Calcutta High Court (Appellete Side)
Mangal Hembram vs The State Of West Bengal on 30 July, 2015
Author: Nadira Patherya
Bench: Patherya
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Patherya
And
The Hon'ble Justice Indrajit Chatterjee
CRA NO. 104 of 2006
Mangal Hembram
-vs.-
The State of West Bengal
For the Petitioner : Mr. Subhasish Roy
For the State : Mr. Manjit Singh .............Public Prosecutor,
Mr. Ranabir Roychowdhury
Heard On : 13.05.2015, 14.05.2015, 15.05.2015, 15.06.2015,
16.06.2015, 17.06.2015.
Judgment on : 30.07.2015
Indrajit Chatterjee, J. : This appeal has been directed as against the judgment
and order of conviction passed by the learned Additional Sessions Judge, 3rd
Court, Paschim Medinipur, in Sessions Trial No. III/April/2004 which arose out
of GR case No. 927 of 2003 (Goaltore P.S case No. 49/2003) of the learned Sub-
Divisional Judicial Magistrate, Sadar at Medinipur in which the learned Trial
Court was pleased to convict the present appellant before us in respect of the
charge punishable under Section 302 of the Indian Penal Code (hereinafter called
as Code) for murdering his wife the first victim Durgamani and the said
accused/appellant was also found guilty in respect of the charge punishable
under Sections 307and 326 of the Code and for attempting to commit the murder
of the other victim Astam Hembram and also for causing grievous hurt to him by
a dangerous or sharp cutting weapon. The appellant was sentenced to suffer life
imprisonment and also directed to pay fine of rupees two thousand in default
rigorous imprisonment for six months for the offence under Section 302 of the
said Code and in addition to that the said accused was sentenced to undergo ten
years rigorous imprisonment for the charge punishable under Sections 307/326
of the said Code and was further sentenced to pay fine of rupees two thousand in
default to suffer rigorous imprisonment for six months in respect of those
charges. It was further ordered that the sentences will run concurrently.
The prosecution case at the time of trial can be stated thus that the
present appellant and Durgamani were husband and wife, but their marital life
was clouded as one extra marital relationship developed between Dugamani and
Astam Hembram (PW 14) which was not naturally accepted by the appellant and
that enraged him. The incident took place in the night of 25.06.2003 in between
19.30 hours and 22 hours near one "Tal Bagan" in the village where the victim,
appellant and Astam used to reside that is village Dhobasole, within Goaltore
police station. The crime came to light as the second victim of the case Astam
survived the brutal attack on him by the appellant and allegedly by two other
unknown persons.
Astam was assaulted by the appellant by one axe/tangi causing injuries on
the front of his neck, on his left eyes, right forearms, left hand, left shoulder, left
arm and left side of the scapula region. The appellant thought him to be dead.
The appellant uttered at the time of assault that 'he had finished his wife
Durgamoni and he would also finish him'. Astam at first became senseless but
later on regained his senses and somehow reached his house and cried out to his
mother. She also cried out. Then Lakhindar Murmu (PW 5), Labin (not examined)
and PW 18 Kanai Murmu (one member of the Panchayat) came there. The injured
victim was taken at first to Garbeta Rural Hospital, where he was treated by PW
24 Dr. Abanti Saha, when this victim told the doctor that he was assaulted by
Mongal. The doctor gave him primary treatment and he was thereafter referred to
Bishnupur Sub-divisional Hospital, from there he was taken to Medical College
and Hospital at Bankura wherefrom he was discharged after one month.
The dead body of Durgamani could be located on that "Tal Bagan" and one
deep penetrating wound 2½ X 1½ X 4½ (deep) was found on the back of the neck
at the level of first and second cervical vertebrae, there was also another wound
on the left palm 2" X 1" and the index finger of the said victim was found to be
fractured. Inquest was conducted on the dead body of Durgamani, post mortem
examination was also done, the sketch map was also prepared (Exhibit 15) and
post mortem report was collected which was marked as exhibit 19 on consent
under Section 294 Cr.P.C. The present appellant was arrested on 26.03.2003 and
he made a statement before the investigating officer and a portion of that
statement was marked as exhibit 14 under Section 27 of the Evidence Act.
