Calcutta High Court
Banchit Guli Majhi vs State Of West Bengal on 19 September, 2006
Equivalent citations: 2006(4)CHN888
JUDGMENT P.N. Sinha, J.
1. The appellant in these two appeals has assailed the judgment and order of conviction under Section 302 of the IPC passed by the learned Additional Sessions Judge, 1st Court, Bankura in Sessions Trial No. 3(8)94 [Sessions Case No. 6(2)93] by which he was sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer R.I. for one year. The appeal being CRA No. 189 of 1999 was preferred by him from jail through the Superintendent of the concerned Correctional Home where he was lodged at the relevant time of preferring the appeal, and subsequently by engaging Advocate he has preferred the other appeal being CRA No. 394 of 1999. In fact, these two appeals preferred by the same appellant are directed against the same judgment and order of conviction.
2. The prosecution case, in short, is that on 14.9.1987 at 2.30 p.m. Sasanka Sekhar Guli Majhi came to the informant Baidyanath Guli Majhi (P.W. 1) and informed him that at about 2 p.m. his youngest daughter-in-law Smt. Menoka Guli Majhi (P.W.4) disclosed to him that on the said day at morning the hen of his second son Nalini Kanta Guli Majhi (P.W. 2) damaged the paddy of his youngest son Banchit Guli Majhi (appellant), and it resulted into a tussle between Gitarani, the second daughter-in-law of Sasanka Guli Majhi and appellant, and thereafter, the appellant murdered his second daughter-in-law Gitarani and fled away. After hearing about the incident Sasanka Guli Majhi visited the room of his second son and found that his second daughter-in-law was lying dead on the floor of the room. He found injuries caused by sharp weapon on her head and over her left eye and he further found that her neck was tied with one old brown coloured napkin of the appellant and her two legs were tied with one old black check lungi also of the appellant. Sasanka Gull Majhi after coming out of room of his second son did not find the appellant and his wife Menoka Guli Majhi. P.W. 1 after hearing the incident from Sasanka Guli Majhi came to the room of P.W.2 and found the deadbody of Gitarani lying on the floor of the room and also noticed the injury on her head, on the side of her eye and the napkin and the lungi of the appellant which were found tied on the neck and leg of the deceased. P.W.I thereafter submitted the written complaint/FIR (Ext. 4) before the Simlapal P.S. and on the basis of it Simlapal P.S. Case No. 3 dated 14.9.87 under Section 302/34 of IPC was started against the appellant and his wife Menoka Guli Majhi (P.W. 4).
3. During investigation, the Investigating Officer (in short I.O.) (P.W. 11) seized one 'katari' stained with blood from the house of the appellant and sent the wife of the appellant to the Court of the learned Magistrate for recording her statement under Section 164 of the Cr. PC and she was made a witness of this case. After completing investigation the I.O. submitted chargesheet against the appellant under Section 302 of the IPC. The trial that followed ended in conviction and sentence of the appellant as mentioned above.
4. In order to prove its case the prosecution examined 11 witnesses in all namely, P.W. 1 Baidyanath Guli Majhi (the informant), P.W. 2 Nalini Guli Majhi (husband of deceased), P.W. 3 Rasamoy Guli Majhi, P.W. 4 Menoka Guli Majhi (wife of appellant), P.W. 5 Magaram Roy, P.W. 6 Kripamoy Acharya, P.W. 7 Sukhdeb Layen, P.W. 8 Arun Chatterjee, P.W. 9 Prahlad Singh, P.W. 10 Ranjit Guli Majhi (brother of deceased) and P.W. 11 Prithwish Chatterjee (I.O.).
5. P.W. 1 lodged the FIR (Ext. 4) wherein it was mentioned by him that Sasanka Sekhar Guli Majhi (since deceased) disclosed to him on 14.9.87 at about 2 p.m. that his youngest daughter-in-law Menoka Guli Majhi (P.W. 4) informed him that in the morning on that day her husband Banchit Guli Majhi (appellant) murdered Gitarani, the second daughter-in-law of Sasanka Guli Majhi. In evidence P.W. 1 denied mentioning of such incident in the FIR and he was declared a hostile witness. In evidence he stated that Gitarani Guli Majhi was murdered, but he does not know who murdered Gita. She was murdered in her own house. Sasanka and Nalini Guli Majhi informed him about the murder and he visited the house of Nalini Guli Majhi (P.W. 2) and found Gita lying in pool of blood. He did not find the appellant and his wife in the house. Father of Banchit i.e. Sasanka did not disclose to him who murdered Gita. In the cross-examination by defence he stated that besides Sasanka none narrated to him about the incident of murder and that he did not submit FIR at the police station, but he submitted the FIR as per direction of the Officer-in-Charge of the police staton concerned.
