Birendra Chakraborty @ Biren & Anr. vs The State Of West Bengal

Rajasekhar Mantha, J.:

Dr. Pradip Banerjee and Mr. Sankalpa Bhattacharjee, learned Advocates are requested to represent the State in this matter. Let their appointments be regularized by the office of learned Public Prosecutor, High Court at Calcutta.

The subject appeal is directed against the judgment and order of conviction and sentence dated 27^th September, 2019 and 30^th September, 2019 passed by the learned Additional District & Sessions Judge, Amta, Howrah in Sessions Case No. 82(V) of 2016. The appellants were convicted by the appellants for life under Section 302 read with Section 120B of the Indian Penal Code.

On 18^th March, 2011, the appellants and two other accused persons, named in the FIR, assaulted the victim Dwijen Chakraborty. He was a blood brother of Appellant No.1. At around 9 to 9:30 P.M., the victim was returning from a local market. He is stated to have been assaulted with a bamboo stick and a rod and three other sharp cutting weapons.

The victim crawled back to the courtyard of his house in a severely injured condition and was calling out his wife and brother. Upon arrival at the courtyard of the house, the victim fell on to the lap of his seventy five year old mother.

The victim is stated to have told his mother that the appellants aided and abetted by the other two accused persons in the FIR, had severely assaulted him and stabbed him in belly with a knife.

The incident of assault is stated to have been witnessed by his wife/PW1, the de facto complainant, from the window of her room. She then came running out and calling out her eldest brother-in-law (PW-2). The naming of the appellants by the victim, in his mother’s (PW-4) lap was also witnessed by PW-2 and PW-3. The victim was thereafter taken to Amta Hospital where he was declared ‘brought dead’.

The complaint was lodged by PW-1 on the next date. Amta Police Station registered a formal FIR being No. 96 of 2011 on 19^th March, 2011 under Sections 302 read with Section 34 and 120B of the Indian Penal Code against the two appellants and Someswar Chakraborty, Biswajit Chakraborty, being another brother of the appellant no.1 and his wife Sulekha Chakraborty, as co-accused.

On the date of registration of the FIR, inquest was conducted on the victim, which was witnessed by PW-5, Subhas Roy and PW-2. PW-2 was the eldest brother of the victim and appellant no.1. In the history of the incident recorded by the Inquest Officer, the appellants are named as persons, who attacked the victim in a preplanned manner

Investigation was conducted by one Mangal Chandra Das, Sub Inspector of Police (deceased prior to trial), who completed the same and filed charge-sheet.

Charges were framed by the Trial Court against four FIR named accused persons, on 11^th April, 2017.

PW-1, Pali Chakraborty, was the wife of the victim and also the defacto complainant. She deposed that she saw the appellant no.1 stabbing the victim with a knife on a pathway from the window of her room. She could see the victim and the knife from the tube light reflecting out of her room on to the place of occurrence.

The victim thereafter dragged himself about fifteen feet into the courtyard of his house whereupon he found his mother and laid down in her lap. The victim told his mother that the appellant no.1 had stabbed him on his back and also on the chest. The victim is stated to have taken off his red vest to show his mother the stab wound in the belly. According to PW 1, the victim stated as follows:-

PW-1 further confirmed that there might have been some disputes between the brothers relating to the property owned by and between the brothers. The evidence of PW-1 was not seriously controverted in her cross-examination.

PW-2, Rabindra Nath Chakraborty was the eldest brother of the appellant no.1 and another accused Biswajit Chakraborty. He deposed that on the date and time of occurrence, he was at home and rushed to the courtyard upon hearing cries of his sister-in-law (PW-1).

He has deposed that the victim had stated to his mother that the appellant no.1, his wife and son had assaulted him. He has deposed that the victim stated as follows:-

He also deposed that the appellant no.1 and his wife and son had unleashed a personal vengeance of the youngest brother Biswajit and his wife against the victim.