Pursuant to that statement the offending weapon was recovered as per seizure
list dated 30.06.2003 (exhibit 7). The offending weapon was one Tangi (Axe) but
the butt of that Tangi could not be located and only the metal portion was
recovered from the place as mentioned in the seizure list as shown by the present
appellant. Along with that weapon of offence one green colour napkin with marks
of blood was also recovered. During the course of investigation other articles were
seized like the wearing apparel of the victim. It may also be mentioned that as
shown by the appellant some controlled earth was seized as per seizure list dated
30.06.2003. The I.O of this case after investigation submitted charge-sheet
against the accused for the offence punishable under Sections 302, 326 and 307
of the Code. The accused was committed to the Court of Sessions and Sessions
Case No.49 of 2003 was registered which was tried by the learned Additional
District and Sessions Judge, 3rd Court, Pashim Medinipur as Sessions Trial
No.III/April/2004.
Charge was framed against the accused for the offence punishable under
Section 302, 307 and 326 of the Code on 21.04.2004 and trial started. During
the trial the prosecution examined as many as 25 witnesses including the I.O,
doctors and the star witness of the case Astam Murmu. The defence came up
with the 'alibi' that at the time of the incident the appellant was in a video hall
and one Labin passed the death news of his wife but this 'alibi' was not proved by
the accused as Labin was not examined. This claim was made by the appellant
when he was examined under Section 313 Cr.P.C. The appellant has however not
denied that Durgamani was his wife and he claimed that there was extra marital
relationship between Astam and his wife.
Thus, in this appeal we are to consider whether it was the appellant who
committed the murder of the deceased victim Durgamani and that whether it was
this appellant who made an attempt on the life of the second victim that is Astam
Murmu.
Before we start we can say that there cannot be a conviction in respect of
the charge both under Sections 307 and 326 of the Code in respect of the crime
perpetrated on the second victim Astam. Section 307 of the Code being a graver
section compared to Section 326 of the Code the appellant ought not to have
been charged under Section 326 of the Code. The conviction of the present
appellant in respect of the charge under Section 326 of the Code is redundant in
view of his conviction under Section 307 of the Code as the victim is only one
person being Astam Murmu. The important witnesses of this case are Astam
Murmu (PW 14), Kanai Murmu (PW 18), Lakhindar Murmu (PW 5), Dr. Abanti
Saha (PW 24), S.I Prabir Sarkar, the investigating officer of this case (PW 23),
Swapan Sannigrahi (PW 10) witness to the seizure list and Jamuna Murmu (PW
12), mother of Astam and the other partially important witnesses are the parents
of the victim Durgamani that is (PW 20 and PW 21) and Kinkar Das (PW 1) FIR
maker.
Thus, while appreciating this appeal we are to reappreciate the evidence on
record, in this regard the direction of the Apex Court as given in (2002) 4 SCC
57 Rama Vs. State of Rajasthan may be taken into consideration.
Let us start that the evidence of the star witness of this case, PW 14
Astam. He deposed that the present appellant is his co-villager and he duly
identified him. He further deposed that before 10 or 11 months when he was
proceeding towards a nearby school for taking rest in the night after taking food
then Mongal caught hold of him and took him to one "Tal Bagan" and he
assaulted him with a "Tangi" on his throat, left shoulder and scapula and the
witness showed the Trial Court the cut mark on his left and right hand, throat
with scar of swelling stitches and he also deposed that the appellant uttered
before him that he had finished his wife Durgamani and he also told him that he
would finish him and thereafter Mongal left the place thinking this witness to be
dead. This witness somehow regained his senses and cried out, went to his
house, his mother also cried out and hearing the cry, Lakhindar Murmu, Labin
and Kanai came to his house and he disclosed the incident to them. Then the
said witness was taken to the hospital where he also narrated the incident to the
doctor. It is also clear from his evidence that he reported the matter to his
mother. It is clear from his evidence that he was at first taken to Garbeta Rural
Hospital, thereafter, he was taken to the Bishnupur Hospital and from there he
was taken to Bankura Hospital, where he was admitted for about one month. He
also admitted that Mongal suspected that he had illicit relationship with his wife.