6. P.W. 2, the husband of deceased stated that his brother Banchit murdered his wife when he was in the forest with his cattle. His wife was in the house which had common courtyard with the accused and at that time the accused Banchit and his wife were in the house. One Subhas Guli Majhi, a co-villager informed him about murder of Gita while he was in the forest. He rushed to the house and learnt from his father that the accused Banchit had murdered his wife. Entering into the room he found his wife Gita lying in pool of blood and her two legs were tied with lungi and neck with 'gamcha' i.e. napkin and the lungi and napkin belonged to accused Banchit. He then informed the matter to Baidyanath, member of Panchayat and he was sent to the Simlapal P.S. for lodging FIR. Police officer came to his house and held inquest on the body of Gita and thereafter he (I.O.) seized blood-stained earth, lungi, napkin from place of occurrence and also seized one 'katari' stained with blood from the house of accused Banchit. He stated that there was quarrel between Banchit and his wife relating to eating of wheat by their hen and goat and as a result of that quarrel accused murdered Gita. The cross-examination of P.W. 2 reveals that when he left for work in the morning, his father Sasanka, his wife Gita and Banchit and his wife were present in the house.
7. P.W. 3, a neighbour of P.W. 2 stated nothing in his evidence and was declared a hostile witness. P.W. 4 Menoka Guli Majhi, the wife of appellant in her evidence stated that Gita was the wife of elder brother of her husband and they used to reside in the same compound. She did not support the prosecution case and stated that she was not in the house when Gita was murdered and after returning from field she found that Gita was dead. Her husband was in the house bat she went for work in the morning. She denied her examination and recording of her statement by Magistrate under Section 164 of Cr. PC and was declared a hostile witness. She denied her production before the learned Magistrate two days after the incident for recording her statement and denied that she gave a statement to the Magistrate which was read over and explained to her and she put her LTI on such statement. In cross-examination by defence also she stated that she was not produced before the Magistrate of Bankura Court for recording any statement. She left for work at morning and returned back to house at 4 p.m. and her husband also went out for work with her in the morning and he remained with her till 4 p.m. She refused to state how Gitarani Guli Majhi expired.
8. P,W. 5 was a chowkidar of Machatorn village. His evidence reveals that he got information that the appellant Banchit Guli Majhl murdered Gitarani Guli Majhi and receiving such information he visited the house of Gita and found her deadbody. He did not find the accused and his wife in the house as by that time they had left their house. His cross-examination reveals that he only received information of murder of the victim and besides that he did not receive any other information.
9. P.W. 6 is a police officer who accompanied by another police officer arrested the accused on 19.9.87 and produced him before the Court. P.W. 7 is another police officer who was entrusted to take up investigation of the case. He received the FSL report and thereafter he was transferred from the Simlapal P.S. and did not take any step for further investigation.
10. P.W. 8 is a police constable who accompanied by his officer visited the house of deceased and after the inquest on the body of the deceased carried the deadbody to the morgue for post-mortem examination and also identified the deadbody before the autopsy surgeon. The wearing apparels of the deceased were produced before the Officer-in-Charge which were seized but those articles were not produced in Court. P.W. 9 was tendered only for cross-examination which was declined and this procedure of tendering a witness by the prosecution is deprecated and is not a sound practice.
11. P.W. 10 is the brother of the deceased and he in his evidence stated that he was informed of the incident by Raso Guli Majhi to the effect that his sister Gita was murdered by accused and thereafter the accused had fled away. Receiving such information he came to the village of his sister where she was married and came to house of P.W. 2 and saw the deadbody of Gita. On enquiry made by him he learnt from father of accused that accused had murdered Gita and thereafter the accused had fled away. He found that hands of the victim were tied with a lungi. There is nothing noteworthy in his cross-examination.