The statement of PW-2 recorded under Section 164 of the Code of Criminal Procedure was exhibited before the Trial Court. In his statement before the Magistrate, PW-2 stated that he had heard from PW-1 about the incident and had witnessed and heard the victim say what he had said on his mother’s lap in the courtyard. His evidence also could not be shaken in cross-examination.

PW-3, was Arajit Chakraborty @ Arijit Chakraborty, son of the deceased. He corroborated the evidence of PW-1 and PW-2, inter alia, to the extent of the utterances of the deceased in his mother’s lap. He deposed that the victim stated as follows:-

He, however, did not see the actual incident at the place of occurrence nor did PW-2.

PW 4 was Arati Chakraborty, mother of the victim, appellant no. 1 and PW 2. She deposed that she was old and had difficulty in walking. She woke up that night hearing the crying of PW 1. She came to the courtyard when she said as follows:-

She deposed that her son could speak despite bleeding and in pain. She confirmed that she told what she deposed to the investigating officer. She also deposed that she poured water on the victim. In cross examination however she admitted that she was not happy with the appellant no.1 since he married as per his own choice. She also did not like the cooking of appellant no.2. She did not depose or elaborate on the role of Madhabi in the assault on her son.

PW-5, Subhas Ray, was the older brother of PW-1. He was the scribe of the complaint signed by PW-1. He, however, deposed in Court that he was not aware as to who had attacked the victim.

PW-6 was Dr. Monindra Nath Bera, before whom the victim was brought at Amta Hospital immediately after the incident. In the injury report, proved by him in Court, he had stated that the victim had multiple injuries about six in number on the back and two injuries of which one 3cm cut on his chest. The injury report has been exhibited before the Trial Court. He also deposed that the wearing apparel had cut marks. The victim was ‘brought dead’ to the hospital.

PW-7 was a constable Sk. Samsuddin Box, who collected the body of the deceased from the morgue at AmtaHospital for post mortem.

PW-10, Dr. Swapan Mandal was the post mortem doctor. He proved the post mortem report. In such report, he identified only one fatal injury on the left side of the chest of the victim. The injury was caused by a sharp cutting weapon. It pierced the heart of the victim. PW-10, however, deposed that there were no other injuries on the body of the victim. He opined that death may be due to stabbing on the victim.

All the accused thereafter were examined under Section 313 of the Cr.P.C. and the circumstances against them were duly confronted. The appellants herein only denied the suggestions against them. They also stated that they were not present at the place, date and time of occurrence. They, however offered no alibi as to where they were, in fact, present at the place, date and time of occurrence.

Based on the evidence discussed above, the Trial Judge acquitted accused Biswajit Chakraborty and Sulekha Chakraborty. The appellants Birendra Chakraborty and his wife Madhabi Chakraborty were, however, convicted for life imprisonment under Section 302 read with Section 120B of the IPC.

Mr. J.N. Chatterjee, learned senior counsel for the appellants, has placed the evidence before the Trial Court both oral and documentary thread bare and in substantial detail.

He has argued that the non-recovery and production of the knife by the prosecution is fatal to its case. He next argued that there were no independent witnesses other than family members examined by the prosecution in support of the case. The place of occurrence is not proved. The purpose behind implicating the appellants is primarily a property dispute. PW-1 to PW-4 were predetermined to falsely implicate the appellants and thus have deposed parrot-like manner. The motive behind such premeditation was to ensure the eviction of the appellants from the residence and to facilitate a larger space for themselves.

This Court has very carefully considered the evidence on record and the deposition of each of the witnesses. Indeed, there is substance in the argument advanced by Mr. Chatterjee, learned senior counsel, that the knife in the instant case is a crucial piece of evidence. The prosecution has not been able to bring on record the reasons for non-recovery of the knife.