Now let us turn to the evidence of his mother PW 12 who deposed that
Astam is her son and he was going to sleep in a nearby school after taking his
meal in the night and after sometime Astam returned and cried out that he was
assaulted and stabbed. Astam divulged before her that Mongal assaulted him
and Astam also told her that "Mongal had finished Durgamani and that he would
finish Astam also by Tangi". She also deposed that Mongal took him to a nearby
"Tal Bagan" and the accused was duly identified on dock. It is clear from her
evidence that Lakhindar Murmu and Labin took Astam to hospital and she (P.W
12) also accompanied them.
Now let us have a glimpse at the evidence of PW 18 that is Kanai Murmu.
This witness deposed as to the murder of Durgamani but admittedly this witness
is not an eye witness. It is clear from his evidence that on hearing the shout of
the mother of Astam he had been to the P.O and found that Astam sustained
severe injuries and arranged a bullock cart to send him to Garbeta. The evidence
of this witness that he had been to the P.O is not matching with the evidence of
Astam and her mother. The story of bullock cart is at a variance with the
evidence of Jamuna PW 12 who deposed specifically that the victim was taken on
a trolley van and it is more convincing and cogent evidence. It is difficult that
such a victim was carried to a hospital in a bullock cart in the dead of night with
so many injuries.
Now let us turn our eyes to the evidence of Lakhindar Murmu, PW 5 who
deposed that he came to learn about the incident from Astam who told that
Mongal had assaulted him. This witness did not depose regarding the extra
judicial confession made by Mongal that he had finished his wife.
It may be mentioned that Labin was not examined either by the
prosecution or by the defence even though the defence took a positive plea that it
was Labin or Nabin who divulged at first to this appellant that his wife had been
murdered.
PW-20, that is the mother of the victim Durgamani, deposed that there was
illicit relationship between Durgamani and Astam but that was denied by her
husband (PW-21). Nothing came out through the evidence of these witnesses and
their evidence needs no further discussion. Another important witness is Dr.
Abanti Saha (PW-24) who on 26.06.2003 was posted as the Medical Officer of
Garbeta Rural Hospital and on that date he examined the patient that is the
victim Astam at about 05:40 am. At that time the patient was conscious and
stated to him that he was assaulted by Mangal Hansda who attacked him with a
'Tangi'. The said doctor found in all seven injuries both incised and lacerated on
different portions of the body of Astam as noted in the injury report, Exbt. 18 and
in his evidence. Injury 1, 5 and 7 were very dangerous in nature. This doctor
referred the victim to Bishnupur Hospital, the injury report which this doctor
proved was marked as exhibit 18. Much was argued by the defence that the
doctor did not write in his report that the victim was conscious but the doctor in
his cross-examination stated that it is true that it was not written in the injury
report that the patient was conscious but he illustrated it by saying that patient
himself divulged said aspect to him in person and as such we can safely say that
when this victim came to the doctor he was conscious.
Let us have a glimpse as to the evidence of PW-1 that is the FIR maker and
he deposed that he heard about the incident from Kamal Hansda that Durgamani
had been murdered and another injured was forwarded to hospital and he duly
identified his signature on the written complaint which was marked as exhibit-1
but unfortunately for him PW-2 Kamal Hansda did not depose that he relayed the
matter to this PW-1. Be that as it may, in the instant case before us the FIR has
little role to play except that it set the law in motion.
PW-10 is Swapan Sannigrahi who deposed by identifying Mangal Hansda
who was brought by the police to one 'Talbagan' for recovery of an incriminating
substance and Mangal had recovered one Tangi and one Napkin from that place.