12. P.W. 11 is the police officer who made investigation into the case. His evidence gives us the picture that on the basis of oral complaint by Baidyanath Guli Majhi (P.W. 1) he reduced it into writing. After taking up investigation he visited the place of occurrence and recorded the statement of the witnesses and also held inquest on the deadbody of Gita Guli Majhi. He sent the deadbody to the morgue for post-mortem examination. He also prepared sketch map and he seized one 'katari' stained with blood from the house of accused Banchit Guli Majhi. He also seized one used napkin and one lungi which were used to tie the leg of the victim. He sent wife of accused before the learned Magistrate for recording her statement under Section 164 of Cr. PC. The blood-stained 'dao' was sent to FSL for examination along with other articles. Contradictions concerning statement of the witnesses who were declared hostile were taken from him by the learned Public Prosecutor in charge of the case. During cross-examination by defence this witness stated that he also made one G.D. Entry but the said G.D. Entry was not produced in Court. The 'katari' was seized from the house of accused as shown by Nalini Kanta Guli Majhi (P.W. 2) and Baidyanath Guli Majhi (P.W. 1).
13. Mr. Rash Behari Mahato, the learned Advocate for the appellant submitted that the Judicial Magistrate who recorded the 164 Cr. PC statement of P.W. 4 Menoka Guli Majhi and the autopsy surgeon who conducted post-mortem on the deadbody of Gita Guli Majhi were not examined. Without examining the Judicial Magistrate and the autopsy surgeon, the 164 Cr. PC statement and the post-mortem report cannot be admitted in evidence, and even if those are admitted, the contents of those documents cannot be looked into by the Court. P.W. 2 is the husband of the deceased and he was not present in the house at the relevant time of incident. His evidence is not sufficient to prove the prosecution case and to complete the chain of circumstances in this case which is based on circumstantial evidence. The FSL report shows that no blood could be detected on the 'dao' which was sent for chemical examination. The FSL report clearly gives a mortal blow to the prosecution case as blood could not be detected on the seized 'dao', allegedly the offending weapon used by the appellant.
14. Mr. Mahato further submitted that the evidence and circumstances which came before the Trial Court fails to establish chain of circumstances to lead to the inescapable conclusion that it was none but the appellant who caused the murder of Gita Guli Majhi. There was no legal proof in this case to establish the prosecution case. There was no reliable and acceptable evidence to prove the charge of murder against the appellant. The 164 Cr. PC statement cannot be used as substantive evidence when the maker of it herself did not state about giving statement before the Magistrate. Without examining the Magistrate in Court, the statement under Section 164 of Cr. PC allegedly made by P.W. 4 cannot be used in evidence. Besides that, the law is well-settled that 164 Cr. PC statement is not substantive evidence and cannot be used to base conviction. Such a statement is only corroborative in nature and when in this case there is no cogent and convincing legal and admissible evidence the said 164 Cr. PC statement of P.W. 4 cannot be the foundation of conviction. Suspicion, however, strong cannot be sufficient to base conviction. The learned Trial Court was wholly in error by convicting the appellant relying on the alleged 164 Cr. PC statement of P.W. 4.
15. Mr. Abhijit Auddy, the learned Advocate for the State submitted that there was no delay in lodging FIR. The witnesses namely P.W. 1, P.W. 2, P.W. 3 and P.W. 10 came to the place of occurrence immediately after the incident and heard about the incident and their evidence is admissible as res gestae under Section 6 of the Evidence Act. P.W. 2 is a very important witness and his evidence fully completes the chain of circumstances. The prosecution case was based on circumstantial evidence and from evidence of P.W. 2 as well as seizure of the offending weapon stained with blood, and seizure of napkin and lungi belonging to accused from the body of deceased further strengthens the prosecution case that it was none but the accused who caused the murder of Gita Guli Majhi. The murder of Gita Guli Majhi was an well-proved and well-established fact and the evidence and the circumstances accompanied by seizure of articles and FSL report proves the prosecution case. The learned Trial Court rightly held the appellant guilty and convicted him.
16. We have carefully perused the evidence and the materials on record and considered the submissions made by the learned Advocates for the parties. From the evidence it is clear that Gita Guli Majhi, wife of P.W. 2 was murdered and it is an established fact. We now like to appreciate the evidence and circumstances to show whether the prosecution was able to complete the chain of circumstances in order to establish its case which can lead to the irresistible conclusion that it was none but the appellant who was responsible for the murder of Gita Guli Majhi.
17. P.W. 2 is not an eye-witness of the incident. P.W. 1 did not support the prosecution case and his narration of incident in the FIR. It was stated by P.W. 1 in FIR that Sasanka Guli Majhi, father of accused and P.W. 2 disclosed to him that Menoka Guli Majhi (P.W. 4), his youngest daughter-in-law informed him that her husband Banchit Guli Majhi murdered Gita. Sasanka Guli Majhi accordingly had no knowledge of the incident of his own and he learnt it from P.W. 4. P.W. 1 learnt about the incident from Sasanka Guli Majhi which he narrated in the FIR. But in evidence P.W. 1 did not support the prosecution case and stated that he did not hear anything about the incident from Sasanka Guli Majhi. Sasanka Guli Majhi could not be examined as he expired before the trial actually commenced. P.W. 2 also stated that he learnt about the incident from his father Sasanka Guli Majhi. The chain as mentioned above clearly shows that Sasanka Guli Majhi derived his knowledge from P.W. 4 and accordingly the entire prosecution case depends upon the evidence of P.W. 4.
