.W.2 Aulia Bibi, P.W.3 Karshed Sk. and P.W.10 Intu, found no difficulty to support the prosecution case that on the date of occurrence Serajul came in the house of Margina and finding her alone pressed her neck and throttled her to death and Intu son of Margina and Serajul had seen this entire incident and he had also seen Serajul to flee away after killing his mother by jumping over the wall of the house of Margina. The learned Judge found sufficient corroboration regarding the statement of Aulia Bibi and Intu from the deposition of P.W.3 Karshed Sk., P.W.4 Ali Milad Hossain, P.W.5 Eafis Hossain and P.W.6 Mohid Mondal.
9. Apart from the oral testimony of the abovementioned witnesses, the learned Trial Judge also placed his reliance on the statements of Intu and Karshad Sk. as recorded by the learned Judicial Magistrate under Section 164(5) of the Cr. PC.
10. The learned Trial Court, thus, after considering the prosecution evidence and on hearing both the prosecution and defence, found Serajul guilty for commission of murder of Margina and convicted him accordingly.
11. Mr. Avik Mitter appearing for the appellant submits before us with reference to the sketch map prepared by the Investigating Officer and the statement of P.W.10 Intu that from the prosecution evidence we do not get any clear picture regarding the actual place where Margina was assaulted by Serajul and Mr. Mitter contends that this deficiency in the prosecution case as available from evidence leads us to the conclusion that prosecution story involving the appellant may not be correct.
12. Mr. Mitter submits that from the deposition of the doctor who conducted post-mortem examination we find that there was evidence of dragging of the body of Margina, but, there is nothing in the statement of P.W.10 Intu that his mother was dragged by his father and this also creates a strong suspicion in our mind about veracity of the prosecution allegation against the appellant.
13. Mr. Mitter submits that Karshed Sk. was very close to deceased Margina and it is available from cross-examination of Karshed as P.W.3 that he had monetary relation with the deceased Margina and since there is no clear evidence about presence of Karshed Sk. outside the house of Margina, the possibility of his involvement behind the murder could not be ruled out and the Investigating Officer did not direct his attention towards this end and being influenced by local people, appellant has been falsely implicated simply on the ground that deceased Margina was his first wife.
14. Mr. Mitter finally contends that according to prosecution case Intu was the star witness of prosecution who had seen the occurrence, but, Intu being a minor at the relevant time it would be highly risky and unsafe to accept his testimony for sustaining the order of conviction, more so, when Intu being a minor was very much susceptible to tutoring by other adult persons who were interested in the conviction of the appellant.
15. Thus, Mr. Mitter sums up his argument by pointing out that save and except the statement of Intu, there is no other convincing evidence to implicate the appellant and when there was a possibility that witness Karshed Sk. might be involved behind the murder of Margina, considering the legal aspect that without sufficient corroboration no reliance should be placed on the testimony of a minor witness, there was sufficient scope for the learned Trial Court to extend benefit of doubt in favour of the appellant and to acquit him of the charge of murder of his wife.
16. Mr. Jayanta Narayan Chatterjee appearing for the State respondent has supported both the order of conviction and sentence contending inter alia that in view of the overwhelming evidence against the present appellant, there appears no scope for the appellant to avoid the order of conviction and sentence.
17. Mr. Chatterjee submits that from inquest report, post-mortem report and also from the deposition of the doctor, there was no scope to deny that Margina died out of throttling and there was enough indication on her person to support the prosecution case that her neck was pressed and thereby she met the tragic death which was both ante-mortem and homicidal in nature. Mr. Chatterjee contends that from the post-mortem report as well as from the statement of the doctor it was also proved beyond reasonable doubt that only a single person was involved behind homicidal death of Margina.
18. Mr. Chatterjee with reference to the contents of FIR and the statement of P.W.2 Aulia Bibi submits that just prior to her death Margina met Aulia Bibi by the side of the local pond and Margina disclosed arrival of Serajul in the house just adjacent to her house and since Aulia Bibi was well aware regarding the strain relation between Margina and Serajul, Margina was cautioned and this part of the prosecution evidence was not challenged by the appellant during trial and we can very well conclude that there is no possibility of disbelieving the prosecution case that Serajul came near the place of occurrence.
19. Mr. Chatterjee submits that P.W.3 Karshed Sk. and P.W.10 Intu who were present at the place of occurrence have stated in clear term that appellant entered into the house and throttled Margina resulting her instantaneous death and both of them had seen the appellant to flee away by jumping over the wall. Mr. Chatterjee contends that both Sk. Serajul and Intu gave their statements before the learned Magistrate and there appears no contradiction between their statement given before the Magistrate and given before the Court during trial. Mr. Chatterjee contends that P.W.4, P.W.5 and P.W.6 have stated in one voice that from the minor boy Intu they came to learn soon after the occurrence that appellant throttled Margina to death and thereafter fled away.
20. Mr. Chatterjee submits that it is well-accepted position of law that deposition of minor witness must be considered with great caution, but, in this particular case Intu during his cross-examination could not be shaken at all and if the statement of Intu is considered in the background of other prosecution evidence, there is no scope to raise any eyebrow about the veracity of the prosecution case and about the involvement of the appellant behind the murder of his wife Margina.
21. Mr. Chatterjee, therefore, concludes that there is practically no merit in the present appeal and the same must be dismissed.