He further deposed that police prepared a seizure list and he signed thereon. This
witness also proved the seizure list regarding the seizure of one short pant of
accused Mangal Hansda. This witness cannot be disbelieved as no animosity was
levelled against him. Simply the suggestion that he was deposing falsely at the
behest of the police is not enough to disbelieve one witness unless some special
interest to implicate him falsely is proved. PW-23, is the Sub-Inspector of Police,
Prabir Sarkar, who deposed that he received one telephonic message from PW-1
on 26.06.2003 that one woman Durgamani was lying dead beside a jungle and
another person Astam was admitted in a nearby hospital after sustaining severe
injuries and thereafter he along with the Officer-in-Charge of Goaltore police
station went to that place and there they received the written complaint from PW-
1 and he was asked to investigate the case by the O.C Goaltore P.S. The FIR was
forwarded to Goaltore police station for starting a case and Goaltore Police
Station Case no.49 of 2003 dated 26.06.2003 was started and he took up the
investigation. During the course of investigation this witness prepared a rough
sketch map with index, examined the available witnesses and also prepared the
inquest report on the dead body of Durgamani, the inquest report was marked as
exhibit 3/2. The striking feature of his evidence is that he arrested accused
Mangal on 26.06.2003 at 18:30 hours and he recorded his statement and the
relevant portion of that statement was marked as exhibit 14. This witness also
came to prove the recovery of 'Tangi' as identified by the present appellant, he
collected the injury report issued by Garbeta hospital (Exbt. 18) and the bed head
tickets of Bishnupur hospital (marked as exhibit 16 collectively) and also
collected the injury report of the said victim from Bankura Medical College and
after investigation he submitted charge-sheet against the accused appellant on
20.09.2003 for the offence punishable under Section 302, 307 and 326 of the
Code. We have more or less travelled through the evidence of important witnesses
and need to consider the argument put forward by the learned Counsels of the
parties.
At the time of hearing the learned lawyer appearing on behalf of the
defence attacked the prosecution case on the following points:
1.That the Charge is defective as it does not reflect the time, said crime was committed which is in clear violation of Section 212 Cr.P.C.
2. That there is nothing on record to show that the death was homicidal as the doctor did not opine as such.
3. The Initial information, given by PW-1 to the police over phone, was suppressed which should have been treated as the FIR.
4. The prosecution witnesses contradicted themselves on material points.
5. Extra judicial confession cannot be believed considering the fact that it is the weakest piece of evidence and that Mongal and Astam were in inimical terms.
6. That the recovery was made before the statement under Section 27 of the Evidence Act was recorded.
7. That there is no direct evidence that the appellant caused injuries to the victim Durgamani leading to her death.
8. Assault on PW-14 by the appellant cannot be believed as PW-14 was either unconscious or semi-conscious and as such it was not possible for him to identify the assailant.
9. Injury report was interpolated as regards the date and time of the incident.
10. That the injuries of PW-14 were of two types which was caused by hard and sharp cutting instrument.
11. Nabin was not examined.
12. Alternative argument was also made by him, that the conviction under Section 302 may be reduced to a conviction under Section 304 Part II of the Code considering the fact that what the victim did (even not admitting the same) was out of grave and sudden provocation as Durgamani had developed illegal intimacy with Astam.
He cited the decision of the Apex Court as reported in:
No. 1 : 2004 SCC (Cri) 126 (The State of Haryana vs. Jagbir Singh and Anr.) wherein the Apex Court accepted the version of the High Court of Haryana that an extra judicial confession was not voluntary as the accused was taken to various places and at different points of time and he was being pressurized to make a statement. This decision is not matching with the fact and circumstances of this case as the story of putting pressure on the accused at the time of making of extra judicial confession is nowhere in the evidence on record. No. 2 : (2012) 3 SCC (Cri) 146 (Sahadevan and Anr. Vs. the State of Tamil Nadu) wherein the Apex Court has illustrated the value of extra judicial confession. In this decision it was held by the Apex Court that extra judicial confession must be established to be true, made voluntarily and in a fit state of mind. It was further held that an extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
No. 3 : AIR 1975 SC 258 State of Punjab Vs. Bhajan Lal Singh and others wherein also the value of extra judicial confession was considered. No. 4 : AIR 1974 SC Page 1545 Jagata Vs. State of Haryana where in the Apex Court in Paragraph 14 held that an extra judicial confession is in the nature of things a weak piece of evidence.
