J.N. Patel, C.J.@mdashIn Sessions Trial No. 1(12)/1998 held before the Additional Sessions Judge, 2nd Court, Alipore the Appellant John Santosh Gomes was tried on the charge of having committed murder of Sourav Das alias Tupai aged about 3 1/2 years, son of Samir Das, P.W.4 and by judgment and order dated 16.4.1999 the Appellant was found guilty and convicted for having committed offence u/s 302 of the Indian Penal Code and thereby sentenced to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 3,000/-, in default to suffer Rigorous Imprisonment for one year.
2. It is the prosecution case that the Appellant John Santosh Gomes was given shelter by Samir Das, P.W.4 who permitted him to reside in his house as he was driven out from his house by his father. On 14.8.1998 at about 10.00 p.m. Samir Das, P.W.4 complainant along with his elder son Soumya Das alias Babai had gone to attend a marriage ceremony leaving his younger son Sourav alias Tupai in care of the Appellant-accused. At midnight when he returned from the marriage ceremony he saw, Appellant-accused, and his son sleeping on the cot of their room i.e. on the first floor. Therefore, he did not disturb them and he along with his elder son came to the ground floor and slept in the room which was occupied by Appellant-accused. At about 6.00 a.m. in the morning when Samir Das, P.W.4, complainant went to call Appellant-accused he found that he was not there and his younger son Sourav Das alias Tupai was lying dead in the cot with throat cut injury and blood was emitting from his throat. Therefore, he informed Entally Police Station. When police arrived at the place of occurrence Samir Das, P.W.4 gave the report (FIR Ext.3) and he suspected that Appellant-accused murdered his son and fled away. The investigation of the case was done by S.I. A. Ahmed, P.W.21 who recorded statements of witnesses and carried out seizure of articles from the place of occurrence and sent the deadbody to NRS Morgue for the purpose of conducting post-mortem examination.
3. It is the case of the prosecution that the Appellant-accused came to be arrested on the same day at 19.15 hours near the western side gate of Padma Pukur Park. On his arrest, the Appellant-accused was brought to the place of occurrence and at his instance one reddish napkin was seized in the presence of witnesses vide seizure list Exbt.4/9.
4. The investigating officer also seized various other articles viz. pillows, shirt, bed sheet (Exbt.4/8) and wearing apparels i.e. gangee, half pant from the Appellant-accused vide Exbt. ''4/10''. Thereafter, on completion of the investigation and receipt of the report from the FSL, a chargesheet came to be filed against the Appellant-accused.
5. The Appellant-accused pleaded not guilty to the charge and claimed to be tried. He has taken a defence of complete denial. On completion of the trial, the trial Court came to a finding that the Appellant-accused has committed murder of Tupai and accordingly, convicted him, against which this appeal has been filed.
6. It is the contention of the learned Counsel appearing for the Appellant-accused that the Appellant-accused has been arrested and prosecuted in the case mainly on the basis of suspicion. It is submitted that the Appellant-accused never resided in the house of Samir Das, the complainant, P.W.4, the father of the victim. It is submitted that there is no material or evidence laid before the Court to show that the Appellant-accused has committed the murder.
7. It is further submitted that the prosecution has examined Maya Sarkar, P.W.8 the lady who has been residing in the house of Samir Das, P.W.4 who, according to the prosecution, has seen the accused leaving the house at 4.00 a.m. cannot be believed for the reason that the said witness was suffering from cataract and could not have seen the person properly.
8. It is also submitted by the learned Counsel appearing for the Appellant-accused that the injuries found on the deceased son, Sourav Das alias Tupai could not be attributed to the Appellant-accused and that the learned trial Court has found the Appellant-accused guilty mainly on the basis of suspicion. Therefore, the Appellant-accused be acquitted and his appeal be allowed.
9. It is also the case of the Appellant-accused that no opportunity was given to the Appellant-accused to lead evidence in defence and, therefore, the finding of the trial Court deserves to be quashed and set aside and the appeal be allowed.
10. On the other hand, it is the contention of the learned Counsel appearing for the State that the prosecution has proved the case against the Appellant-accused beyond the shadow of doubt as it has established that the Appellant-accused at the relevant time was residing in the house of P.W.4 and committed murder of his son in between the night of 14.8.1999 and 15.8.1998. It is submitted that the fact that the Appellant-accused was residing in the house of Samir Das, P.W.4 stands established from the evidence of P.W.4, Maya Sarkar, P.W.8, the lady who was residing in the house of P.W.4 and Soumya Das, P.W.9, elder brother of the deceased and other witnesses and the fact that the Appellant-accused was last seen sleeping with the victim boy in his house and the fact that he was found missing from the house in the morning when Samir Das found his son lying dead on the bed where he was sleeping with the Appellant-accused during night-time, is sufficient to establish that the Appellant-accused is guilty of having committed murder.
