Mansa Bhakta vs State Of West Bengal

Joymalya Bagchi, J

The appeal is directed against judgment and order dated 27th April, 2015/28th April, 2015 passed by the learned Additional District & Sessions Judge, 1st Court, Jhargram, Paschim Medinipur in Sessions Trial No. 11(04)2014 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for one year more for the offence punishable under Section 302 IPC.

The prosecution case as alleged against the appellant is to the effect that on 13th October, 2012, a putrefying smell emerged from the residence of the appellant. Villagers informed the Pradhan and the Pradhan requested one Bimal Mahato, a Panchayat member (PW1) to enquire into the matter. Upon enquiry it was learnt that the appellant had murdered his mother namely, Jalda Bhakta and his brother namely, Dilip Bhakta @ Baku Bhakta and kept their bodies in the house. A written complaint was lodged by PW1 resulting in registration of Jhargram Police Station Case No.276 of 2012 dated 13.10.2012 under Section 302 IPC. In the course of investigation, post-mortem was conducted over the dead bodies of Jhalda and Dilip. Post-mortem doctor opined that the death, which was homicidal in nature, occurred 3-4 days prior to the post-mortem examination. The appellant was arrested. A blood stained axe was also recovered. In conclusion of investigation, charge-sheet was filed against the appellant. Charge was framed under Section 302 IPC against the appellant. The appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 8 witnesses to prove its case. The defence of the appellant was one of innocence and false implication. However, in the course of examination under Section 313 of the Code of Criminal Procedure, he admitted that he used to reside in the house wherefrom the dead bodies had been recovered. In conclusion of trial, the trial Judge by the impugned judgment and order dated 27th April, 2015/28th April, 2015 convicted and sentenced the appellant, as aforesaid.

Mr. Kausik Gupta, learned counsel appearing for the appellant submits no evidence was led by the prosecution to show the appellant was present at the time when the murder occurred. He further submits prosecution case is most unnatural as none of the neighbours heard of any quarrel or shout in the residence of the appellant. It is further argued that the appellant had no motive to commit the murder. Referring to the conduct of the appellant who remained silent inspite of the death of his mother and brother for 3-4 days and the evidence of PW3, it is argued that the appellant was insane at the time of occurrence and ought to be acquitted.

Mrs. Manasi Roy, learned advocate appearing for the State, argues that the appellant himself admitted that he resided with his mother and brother in the house wherefrom their dead bodies were recovered. Post-mortem doctor (PW7) deposed that the victims suffered homicidal death. Appellant has not taken any plea of alibi that he was absent at the time of occurrence and failed to offer any explanation with regard to the manner and circumstance leading to the homicidal death of his mother and brother. On the other hand, he kept quiet and hid the dead bodies in the house till the bodies started putrefying and the villagers discovered the incident. Plea of insanity was not taken in the course of trial and has been taken belatedly at the appellate stage. There is no contemporaneous material with regard to prior ailment or hospitalisation of the appellant owing to insanity. Hence, the appeal is liable to be dismissed.

I have considered the evidence on record in the light of the aforesaid submissions. Evidence of prosecution witnesses when read in the light of the response of the appellant given to question nos.3 & 4 in his examination under Section 313 of the Code of Criminal Procedure leaves no doubt in my mind that he used to reside with his mother and brother in the same house wherefrom their dead bodies were recovered. Question nos.3 & 4 and the answers thereto are set out hereinbelow :-

Q. No. 3. From the evidence it appears that you along with your mother Jalada Bhakta and your brother Dilip Bhakta

Ans. would reside together at Dhatkidanga village under Jhargram P.S. Would you like to say anything about it ? Yes, it is correct.

Q. No. 4.

Ans. From the evidence it further appears after receiving stinking smell from your house one written complaint was lodged by the then Panchayat member Bimal Mahata before Jhargram P.S. Would you like to say anything about it ?

Yes, it is correct.

PW7, Dr. Pranab Ray, is the post-mortem doctor who examined the dead bodies of Jalda Bhakta and Dilip Bhakta @ Baku Bhakta. He found the following injuries on the body of Jalada Bhakta :-

1) Sharp cut injury right orbital cavity, right para orbital area, right ear, involving in the cut, injury in skin subqutneous nerve tissue and other soft tissues, bones of that area cut measuring 12 c.m. x 2 c.m. And deeply involved. Signs of haemorrhage;

2) Deep sharp cut injury left posterior auxiliary area, 4 c.m. x 1.25 c.m. x 2.5 c.m. Skin, subqutneous tissue, fasciae, soft tissue and left scapular bone cut laterally, signs of haemorrhage;

3) Sharp cut injury left forearm ventral aspect 5 c.m. x 1.25 c.m. x 1.25 c.m. Sin, soft tissue, muscles, fasciae cut signs of haemorrhage;

4) Sharp cut injury right loyal measuring 7 c.m. x 1.5 c.m. whole thickness of abdominal wall, lops of intestine coming out through the opening signs of haemorrhage;

5) Cut injury medical aspect of right thigh 1.5. c.m. x .25 c.m. x .25 c.m. signs of haemorrhage trace.