No. 5 : AIR 2003 SC (Cri) 1965 State of Rajasthan Vs. Raja Ram wherein also the value of extra judicial confession was considered by the Apex Court and in paragraph No.19 the Apex Court held "an extra judicial confession, if voluntary and true and made in a fit state of mind can be relied upon by the Court".
On behalf of the prosecution it was submitted by Mr. Ranbir Roy Chowdhury that the charge cannot be said to be defective for non- mentioning of time as it did not cause any prejudice to the accused appellant. It was further submitted by taking us to Sections 215 and 464 of the Criminal Procedure Code that those two sections are curative sections and defects in the charge cannot have any role in a criminal trial unless it is shown that any prejudice was caused.
(1) That the case of murder of Durgamani is purely based on extra judicial confession made by the accused appellant to PW 14 and duly corroborated by PW 4, to whom PW 14 disclosed the matter. He further submitted that there was no inimical relationship between the appellant and PW 4, who can safely be relied upon.
(2) That the injuries shown in the post mortem report are enough for any Court to come to the conclusion that the injuries were sufficient to cause the death of the victim.
(3) That there was sufficient motive on the part of the appellant to murder Durgamani and also to finish Astam as there was extra marital relationship between Durgamani and Astam which was naturally not acceptable to the appellant.
(4) Regarding the discovery of 'Axe' as per the statement made by the appellant on 27.03.2003 and the recovery of weapon of offence on 30.03.2003, it was the submission of the learned Prosecutor that recovery statement is one thing and recovery is another thing. On this point he submitted that the offending weapon was identified by PW 14, the I.O and also Swapan Sannigrahi (PW 10).
(5) Regarding the injury report that is exhibit 18 it was the submission of the prosecutor that the defects which crept in exhibit 18 is not enough to injure the prosecution case as PW 24 deposed on exhibit 18 and the doctor was not asked regarding the interpolated date and time of incident. The doctor had no 'axe' to grind as against Mangal Hembram. (6) As regards the alternative plea it was the argument of the learned Prosecutor that the injuries which the victim Durgamani sustained cannot be covered under Section 304 Part II of the Code as the case of the appellant being under grave and sudden provocation was not argued before the learned Trial Court and nothing came out through the evidence that the appellant saw the victim Durgamani and the Astam in a comprising position to come under proviso I of Section 300 of the Code. (7) He further submitted that the burden to prove alibi at the time of the incident with regard to the appellant being in a video hall was on him but he failed to discharge the burden. Labin was not also examined.
Let us first of all decide as to whether the non-mentioning of the time of the offence in the charge can be treated as vital. It is true that Section 212 of the Cr.P.C. Contemplates that the charge must contain the time of the incident. In the instant case before us the time is not mentioned but date and place has been mentioned. Section 215 of the Cr.P.C is a saving section which runs thus, "Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Apart from the above section Section 464(1) of the Code in specific terms has dealt with such a situation. Section 464(1) Cr.P.C runs thus, "Effect of omission to frame, or absence of, or error in, charge.
No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby."
We have gone through the entire evidence on record particularly the cross- examination of the witnesses including the examination of the accused under Section 313 Cr.P.C and we are satisfied that no miscarriage of justice was caused during trial for non-mentioning of time in the charge. We are also satisfied that no prejudice was caused to the appellant and unless such prejudice or failure of justice is proved the charge framed by a Court of competent jurisdiction cannot be questioned.