11. It is further submitted that the Appellant-accused has not examined any witness in his defence in spite of opportunity being given to him. Therefore, the appeal filed by Appellant-accused deserves to be dismissed.
12. We have heard learned Counsel for the parties and gone through the evidence on record and after giving our anxious consideration to the facts established by the prosecution we have no hesitation to hold that the trial Court was justified in arriving at a conclusion that the Appellant-accused has committed the murder of 3 1/2 year old child i.e. Sourav Das alias Tupai after molesting him.
13. The prosecution has examined Samir Das, P.W.4, Maya Sarkar, P.W.8 and Soumya Das, P.W.9, In addition to other witnesses (P.W. 5, P.W.6, P.W.7, P.W.10, P.W.13, P.W.16) )to prove that the Appellant-accused was at the relevant time residing in the house of Samir Das, P.W.4.
14. In his evidence P.W.4 has deposed that on the day of the incident he had gone to attend marriage ceremony along with his elder son Soumya Das alias Babai leaving behind his younger son Sourav Das alias Tupai in the care of Appellant-accused and at the time they left the house, the deceased Tupai was sleeping on the cot in their room and the Appellant-accused was there with him. When he left the house along with his son he locked the door in the staircase from outside. According to him, except the staircase leading to the first floor there is no other entrance for reaching first floor room of his house, and one Maya Sarkar, P.W.8, a physically handicapped woman was sleeping below the staircase inside the door of the staircase. At 12 p.m. when he returned and after opening the door of the staircase he went upstairs to the room of the first floor, he found Appellant-accused and Tupai were sleeping on the cot of the room and so he and his eldest son went downstairs and slept in the room on the ground floor. In the morning when he woke up from sleep and went to the first floor room he found that Appellant-accused was not there and his son Tupai was lying dead on the cot with throat cut injury and blood was emitting from his throat. He has identified the Appellant-accused before the Court.
15. Similarly, P.W.8, Maya Sarkar also deposed about Appellant-accused residing in the house of Samir Das, P.W.4 and that on the day of the incident Appellant-accused was in the first floor otherwise ordinarily he used to sleep in the ground floor room and that day she saw him going out at 4 a.m. When she asked Appellant-accused where he was going, he replied by saying that his father was crying and, therefore, he was going. She had identified John Santosh Gomes in the Court, as the same person.
16. It was tried to be suggested that this lady, Maya Sarkar was not able to see properly and therefore it was difficult for her to identify Appellant-accused as deposed by her that she saw him leaving the house at 4 a.m. in the morning.
17. We do not find from the cross-examination of all these three witnesses that they have falsely implicated the Appellant-accused. On the other hand, their evidence is cogent, consistent and appears to be reliable. Therefore, by their evidence the prosecution has established the fact that the Appellant-accused was sleeping with the deceased Sourav alias Tupai, a 3 1/2 year old boy, on the fateful night and was found missing when P.W.4 went to wake him up in the morning at 6 a.m. and noticed that his son was lying dead on the bed with throat cut injury.
18. Prosecution has examined Amit Das (P.W.5) and Surojit Bhattacharya (P.W.6) who are witnesses to seizure of various articles from the place of occurrence. They have also stated that Appellant-accused was residing in the house of Samir Das (P.W.4) so also Babu Das (P.W.7) and Kalipada Das (P.W.10) have deposed that Appellant-accused, Shova and Maya (P.W.8) use to stay in the house of P.W.4. Noel Joseph Das (P.W.13), a neighbour of Appellant-accused stated that the father of Santosh (Appellant-accused) drove him out of his house and he used to sleep here and there. P.W. 4 has asked him about accused, he told that he was a good boy. All these witnesses corroborate the fact that the Appellant-accused used to reside in the house of Samir Das (P.W.4) at the relevant time. Therefore, it stands clearly established that Appellant-accused was residing in the house of Samir Das (P.W.4) and Tupai was last seen alive and sleeping with Appellant-accused in the room on the first floor of their house. As a matter of fact he also had an opportunity to kill Tupai and after killing him left the place.