18. P.W. 4 in her evidence did not support the prosecution case and was declared hostile witness. Her evidence reveals that on that day she left house at morning for work and returned at 4 p.m. and found that her 'ja' i.e. sister-in-law had already been murdered. She further stated that her husband i.e. the appellant also left house at morning with her for work and he also returned at 4 p.m. P.W. 4 was also produced before a Magistrate who recorded the statement of P.W. 4 under Section 164 of Cr. PC. P.W. 4 in her evidence denied of her production before the Magistrate and making statement under Section 164 of Cr. PC. We find that the prosecution did not take pains to prove the Section 164 Cr. PC statement of P.W. 4 in accordance with law. When P.W. 4 denied making of statement before Magistrate under Section 164 of Cr. PC the Public Prosecutor-in-Charge of the case ought to have confronted to her the entire statements made by her before the learned Magistrate who recorded such statement under Section 164 of Cr. PC. Merely stating to her that she was produced before a Magistrate and a Magistrate recorded her statement and it was read over to her and she put her LTI is not sufficient. The Magistrate who recorded statement of P. W. 4 under Section 164 of Cr. PC was not examined by the prosecution in Court. The alleged 164 Cr. PC statement was not even shown to P.W. 4 when she was examined as a witness in Court. We find that the learned Trial Court after closure of recording of evidence of witnesses at the stage of argument of the case on the basis of prayer of Public Prosecutor-in-Charge marked the 164 Cr. PC statement of P.W. 4 as Ext. 10. Without confronting the contents of 164 Cr. PC statement to its maker, the prosecution cannot use such 164 Cr. PC statement and Trial Court cannot look into the contents of such 164 Cr. PC statement.
19. The 164 Cr. PC statement is not a substantive evidence and it is only corroborative evidence. When there is no proper, cogent and convincing evidence, the said 164 Cr. PC statement which was not proved in accordance with law as being not confronted to its maker, who resiled from it in her evidence in Court, cannot be the basis ofconviclion in this case. The statement of P.W. 4 was the main thread of the chain of circumstances over which the prosecution case rested, but the said 164 Cr. PC statement alone cannot be the basis of conviction.
20. Statement recorded under Section 164 of Cr. PC can never be used as substantive evidence of the facts, but it may be used for contradiction or corroboration of the evidence of witness who made it. In Balak Ram v. State of U.P. , it was held that the evidence of a witness cannot be discarded for the mere reason that his statement was recorded under Section 164. It is, of course, open to the Court to accept the evidence of a witness whose statement was recorded under Section 164, but the salient rule of caution must always be borne in mind. In Ram Charan v. State of U.P. , the Supreme Court relied upon the observation of the Andhra Pradesh High Court in Re: Gopisetti Chinna Venkata Subbiah AIR 1955 Andhra 161 which runs as follows:
We are of opinion that if a statement of a witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon.
21. The Supreme Court in Ram Kishan Singh v. Harmit Kaur , observed that a statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness and it can be used to contradict a witness. In Dhanabal v. State of Tamil Nadu , a three-Judges Bench of the Supreme Court held that, the 164 Cr. PC statement that is recorded has the endorsement of the Magistrate that the statement had been made by the witness. The mere fact that the police had reasons to suspect that the witnesses might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded, tainted. If the witness sticks to the statement given by him to the Magistrate under Section 164 Cr. PC no problem arises. If the witness resiles from the statement given by him under Section 164, the witness can be cross-examined on his earlier statement.
22. In Dhanabal v. State of Tamil Nadu (supra) the Supreme Court discussed some authorities how a statement of a witness recorded under Section 164 of Cr. PC can be used by prosecution when the witness resiles from his statement earlier recorded under Section 164. The Supreme Court considering the decisions in Tara Singh v. State of Punjab , Bhaskar Singh v. State of Punjab and State of Rajasthan v. Kartar Singh held that:
It is thus clear from the authorities referred to above that the requirements of Section 288 would be fully complied with if the statements of the witnesses are read in extenso to them and they admit that they have made these statements in the committal Court.