It is true that the doctor who conducted the post mortem examination did not mention specifically that the cause of death was not homicidal but for that reason the death of Durgamani cannot be questioned. The expert evidence is there to help the Court but that does not mean that the court cannot look into the post mortem report or base its findings on the opinion of the autopsy surgeon. On reading and rereading the injuries noted in the post mortem report we are satisfied that the death of the said victim was homicidal and ante mortem in nature. It may be noted that the post mortem report was marked as exhibit on 'consent' before the Trial Court and no case was made out before it that it was a suicidal death or accidental death. We, on appreciation of evidence, are of the opinion that the death of the victim was homicidal in nature.
It is true that P.W 1 informed the police regarding the death of Durgamani and that another person was injured. But it was one information given to the police over telephone. It is needless to say that such cryptic information cannot be treated as FIR. The argument of the defence on this point cannot be swallowed by this court.
On giving our searching eyes to the evidence on record we have failed to gather any material contradiction in the evidence of the PWs to come to the conclusion that the witnesses were untruthful. It may be mentioned that all contradictions are not material contradictions. Minor contradictions are expected in every true case. While travelling through the evidence on record we failed to gather any material contradiction to discredit the prosecution case.
On this point we can rely on the decisions of the Apex Court as reported in 2000 SCC (Cri) Page 222 (Lila Ram (dead) through Duli Chand Vs. State of Haryana) and 2014(1) Cr.L.J (SC) Page 1 (Rohtash Kumar Vs. State of Haryana) The crux of these two decisions is that it is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the Court to reject the evidence entirely. Therefore, irrelevant details which do not in any way corrode the credibility of a witness, should be ignored. The Court has to examine whether evidence read as a whole appears to have a ring of truth. Corroboration of evidence with mathematical niceties cannot be accepted in criminal cases. Minor embellishments, there may be, but variations by reasons therefor should not render the evidence of eye witnesses unbelievable.
It is true that the statement of the appellant was recorded on 27.03.2003 and the recovery of the weapon of offence was made on 30.03.2003 but that cannot vitiate the recovery. The evidence of the Investigating Officer and PW 10 are there to make the recovery believable. No label was found on the 'Axe' recovered as brought out by the appellant but that is an example of defective investigation and the accused cannot enjoy the fruit of that when there is other evidence on record.
Let us now discuss whether the injuries inflicted on Durgamani by the appellant can be said to be protected under Exception I of Section 300 of the Code. Exception I runs thus, "culpable homicide is no murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
The provocation must be such as will upset, not merely a hasty and hot tempered or hyper sensitive person but one of ordinary sense and calmness. It may be shown distinctively not only that the act was done under the influence of some feeling which took away from the person doing it all control over his actions, but that feeling had an adequate cause. Here in the instant case before us there was no grave and sudden provocation which took away the sense of murder. He did not see at that time that Astam was in compromising position with Durgamani. It was his suspicion only that there was extra marital relationship between Durgamani and Astam. Exception I of Section 300 cannot apply in such a case. The argument that the act committed by Mangal will come under Part II of Section 304 of the Code cannot also be accepted as the nature of the injuries, weapon of offence used and the motive will negate such mitigating circumstance. The intention of Mangal was to finish his wife and the main ingredient of the Second Clause of Section 304 of the Code is "but without any intention to cause death, or to cause such bodily injury as is likely to cause death." It is true that in the injury report of Astam (Exbt. 18) there is over writings as regards the date and time of the incident. It cannot ipso facto throw away the otherwise established injuries of the second victim. The Doctor has duly described the injuries including the version of the victim. Before the trial court no question was put to the said doctor and without such confrontation being made to the witnesses such over writing cannot undo the otherwise acceptable injury report and in view of the aforesaid the defence argument cannot be accepted.