22. We have considered submissions of both Mr. Mitter and Mr. Chatterjee made in connection with this appeal and we have also carefully examined evidence produced by prosecution during trial. From the FIR as well as from the statements of different prosecution witnesses we find that appellant Serajul Sk. was husband of deceased Margina and out of their wedlock three children were born including Sk. Intu who was examined as P.W.10. We also get from evidence on record that since birth of Sk. Intu, Margina was deserted by appellant Serajul and Serajul married second time and he was residing with his second wife elsewhere.
23. From the FIR as well as from the statement of P.W.2 Aulia Bibi we find that on the date of occurrence P.W.2 Aulia Bibi met Margina by the side of the village pond and from Margina Aulia Bibi came to know that Serajul has come in the house of Sahamat Sk. which was just by the side of Margina’s house and we also get from the FIR as well as from the statement of P.W.2 Aulia Bibi that as Margina was afraid of Serajul, she was cautioned by Aulia Bibi to guard herself from Serajul.
24. We find from FIR as well as from the statement of P.W. 2 Aulia Bibi and other prosecution witnesses that within a short time from the meeting of Margina with Aulia Bibi, Margina returned to her house and soon thereafter, she was found dead and her son Sk. Intu informed the neighbours and disclosed to the neighbours namely P.W.3, P.W.4, P.W.5 and P.W.6 that his father Serajul after entering into their house, throttled her mother to death and thereafter had fled away by jumping over the boundary wall of the house.
25. From the statement of P.W.3 Karshad Sk. who was the labourer of Margina, we find that Karshed Sk. on his return from the field found Margina lying on the Courtyard and he also found Sk. Intu weeping and on interrogation Karshed Sk. came to learn from Sk. Intu that his father has killed his mother and said Karshed also noticed appellant Serajul to run away from the house.
26. P.W. 4 to P.W.6 and also the FIR maker P.W. Abu Ahamed Mondal had deposed during trial that after coming to the house of Margina and on asking from Sk. Intu they came to learn that Serajul killed Margina and fled away.
27. From the post-mortem report and also from the statement of the doctor we get that Margina was throttled to death and she suffered a homicidal death and the injuries appearing on her person were ante-mortem in nature. We also get from the deposition of doctor that a single individual was responsible for the murder of Margina.
28. On careful perusal of entire prosecution evidence we find that only Sk. Intu the minor boy of Margina and Serajul was the eye-witness of the occurrence and soon after the occurrence he disclosed the name of Serajul as the assailant of his mother and this has been stated by all the prosecution witnesses in this connection during trial.
29. Mr. Mitter tried his best to impress that since prosecution could not fix up the exact place of murder of Margina and since from the observation of the doctor conducting post-mortem examination we get an idea that Margina was dragged after her death and since there is no corresponding evidence to this effect from the side of prosecution, Serajul cannot be held liable for murder of Mrgina and Mr. Mitter with reference to the statement of Karshed Sk. P.W.3 made efforts to establish that involvement of Karshed Sk. behind the murder of Margina cannot be ruled out altogether. Mr. Mitter has also challenged the statement of Sk. Intu on the ground that he being a child witness, the Trial Court ought not have placed any importance on his statement, more so, when his statement did not get corroboration from other reliable evidence.
30. We have already stated that both in the FIR which was lodged within a shortest possible time and also from the statement of P.W.2 Aulia Bibi whose name was mentioned in the FIR we get a clear picture that just before the death of Margina, Margina herself disclosed before P.W.2 Aulia Bibi the presence of Serajul near the place of occurrence and also her apprehension about Serajul and keeping this undisputed fact in mind when we get that Sk. Intu in a clear and unequivocal term mentioned the name of the appellant as the assailant of his mother and when Sk. Intu during investigation made the same statement before the learned Magistrate which was well corroborated by P.W.3 Karshed Sk., there is no ground at all to disbelieve the evidence of Sk. Intu as P.W.10 as well as the evidence of P.W.2 Aulia Bibi and P.W.3 Karshed Sk.
31. We are well aware of legal position relating to the evidence of child witness and keeping in our mind the necessary legal requirement while appreciating the statement of a child witness, in this particular case on examination of the statement of Sk. Intu as a whole, we notice to our satisfaction that during his cross-examination nothing was taken to shake the credibility of this child witness, on the contrary, Sk. Intu did not deviate in the least from his statement and, that apart, he reiterated his earlier statement given before the learned Magistrate during investigation.
32. Thus, when we consider the evidence of Sk. Intu and when we find from other prosecution witnesses that all of them came to learn from Sk. Intu soon after the occurrence that appellant killed his wife, keeping in mind the bitter relation between the appellant and deceased Margina, we are inclined to hold that prosecution successfully proved beyond all reasonable doubt that on 2nd June, 1998 Serajul throttled Margina to death and the learned Trial Judge in proper appreciation of evidence found Serajul guilty of the offence under Section 302 of the IPC and convicted him accordingly.
33. Thus, having regard to the submissions of both the sides and on careful consideration of prosecution evidence, we are of the view that there is no merit in the present appeal.
34. The appeal preferred by Sk. Serajul is, therefore, dismissed.
35. The order of conviction and sentence recorded by the learned Trial Court are hereby confirmed.
36. Send a copy of this judgment to the Superintendent of the Correctional Home where the appellant is detained for his information.
37. Send a copy of this judgment along with LCR immediately to the Trial Court for information and necessary action.
38. Urgent xerox certified copy of this judgment be supplied to the learned Advocate for the appellant on making proper application and after complying with all legal formalities.
Tapas Kumar Giri, J.
39. I agree.