This Court is, however, of the view that the consistent evidence of PW-1 to PW-4, albeit with minor differences, is sufficient to establish the prosecution case at least against the appellant No.1, Birendra Chakraborty. The non-recovery of the knife, which this Court finds as an omission on the part of the investigating agency is, therefore, not fatal to the evidence against the appellant No.1. In Ghanshyam Mandal v. State of Bihar, reported in 2026 SCC OnLine SC 307, it was held as follows:-

In the present case, an FSL examination was not done since the principal murder weapon, knife was not recovered. An FSL report is not a direct piece of evidence. Its absence by itself thus is not fatal to the prosecution case especially where the eyewitness testimony is credible and trustworthy and principal murder weapon could not be recovered. [In this regard, reference may be made to paragraph nos. 9- 11 of Pramode Dey V. State of West Bengal, reported in (2012) 4 SCC 559 ) ] .

It is an admitted position that the appellant No.1 and his brothers were eking out a living as priests. The three brothers lived in their respective earmarked separate rooms in the same house and/or plot of land, of their late father.

Accused Biswajit Chakraborty, lived in a neighbouring village due to paucity of space in the house in question. The appellant no.1 also had a room in the house. He did not work as a priest but as a driver. The appellant left in the morning and came back late in the evening. There were constant property disputes within the family. The victim and PW-2 were accused of depriving the appellant No.1 from his fair share in the house.

The argument advanced by Mr. Chatterjee of family property disputes being the motive behind implicating the appellants in the crime, is in the nature of a double-edged sword. Such disputes could also have been the reason for the appellant No.1 to cause fatal injuries on the victim.

The malice of the complainant and PW-4 towards the appellants has no relevance in the criminal jurisprudence unless it is shown that the investigating agency was motivated by malice and has collected non-existent evidence to prove the guilt of the accused as held in Sheonandan Paswan v. State of Bihar, reported in (1987) 1 SCC 288 & relied on in A.R. Antulay v. Ramdas Sriniwas Nayak, reported in (1984) 2 SCC 500.

While the argument that there was no independent outside witness to the crime one must remember that the incident as narrated by the prosecution and the PW-1 to PW-4 could not have been witnessed by any outsiders.

The crime has taken place at night behind the house of the victim. The victim dragged himself to the courtyard of his house. The likelihood of outsiders seeing the unfolding of the crime is remote. In State of M.P. v. Balveer Singh, reported in (2025) 8 SCC 545, it was held when the crime is committed in the close secrecy of the house, the prosecution cannot be expected to collect evidence of other persons who are not the members of the family. Paragraph no. 96 and 97 of Balveer Singh(supra) are set out below:-

In the present case, the crime is committed at night behind the house of the victim. The defense has not adduced evidence that there were third persons, who had seen the crime but the prosecution has withheld them. The nature of the crime rules out the possibility of the presence of a third-party witness. Non-production of an independent witness by the prosecution, therefore, is not fatal to the prosecution case.

The statements made by the victim to his mother PW-4, as confirmed by PW-1 to PW-3, lead to an irresistible conclusion that the victim before dying had clearly named the appellant Nos.1 and 2 of having caused bodily injuries to him. The appellant no.1 appears to have inflicted the more severe injuries on the victim like stab injuries as corroborated in the injury report.

There might be an exaggeration to the extent of the weapons used in the assault by PW-1. She deposed that the victim was assaulted by a bamboo, a bojali and an iron rod as also a knife. The knife has not been recovered. The evidence of PW-1, however, to the extent of the injuries inflicted by the appellant No.1 with a knife seen by her under a tube light reflection from her room read with the injury report and the post mortem report has clearly established the case of the prosecution against the appellant No.1.

This Court is not satisfied by the argument that the place of occurrence is not clearly evident. The place of occurrence was on the side of a pathway immediately behind the plot of land where both the victim, appellant No.1 and PW-2 resided in separate rooms. The pathway is also adjoining a pond on the other side. This is clear from the evidence of PW-1 and PW-2.