19. Dr. Majumder, P.W.18 has conducted the post-mortem examination (Exbt.6) over the deadbody of Sourav alias Tupai. On examination he found the following injuries on the body of the deceased:
1. One lacerated injury 1 1/2" x 1/2" muscle over the under surface of the lower jaw with irregular serrated bruised margins (gnawing) placed obliquely.
2. One bruise (dark red) 2" x 1 1/2 " over the mid forehead.
3. Pressure abrasions (bite marks) total 4 in numbers 2 in each row placed in two rows more or less elliptical in shape, over the upper quadrant of the right, buttock, dark red, size upper right, 3" x 1" and the left .2" x .1" with an intervening gap of .2" and same type of injury was also seen over the left buttock-upper quadrant. On disSection
1. Deep bruise (dark red) 5" x 4" over the right occipital head with subdural hemorrhages all over the brain surfaces including base of the brain with countercoup laceration 1" x 1/2 " brain substances over the right frontal lobe of the brain. All the injuries were fresh. No other injury could be detected even on careful dissection and examination. No foreign body could be detected. Answer to queries -1, Cause and nature or death in my opinion was due to the effects of the head injury as noted above ante mortem and homicidal in nature.
2. Injury on the lower jaw appeared to be produced by bite (gnawing)- irregular and serrated. The injury was fresh.
3. There are bite marks over both buttocks as described above. The injuries were fresh.
4. There is no sign of seminal emission over the anal region. However, to be confirmed on receipt of the FSL report on the preserve anal swabs and slides.
5. Other internal or external marks of injury *already described *Orl.P.37 above.
6. The foreign articles could be detected over the dead body.
7. Any other point of medico legal interest - P.M. blood in a vial without any preservative and visceras in saturated solution or sodium chloride with control-sent to F.S.L. through P.S.
Wearing apparels, scalp hair, nails, cuttings and scrapings, blood soaked in blotting paper with control-sent to P.S. Anal Swabs and smears preserved - sent to P.S.
20. The doctor also collected wearing apparels and sent it to the police station from where it was sent to F.S.L. This very doctor has examined the Appellant-accused on 17.8.1998. The evidence of Dr. Majumder clearly indicates that the victim was molested before he was done to death.
21. The medical officer was thoroughly cross-examined but nothing adverse could be brought on record to show that the unnatural death of the victim was not homicidal.
22. The forensic report, has been proved by the prosecution by examining Dr. Shipra Roy, P.W.17 and S. Sathyan, P.W.20, Junior Scientific Officer. Dr. Shipra Roy, P.W.17 had visited the place of occurrence and was able to collect blood on the floor of the bath room and bed room of the deceased near the South-East corner of the room which is near the door leading to the first floor balcony.
23. On examination she found blood on the floor of the bath room and in the attire of the reservoir of the bathroom and two drops of blood on the floor of the bed room of the deceased, which were sent to the laboratory. Similarly, S. Sathyan, P.W.20 who is a Junior Scientific Officer, CFSL has examined sealed packets marked Exhibits A to O sent to him and has detected blood on each of the exhibits marked A, B, C, D, E, H, K, L(I), L2, M and O and blood could not be detected on the packets marked exhibits F, G, I, J and N. P.W. 20 has proved the report of Dr. A.K. Sharma and identified his signature (marked as Ext.7/2).
24. The forensic report further establishes that Tupai was murdered on the first floor of the house most probably in the bathroom and thereafter laid on the bed.
25. On going through the report of Dr. A.K. Sharma, Senior Scientific Officer, Biology Department it is clear that the articles which were sent for analysis and found stain with blood of group AB which was that of Sourav Das alias Tupai.
26. The Appellant-accused except for denial has not given any explanation as to why prosecution witnesses have deposed against him or led any evidence in his defence that he was residing somewhere else to dislodge the prosecution case. Therefore, we find that the prosecution has established that the Appellant-accused has committed murder of victim Sourav Das alias Tupai.
27. It is pertinent to note that having gone through the trial Court''s record we find on March 24, 1999 after examination of the accused u/s 313 of the Code of Criminal Procedure, 1973, three dates viz. March 26, 1999, April 1, 1999 and April 5, 1999 were fixed for examination of the defence witnesses. However, on the failure of the defence to adduce any evidence, evidence was closed and the matter was taken up for argument. Therefore, it cannot be said by no stretch of imagination that the defence was not given any opportunity to adduce any witness in support of its case.
28. There is no merit in the appeal. The same stands dismissed.
I agree.