It is true that the injury report of Astam as well as the evidence of the doctor will go to show that Astam was hit by sharp cutting weapon and blunt weapon. It was argued by the defence that "Axe" is one sharp cutting weapon. We are unable to accept this. The court can take judicial notice of the fact that "axe" is sharp cutting weapon if the front portion is used but it is one blunt object if the back portion is used. The assailants who put several blows on the victim at night cannot fix whether he was hitting the victim through the front side of the weapon or through the backside. The argument of the defence is dealt with accordingly and we find no merit in it.
Regarding non-examination of Labin or Nabin we are of the view that the defence could have examined him as D.W. It was this Labin who allegedly passed the first information to the appellant regarding the murder of Durgamani when the appellant came out of the video hall. Even though Labin was cited as PW was not examined by the prosecution (as may be thought wise by the learned Prosecutor). The defence was not debarred from examining him to prove his innocence. In this regard we can cite the decision of the Apex Court as reported in 2014(1) Cr.L.J (SC) Page 1 (Rohtas Kumar Vs. State of Haryana) wherein the Apex Court held that the prosecution is not bound to examine all the cited witnesses and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. In the instant case before us the burden to examine the said witness was on the appellant who took the 'alibi' as stated above. The prosecutor has every right not to examine any particular witness, if the prosecutor so thinks it wise.
The argument of the defence that the assault on the victim Astam cannot be believed is one fanciful argument of the defence .It was argued that Astam could not identify Mangal as the assailant as he was either unconscious or semi- conscious. It may be noted that both the appellant and the victim come from the same village and they were closely known. The appellant had a grudge on him as he was not happy with the relationship between the injured victim and the deceased Durgamani. It is not the case before us that Astam was unconscious or semi-conscious before the assault. The evidence will show that he became unconscious after the incident and even thereafter for some time he was semi- conscious. Thus, it cannot be said that the injured victim did not see the assailant who was very much known to him and he very forcefully described him as Mangal, the assailant. The value of one injured eye witness is vital. We can rely on the decision of the Apex Court as reported in AIR 2011 SC 2552 (Bhajanlal Singh @ Harbhajan Singh Vs. State of Haryana) wherein the Apex Court held that the testimony of such a witness cannot be ignored as such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone.
We have gone through the evidence of Astam (PW 14), the injured victim of the case. His evidence is well corroborated by Lakhinder (PW 2), Labin Murmu (PW 4), her mother Jamuna Murmu (PW 12) and through the expert evidence of Dr. Abanti Saha, (PW 24). The nature of injuries sustained by PW 14 and the weapon of offence used are enough to convince us that the act of the appellant can safely be covered under Section 307 of the Code and we can definitely maintain the conviction and sentence as imposed by the Trial Court and we maintain that. In our previous discussion we have held that a person cannot be convicted in respect of the charge punishable under Section 307 of the Code as well as Section 326 of the Code. Charge was rightly framed in respect of Section 326 of the Code in addition to Section 307 of the Code as at that time evidence was not before the Court.
Let us turn our yes to the charge under Section 302 levelled against the appellant for murdering the victim Durgamani. It was stated by the defence and also by the prosecutor that the only evidence as regards the murder of Durgamani is the extra judicial confession allegedly made by the appellant to Astam (PW 14) at the time the latter was assaulted. According to the defence the extra judicial confession made to PW 14 cannot be believed as Astam was in inimical terms with the appellant and he relied on the decision of the Apex Court in Raja Ram (supra). Let us now examine the principles laid down by the Apex Court in the said decision. It was decided by the Apex Court that in every extra judicial confession two questions will arise, No. 1 - Was it made voluntarily? and No. 2 - Is it true? It was held relating to Section 164 Cr.P.C that a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
The Apex Court further illustrated that whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Cr.P.C. On this point law is clear that a confession cannot be used against the accused person unless it was made voluntary and at that stage the question whether it is true or false does not arise. The Apex Court stressed that the Court in accepting a confession will test as to whether he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The Apex Court expressed in clear terms that an extra judicial confession if voluntary and true and made in a fit state of mind, can be relied upon by the Court and that the confession will have to be proved like any other fact. It was further held that it is not open to any Court to start with a presumption that an extra judicial confession is a weak type of evidence and it would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. On this, the Apex Court introduced a theory that the person to whom such as an extra judicial confession is being made shall not even be remotely inimical to the accused. It has cautioned the Courts that the Court will rely on such statement if it is clear, unambiguous and unmistakably conveys that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. The Trial Court will put the evidence of the witness to a rigourous test and on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. The requirement of corroboration as regards the extra judicial confession is rule of prudence and not an invariable rule of law.