It is after suffering the injuries on his body on this pathway, behind his house that the victim somehow dragged himself to the courtyard in between the rooms of the three brothers. At the courtyard the victim collapsed in his mother lap and named the appellants. The oral evidence of PW-1 to PW-4 is clearly unimpeachable.

Mr. Chatterjee, learned senior counsel for the appellants, would next argue that the Trial Judge placed unnecessary and excessive reliance on the evidence of the mother PW-4. A mother is expected to have the same affection for all her sons. To the extent that she has confirmed and narrated the version of the victim, amounts to discrimination between her own sons. She has also admitted that she was not happy with the appellant no.1 for marrying outside the community against her wishes. She also admitted that she did not like the cooking of the appellant no.1. Her evidence should, therefore, be discarded by this Court.

This Court, however, notes that it is equally plausible and probable and most likely that PW-4, the mother of the victim, having seen her second son bleeding with severe injuries on his body on her lap and could not pardon the conduct of the appellant No.1. In Baban Shankar Daphal & Ors. v. The State Of Maharashtra- reported in 2025 INSC 97, it was held a relative of the victim would want the actual culprit to be punished as follows:-

Her evidence must not be seen as an attempt to implicate the appellant No.1. It could only be considered as truth told by a mother, no matter how hard the same would have been for a mother to digest.

In so far as the disenchantment with the appellant no.1 and 2, this court finds that PW-4 was rather truthful and candid to the trial court. Had there been any attempt to implicate the appellant no.1, her son, PW-4 would have suppressed or misled the Court in her cross-examination. The evidence of PW-4 must be accepted as was rightly done by the Trial Court.

Mr. Chatterjee, has next pointed out the inconsistency between the injury report proved by PW-6 Dr. Monindra Nath Bera and the post mortem doctor. While PW-6 deposed and stated in his injury report that the victim has sustained several stab wounds on his back and two stab wounds on his chest and stomach the post mortem doctor has noted only one injury on the chest wall, which ultimately penetrate to heart of the victim and another cut injury on right ventricle of heart. Indeed, this would amount to a serious contradiction.

However, this Court notes from the deposition of the family members of the PW-1 to PW-4 that the victim was assaulted with a knife, a bamboo and an iron rod. The injuries described by PW-6 are consistent with the number of injuries inflicted on the victim as deposed by PW-1.

The P.M. Doctor has been rather casual in noting the injuries on the victim. This Court is unable to accept the evidence of PM Doctor that there were injuries on the chest of the victim and there were no other injuries on him. This Court cannot brush aside the evidence of PW6, the initial treating doctor who noted the number of injuries on the body of the victim.

Even assuming for the sake of argument that the evidence of PW-6 should be discarded by this Court, the evidence of PW-10, Dr. Swapan Mondal, has proved that the victim was stabbed at least once on his chest. Such stabbing has resulted in the piercing of the heart. The medical evidence cannot override the unimpeachable eye witness account.

The injury or injuries inflicted by the appellants on the victim was fatal enough to put an end to his life. It is difficult for this Court to believe that the victim was stabbed only once and that too in the heart. To facilitate such piercing, the victim must have been assaulted to incapacitate him from defending himself. The version of PW-1 with the evidence of PW-6, the treating doctor, and their evidence is also consistent as to the number of injuries inflicted on the victim. Credible and trustworthy eye witness accounts always override medical findings, which is the opinion one person as opposed to the consistent evidence of more than one eye witness.

It is quite possible that the injuries inflicted on the back of the victim were not deep but may have caused bleeding to an extent. The wearing apparel of the victim which bore a cut, as deposed by PW-6, clearly indicated that the victim was stabbed.

The appellants did not demonstrate or show any alibi that they were not present at the place, date and time of the occurrence. The defence has also not put forth such alibi in cross-examination of any of the prosecution witnesses.

