Bhaku Gorain . vs The State Of West Bengal

2023INSC821 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 20 OF 2014

BHAKTU GORAIN & ANR. …APPELLANTS

VERSUS

THE STATE OF WEST BENGAL …RESPONDENT

J U D G M E N T

PANKAJ MITHAL, J.

1. Heard Shri Ranjan Mukherjee and Ms. Astha Sharma, learned

counsel for the parties.

2. In Sessions Trial No. 05/1998 arising from Sessions Case No.

37/1997 pursuant to the FIR No.110/1993 lodged under

Signature Not Verified Sections 341, 302 read with 34 of IPC at Jhalda Police Station, Digitally signed by Anita Malhotra Date: 2023.09.12

Purulia, by one Lakshmi Mahato, the eldest son of the 17:09:11 IST Reason:

deceased-Smt. Keshari Mahato, all the five accused persons 1 namely; Bhaktu Gorain (A-1), Surendra Gorain (A-2), Bandhu

Gorain (A-3), Ranjit Gorai (A-4) and Rajen Gorain (A-5) were

convicted and sentenced to rigorous imprisonment for life

with a fine of Rs.1000/- each, in default of payment of which

they were directed to serve further imprisonment of one

month each. The above judgment and order of the conviction

and sentencing the accused persons has been affirmed by the

High Court vide judgment and order dated 21.07.2010.

3. All the accused persons assailed the above conviction i.e.

judgments and orders of the High Court and the trial court by

filing the Special Leave Petition wherein leave was granted on

03.01.2014. The appeal against A-2, A-4 and A-5 was

dismissed vide order dated 25.11.2011. Therefore, presently

the appeal is concerning A-1 (Shri Bhaktu Gorain) and A-3

(Shri Bandhu Gorain) only.

4. The aforesaid FIR was lodged at 08:45 a.m. on 27.09.1993

alleging that the incident in which the mother of the

informant/complainant was put to death had occurred early

in the morning at around 06:00 am. The five accused persons

2 surrounded (gheraoed) the deceased Smt. Keshari Mahato,

the widowed mother of the complainant, and her daughter-in-

law Smt. Bijali Mahato, who were returning from the pond

after performing their daily ablutions. The accused persons

were armed with tangi, tabala and lathi. Upon hearing the

screams of the deceased and her daughter-in-law, the

complainant along with his brothers Sudhir Mahato (PW-2),

Rampada Mahato (PW-3) and the uncle’s son Pratham

Mahato (PW-5) rushed out of their house which was hardly 30

cubits away and found the accused persons assaulting the

deceased on her head. The deceased instantly fell down and

died on the spot. The accused persons made good their escape

from the place of occurrence.

5. The Investigating Officer reached the place of occurrence and

prepared an Inquest Report (Ext.2) of the dead body, seized

the incriminating article (Ext.5), examined the witnesses and

recorded their statements under Section 161 CrPC and

prepared a sketch map (Ext.4) of the place of occurrence. The

post-mortem was conducted by Dr. A.K. Hazari (PW-9) around

3 2 pm on the same day. All the accused persons were arrested

by the police on 04.10.1993.

6. Admittedly, Lakshmi Mahato (PW-1), the informant, Sudhir

Mahato (PW-2) and Rampada Mahato (PW-3) are the sons of

the deceased and are the eye witnesses to the incident. Bijali

Mahato (PW-4) is the daughter-in-law of the deceased [wife of

Lakshmi Mahato (PW-1)] and is one another eye witness of the

incident. Pratham Mahato (PW-5) is the nephew of the victim

Raghu Mahato (PW-6) is a post-occurrence witness. Binode

Mahato (PW-7) is the father-in-law of Krishna Chandra

Mahato, one another brother of the informant who was

visiting the house of the deceased due to karam puja and as

such had an occasion to witness the heinous crime. The

presence of Raghu Mahato (PW-6) and Binode Mahato (PW-7)

has been established by the evidence of Sudhir Mahato (PW-

2). The scribe of the FIR Subhash Mahato was examined as

(PW-8). Dr. A.K. Hazari who conducted the post-mortem

examination on the body of the deceased was examined as

PW-9 whereas Sub-Inspector Santosh Kumar Das who was

on duty at the police station and had received the complaint 4 was examined as PW-10. The Investigating Officer of the case

had died and as such could not be examined.

7. The contents of the FIR (Ex.1) were proved by the ocular

evidence of Lakshmi Mahato (PW-1). He stated that he rushed

to the place of occurrence along with his brothers upon

hearing the screams of the deceased and his wife and upon

reaching the spot they witnessed that the deceased had been

stopped and surrounded (gheraoed) by the accused persons

whereupon Surendra Gorain (A-2) and Bhaktu Gorain (A-1)

assaulted her with tangi and tabala on her head whereas

Ranjit Gorain (A-4) assaulted her with lathi on her right hand,

consequently, the deceased fell down on the ground and died

instantaneously.

8. The aforesaid witness also testified that on the previous night,

all the above five accused persons called the deceased a witch

(diayen) who is the cause of trouble to the villagers as she

used to indulge in witchcraft. Her activities have caused

suffering to the wife of Surendra Gorain (A-2) who was not

keeping good health for some time. The place where deceased

5 was killed was near the house of one Buka Mahato. He

identified all the accused persons while they were in the court

room.

9. The testimony of Lakshmi Mahato (PW-1) was corroborated by

Sudhir Mahato (PW-2). He even corroborated the incident of

the previous night wherein the deceased was abused for

practicing witchcraft and alleged to be the cause of trouble to

the villagers particularly to the wife of Surendra Gorain (A-2).