In the present case before us it is true that Astam and the present appellant were in inimical terms but we are to consider the circumstances in which this extra judicial confession was made. The extra judicial confession was "that he (Mangal) had finished his wife (Durgamani) and he would also finish me (Astam)." Thus, at that point of time this appellant was no doubt a free man and his movement not controlled by the police either by themselves or by any other agency and as such the flavour which we are getting is that the appellant made the statement voluntarily and in a free state of mind. It is true that the statement itself will show that the appellant was in a state of anger at that point of time, but that cannot make this extra judicial confession unbelievable.
We can support our views by borrowing the language from the judgment of the Apex Court as referred to above, Raja Ram (supra) "...................It would depend on the nature of the circumstance, the time when confession was made and the credibility of witness who speak to such confession..............." (Paragraph 19). Here in the instant case before us there would not have been any better place and time to make such extra judicial confession. It was made to the second victim Astam when the appellant was about to finish him. The evidence of PW 14, the star witness of this case, has been much discussed by us. We are of the view that his evidence can be relied upon which has been duly corroborated by others which we have already discussed. Every case is to be judged on its own fact and no straight jacket formula can be framed. The fact before the Apex Court in Raja Ram (supra) cannot match with this case before us. The Apex Court did not rely on the evidence of PWs 3 and 4. PW 3 being a close relative of PW 4 and PW 4 was a person of doubtful antecedents, a history-sheeter and the Apex Court expressed doubts on the totality of the evidence. Taking the risk of repetition we like to reiterate that in the instant case before us PW 14 to whom extra judicial confession was made was an injured witness and his evidence can safely be relied upon. The plea taken by the appellant in his examination under Section 313 that he was in a video hall has not been proved and as such it will give further flavour to the prosecution case. It may not be out of place to mention that the burden of proof to prove the 'alibi' was on the appellant.
Thus, in view of the discussion so long made we are satisfied that the learned Trial Court duly convicted the present appellant in respect of the charge punishable under Section 302 and under Section 307 of the Indian Penal Code. We have already stated that when there was a conviction under Section 307 of the Code, a conviction under Section 326 was redundant. Thus, we confirm the findings of the learned Trial Court and affirm the judgment and sentence of conviction only with such modification as regards Section 326 of the Code. There is no merit in this appeal and it is dismissed but without any cost.
The appellant is on bail. The bail bond is hereby cancelled and the appellant must surrender before the Chief Judicial Magistrate, West Medinipur at Medinipur within fifteen days from the communication of this order to serve the remaining part of the sentence. If the appellant does not comply with the order the concerned Chief Judicial Magistrate will issue a warrant of arrest against the said appellant and start proceeding against the surety/sureties under Section 446 Cr.P.C.
The Officer-in-Charge, Goaltore Police Station is directed to inform the appellant of the order passed this day. This has reference to Goaltore P.S Case No. 49 of 2003 (GR. 927 of 2003). The learned Counsel appearing on behalf of the State is requested to communicate this order to the said Officer-in-Charge.
The seized articles be destroyed after the period of appeal is over. Criminal Section is directed to send a copy of this order along with LCR to the Trial Court, being the Additional District and Sessions Judge, 1st Court, Medinipur. This has reference to Sessions Trial No.III/April/2004.
Let urgent photostat certified copies of this judgment be supplied to the parties, if applied for, upon compliance of all necessary formalities.
I agree:
(Patherya, J.) (Indrajit Chatterjee,J.)