The main thrust of the defence was the inconsistency in the statements of PW-1 and PW-2 between what they deposed in the trial and what was recorded by the Investigating Officer under Section 161 of the Cr. P.C. We, however, find the evidence of PW 4 is consistent with her statements under Sec. 161 of the CRPC. Further, these minor inconsistencies were never put to the witnesses during trial to afford them an opportunity to explain. Consequently, the appellant cannot rely on such alleged discrepancies at the appellate stage more so when the eye witness accounts have proved the prosecution case beyond reasonable doubt. (In this regard, reference may be made to paragraph nos. 6 & 8 of Alauddin v. State of Assam, reported in (2024) 12 SCC 224) .

The defense also laid stress on the prior enmity of the property disputes between the brothers, however, has failed to demonstrate that malice has vitiated the prosecution case.

In the light of the aforesaid discussions and the principle of res gestae being applied to the reiteration of the version of the victim in the statement of the PW-2 under Section 164 of the Cr. P.C. and the evidence of PW-1, PW-2, PW-3 and PW-4 to that extent clearly implicate the appellant no. 1. In Dhal Singh Dewangan v. State of Chhattisgarh, reported in (2016) 16 SCC 701, it was held as follows:-

The argument of Mr. Chatterjee that the appellants have been falsely implicated to evict them from the residence can easily be negated in view of the principle of res gestae.

The victim ultimately died. He, therefore, had no reason to falsely implicate the appellants. The mother of the victim (PW-4) was about 75 years old on the date of the incident of the crime. She, therefore, reasonably had no aspiration and ambitions in life to enjoy the property. She too had nothing to gain from implicating the appellants.

The victim uttered the name of appellant no. 1 without any place for falsely conjuring up the name of the appellant no. 1. He was attacked and thereafter dragged himself to the courtyard of the house and took the names of the appellants, before his mother. The victim did not say anything separately to the other inmates of the house. He specifically indicated the name of appellant no. 1 to his mother.

Therefore, the evidence of the mother PW-4 cannot be discarded at all. The evidence of the mother, in fact, totally runs against the innocence of the appellant no.1 and enjoys a high degree of sanctity, given her relationship with the appellant.

However, in so far as the appellant no. 2, Madhabi Chakraborty is concerned, this Court finds that the prosecution has failed to bring any clear unimpeachable evidence on record of her role either in the assault of the victim or being egged on by the accused Biswajit Chakraborty and Sulekha Chakraborty.

Accused Biswajit Chakraborty and Sulekha Chakraborty were rightly acquitted by the trial Court. However, the conviction of Madhabi Chakraborty, appellant no. 2, by the trial Court is erroneous. There is no evidence that appellant no. 2 having participated, in causing the death of the victim or inflicting any injury on him in that matter. There is uncorroborated evidence of PW-1 of assault by appellant no. 2 on the victim with a bamboo. This, according to this Court, is not sufficient enough to implicate the appellant no. 2 in the offence against the accused persons. Madhabi Chakraborty has not assaulted the victim as per the evidence of PW-1 and PW-3. PW-4 only mentioned the appellant no.1 is assaulted on the victim. The charge under Section 120B of IPC is, therefore, not proved.

In the light of the aforesaid discussions, this Court is inclined to set aside the conviction of the appellant no. 2, Madhabi Chakraborty. She shall be acquitted for want of sufficient evidence to implicate her in the offence in question. Appellant No.2, Madhabi Chakraborty shall be set at liberty forthwith.

The conviction of the appellant no. 1, Birendra Chakraborty, is upheld by this Court. He shall suffer the sentence imposed on him by the trial Court subject to any benefit available to him under the penal laws of the Country.

CRA 73 of 2020 shall stand allowed in part as stated above.

Consequently, CRAN 3 of 2022 shall also stand disposed of.

The trial court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.

Urgent certified copy of this judgment, if applied for, be supplied the parties upon compliance with all requisite formalities.

I agree.