23. The principle of law discussed above make it clear that 164 Cr. PC statement of the witness is not substantive evidence but the same is only corroborative in nature. If the witness whose statement was recorded earlier while giving evidence in Court sticks to his earlier statement recorded under Section 164 it can be acted upon subject to the rule of caution. When the witness resiles from his earlier statement under Section 164 of Cr. PC, the procedure is that the witness should be cross examined and the earlier statement recorded under Section 164 of Cr. PC should be read in extenso to the witness, and then only the prosecution can place reliance on such statement and that too subject to rule of caution and if there are other sufficient evidence before the Court. In the present case before us the Magistrate who recorded the statement of P.W. 4 was not examined by prosecution. During her examination the learned Public Prosecutor-in-Charge of the case did not read over the contents of the entire 164 Cr. PC statement to P.W. 4. As the contents of the 164 Cr. PC statement were not read over or confronted to P.W. 4 when she was examined in Court and who resiled from her such earlier statement, the 164 Cr. PC statement cannot be the basis of foundation of conviction of appellant in this case.
24. In this case, only the circumstances relating to recovery of bloodstained 'dao' as alleged from the room of appellant and finding of napkin and lungi of appellant on the body of the deceased are not sufficient to complete the prosecution chain of circumstances. The FSL report (Ext. 2) reveals that no blood could be detected on 'dao' and lungi. Any other man after murder can keep the 'dao' in the room of appellant and the lungi and napkin on the body of deceased. P.W. 2's evidence has no evidentiary value being merely hearsay as he heard from his father. His father Sasanka Guli Majhi in his turn learnt about the incident from P.W. 4 Menoka Guli Majhi. P.W. 4 in her evidence did not support the prosecution case. Naturally, the knowledge derived by P.W. 2 from his father fails to stand as the ground of knowledge of his father becomes negative when P.W. 4 did not support the prosecution case. The Section 164 statement of P.W. 4 cannot be used to base the conviction in view of our discussion made above. Besides that, non-examination of autopsy surgeon is also fatal for the prosecution as there is no opinion as to the cause of death and the weapon used in causing such bodily injury as were found on the person of deceased. The neighbours namely P.W. 1, P.W. 3 did not support the prosecution case and nothing favourable in favour of prosecution transpired from their evidence. Even the chowkidar (P.W. 5) could not throw any light before the Court as he heard about the incident and did not disclose from whom he heard such incident and his cross-examination make it further clear that he received only the information of murder of victim and nothing more. Evidence of P.W. 10 does not improve the fate of the prosecution case as he also allegedly learnt from father of accused and we have already discussed that the main source of information i.e. P.W. 4 when did not support the prosecution case, the knowledge of father of accused and P.W. 2 fails to stand in this case. Evidence of P. W. 10 also accordingly fails to establish the chain of circumstances. The entire evidence and circumstances make it clear that prosecution could not complete the chain of circumstances to lead to the inescapable or irresistible conclusion that it was none but the appellant who was responsible for the murder of Gita Guli Majhi.
25. The law is well-settled that suspicion, however, strong cannot be the basis of conviction. In this connection we place reliance on a decision of this Court in Jharu Mondal v. State 2006(2) All India Criminal Law Reporter 159. The evidence and circumstances as has been discussed by us above make it clear that there are shadows of doubt in the prosecution case and prosecution could not prove its case beyond all reasonable doubts against the appellant. The appellant is definitely entitled to the benefit of doubt in this case. The prosecution failed to bring home its charge against the appellant. The learned Trial Court was in error by placing his reliance on the 164 Cr. PC statement of the witness Menoka Guli Majhi to base conviction of the appellant. The appellant is found not guilty under Section 302 of the IPC and is acquitted of the charge.
26. The appeals accordingly succeed and are allowed. The judgment and order of conviction and sentence passed oy the learned Trial Court are set aside. The appellant is found not guilty under Section 302 of the IPC. He is hereby acquitted and set at liberty, if not wanted in connection with any other case.
27. Send a copy of judgment to the Inspector General of Prisons, Government of West Bengal at Writers Buildings, Calcutta through the Registrar General, High Court for onward communication to the Superintendent of concerned Correctional Home and convict/appellant Banchit Guli Majhi in the particular Correctional Home where he is lodged at present for information and necessary action.
28. This judgment and order will govern both the appeals being CRA No. 189 of 1999 and CRA No. 394 of 1999.
29. Criminal section is directed to send down the Lower Court records along with copy of judgment and order to the learned Trial Court for information and necessary action.
P.S. Datta, J.
30. I agree.