Following injuries were found in the body of Dilip Bhakta @ Banku :-

1) Deep sharp cut injury over left temporo-parietal area, antero-posteriorly directed, measuring 7.5. c.m. x 2.5 c.m. x scalp bone manineges brain matter of left temporal lobe cut. Scalp bone also sustained communited fractured of left temporal and parietal bones haemorrhage;

2) Deep sharp cut injury left mandibular area 7.5 c.m. x 1.5 c.m. and skin subcutaneous tissue, fasciae platigma, masseter muscle and sheath outer half of left mandibular bone cut;

3) Deep sharp cut injury right mandibular area 7.5 c.m. x. 1.25 c.m. x skin subcutaneous tissue, fasciae platigma, masseter muscle and sheath outer half of right mandibular bone cut;

4) Deep sharp cut injury anterior surface of neck at the level of thyroid cartilage measuring 5 c.m. x .75 c.m. and skin muscle, subcutaneous tissue, fasciae platigma, masseter muscle and sheath great vessels of both sides of neck, thyroid cartilage, vocal cord cut, larynx, laringopharynx haemorrhage.

He opined that death was due to shock and haemorrhage as a result of the aforesaid injuries ante mortem and homicidal in nature. A sharp cutting weapon had been used. He deposed that death was 3-4 days prior to the post-mortem examination. He proved the post mortem reports (Exhibit-4 and 5).

From the aforesaid materials on record it is clear that the appellant used to reside with his mother and brother in the same house. 3 to 4 days prior to13.10.2012 his mother and brother suffered homicidal death and their dead bodies were recovered from the said house in putrefying condition.

In this backdrop, it is argued that prosecution has failed to show that the appellant was present in the house on the fateful day. The fact that the appellant ordinarily resided in the house with the aforesaid persons has been admitted by him. Hence, the most natural and irresistible conclusion would be that the appellant was at his residence on the fateful day when the incident occurred. In order to rebut such state of affairs it was incumbent on the appellant to raise and prove the alibi that he was not present at the residence. The appellant has singularly failed to do so and, therefore, I hold the trial court had correctly concluded that the appellant was present at his residence on the fateful day when the victims were murdered. It is also relevant to note that apart from denying that he had not murdered the victims, no explanation was offered by the appellant with regard to the circumstances leading to their homicidal death. No evidence has come on record to probabilise the presence of any other human agency or circumstance which would give rise to a probable hypothesis which shifts needle of guilty from the appellant to any other person.

In this backdrop, I am of the opinion the aforesaid circumstances in the present case unerringly points to the guilty of the appellant and the appellant alone. It is argued that the weapon of offence seized by the investigating officer (P.W. 8) was not produced and the fingerprints had not been taken from the weapon. In view of the aforesaid clinching circumstances, remissness of the investigating agency in failing to produce the seized articles in court or take fingerprints, in my considered opinion, would not affect the veracity of the prosecution case.

Finally referring to the cross-examination of P.W. 3 who stated that the appellant was mad, it is argued that the appellant was insane at the time of occurrence. Plea of insanity would be a valid defence only if it is proved from the evidence on record. Even if, prosecution evidence gives rise to a credible inference of insanity, it is the duty of the prosecutor to explain away such circumstance, failing which the benefit of doubt may be extended to the appellant. Reference in this regard may be made to Devidas Loka Rathod vs. State of Maharashtra 2018 (7) SCC 718. In the present case, such plea has been taken at the appellate stage. Hence, I have sifted the evidence on record in the backdrop of the attending circumstances to examine whether a probable case of unsounding of mind has been made out or not. Apart from a stray sentence coming from P.W. 3 there is no circumstance appearing from the materials on record that the appellant was insane and used to behave in an abnormal manner or had been hospitalized due to mental illness. The appellant had not only murdered his mother and brother but out of fear had secreted their dead bodies in his house. Such conduct of the appellant, in my considered opinion, cannot, in the absence of any other materials on record, lead to an inference of insanity. In Devidas Loka Rathod's case (supra), the Court had noted from evidence on record to show that the appellant used to behave in an abnormal manner and move around in the locality without clothes. He had also been hospitalized. On the basis of such materials on record, the Court came to the conclusion that the appellant was suffering from insanity of mind and was entitled to an order of acquittal. None of such circumstances are evident from the present case. The appellant never behaved abnormally either before, during or after the occurrence. His conduct of hiding the dead bodies was more an act of self-preservation in order to screen himself from legal punishment.

Thus, I am of the opinion that the plea of insanity does not have legs to stand and the conviction and sentence of the appellant is upheld.

The appeal is accordingly dismissed.

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

Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.

I agree.