He also stated that the place of incident was only at a distance

of 40-50 cubits from their house and they have reached the

spot instantly upon hearing the screams. Rampada Mahato

(PW-3) categorically proved that when he reached the place of

occurrence upon hearing the screams of his mother and that

of his elder brother’s wife Bijali Mahato (PW-4), he saw

Surendra Gorain (A-2) assaulting his mother by a tangi,

Bhaktu Gorain (A-1) by tabala and Ranjit Gorain (A-4) by lathi

on the head whereupon his mother fell on the ground and

died.

6

10. Bijali Mahato (PW-4) in her testimony stated that after

washing their face etc. she was returning with her mother-in-

law to her house but on the way back, they were intercepted

by all the five accused persons who surrounded (gheraoed)

them and assaulted the mother-in-law with the weapons

possessed by them in front of the house of Biju Mahato. Her

mother-in-law fell down and died instantly. She also stated

that there was a quarrel between her mother-in-law and the

five accused persons on the previous night.

11. It may be pertinent to mention here that all the aforesaid

witnesses successfully stood the test of cross-examination

and nothing could be extracted from them in cross-

examination that could discredit their testimony. The

credibility of the above witnesses is not in doubt and in fact

they are wholly reliable witnesses in the facts and

circumstances of the case.

12. In addition to the above witnesses, there is one chance

witness Raghu Mahato (PW-6). He rushed to the place of

occurrence upon hearing the shouting of “Mario Mario”, he

7 found all the accused persons proceeding towards their house

on the south with the weapons in their hands. He saw the

deceased lying dead in front of the house of Buka Mahato. His

evidence could not be demolished in cross-examination. He

had signed the Inquest Report (Ext.2) as a witness.

13. Dr. A.K. Hazari (PW-9), who conducted the post-mortem

cross-examination, proved the post-mortem report and the 3

injuries reported therein. The said injuries are as follows:

“1). Incised wound over left side face, orbit and frontal region, vertically placed, measuring 6" x 1" bone cut.

On dissection, muscle left eye-ball cut, left xygomatic bone and frontal bone (left side) cut. Intracrtranial haemorrhage was present.

2). Incised would over occipital region, transfersely placed, measuring 6" x 2" x bone cut.

On dissection, blood-clots were present.

Occipital bone cut and intractranial hemorrhage was present.

3). Swelling over right fore-arm.

On dissection, fracture both bone of mid-

shaft of right forearm present.”

14. He had opined that injury Nos.1 and 2 might have been

caused by sharp cutting weapon like tangi, tabala etc. and

8 that injury No.3 might have been caused by hard and blunt

substance like lathi. The cause of death was stated to be

shock and hemorrhage as a result of the aforesaid injuries

which was ante-mortem and homicidal in nature. The tangi

which was the only weapon recovered was shown to him in

open court and he opined that injury Nos.1 and 2 could have

been caused by that type of weapon.

15. In view of the above evidence and some other evidence which

is not very material and worth referring, it is evident that all

the witnesses have proved that all the five accused persons

have surrounded (gheraoed) the deceased and her daughter-

in-law Bijoli Mahato in the early hours of the day while they

were returning to their home after performing their day’s

routine at the pond and had assaulted the deceased with

tangi, tabala and lathi on her head due to which she fell down

and died instantaneously. The injuries she received were

enough to cause death.

16. The submission on behalf of the appellants is that they never

had any common intention to kill the deceased and that they

9 simply wanted to teach a lesson to the deceased so that she

may not indulge in her practices of witchcraft in future.

17. The submission is devoid of any merit as admittedly an

altercation had taken place between the parties on the

previous night in which all the five accused persons were

present and it is in furtherance of the said quarrel that all of

them had appeared in the morning with reinforced vengeance.

The very fact that they had assembled in the morning and

surrounded (gheraoed) the deceased with deadly weapons is

sufficient indication to infer that they had surrounded

(gheraoed) in a pre-planned manner with a pre-determined

mind. Thus, the submission that they had no common

intention stands completely ruled out. Moreover, the nature

of injuries which have been caused on the head of the

deceased with the deadly weapons proves that they had

assembled with the common intention and not merely to

threaten her or to deter her from practicing witchcraft.

18. Notwithstanding that two of the accused persons Bandhu

Gorain (A-3) and Rajen Gorain (A-5) had no weapons with

them or might not have assaulted the deceased but certainly

10 they were part of the team that surrounded (gheraoed) the

deceased with the common intention to kill after they had an

altercation with her the previous night on the subject of

practicing witchcraft.

19. In the light of the above clinching evidence and in the absence

of any specific lacuna in the testimony of the witnesses and

the documentary evidence adduced, we are of the opinion that

the trial court had not committed any error in convicting and

sentencing the accused persons with imprisonment of life.

The conviction and sentence have rightly been affirmed by the

High Court.

20. It may not be out of context to mention that the detention

certificates of Bhaktu Gorain (A-1) and Bandhu Gorain (A-3)

issued by the Superintendent of Midnapore Central

Correctional Home, Paschim Midnapore, on 28.10.2022

certifies that they have served a total period of 15 years, 9

months & 24 days and 11 years, 7 months & 5 days (without

remission) respectively as on the date of the certificate. They

are, therefore, permitted to seek remission in accordance with

the prevailing policy of the State and it is expected that if any

11 such application/representation is made by them, it shall be

duly considered on its own merits. The application shall be

decided in accordance with applicable policy within three

months from the date of filing.

21. In the facts and circumstances of the case, the Appeal lacks

merit and is dismissed with the above observation.

……………………….. J.

(ABHAY S. OKA)

……………………….. J.

(PANKAJ MITHAL) NEW DELHI;

SEPTEMBER 12, 2023.

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