Calcutta High Court (Appellete Side)
Chatu Sk. & Ors vs The State on 29 September, 2011
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present :
THE HON'BLE MR. JUSTICE GIRISH CHANDRA GUPTA
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
CRA NO. 563 of 2007
Chatu Sk. & Ors. ... Appellant
Vs
The State ... Respondent
For the Appellants : Mr. Biplab Mitra
Mr. Sanat Das
Mr. Brajesh Jha
For the State : Mr. Tapan Deb Nandi
Mrs. Debjani (Shaw) Banerjee
Heard on : 2.9.11 & 8.9.2011
Judgment on : 29.09.2011
RAGHUNATH RAY, J. :
This appeal is directed against a judgment and order dated 27.7.2007 passed by the learned Additional District & Sessions Judge, 3rd Fast Track Court at Berhampore in Sessions Trial No. 865 of 2003 whereby the learned Judge convicted the appellants for offences punishable under Section 302 read with Section 34 IPC under Section 235(2) CrPC. Accused Faizuddin was not found guilty of the charge under Section 302/34 IPC. Five convicts viz. i) Chatu Sk., ii) =2= Alahaque Sk., iii) Majibar Sk., iv) Sahajamal Sk. and v) Abu Kalam Sk. were sentenced to life imprisonment and to pay a fine of Rs. 500/- I.D. to S.I. for one month. Accused Faizuddin was, however, acquitted of the charge under Section 302/34 IPC.
2. The facts and circumstances emerging from the FIR may be summarized as under:
One Hasina Bewa informed the local P.S. vide FIR No. 53 dated 6.9.97 inter alia that a few months back the accused Chatu Sk. attempted to outrage the modesty of her daughter-in-law Rajina Bibi, PW 6 wife of her son Rashid Sk. since deceased. The accused Chatu Sk. was humiliated by the villagers for such indecent behaviour. By way of retaliation on 6.9.97 at about 6.30 A.M. while Rashid Sk. since deceased was taking tea with his 'bhairabhai', Hebal Sk., PW 2 in the tea stall of Doat Ali, PW 4 at Tematha, Shyamnagar, all the six FIR named accused encircled Rashid Sk. Alahaque Sk. caught hold of Rashid's hair by his left hand and hacked his neck with a hansua in his right hand. The victim Rashid sustained severe bleeding injury and ran towards his house but on his way, he collapsed on the road and died instantaneously. In response to hue and cry of the witnesses including the informant the local people rushed to the spot and came to know about the incident. The accused persons, however, managed to escape from the P.O.
3. On the basis of the said FIR, Nowada P.S. Case No. 53/97 dated 6.9.97 under Section 302 IPC was started against all the six persons as named in =3= the FIR. The case was endorsed to S.I., S. Nandy for investigation. In course of the investigation, the I.O. visited the P.O. and recorded the statement of eye- witnesses collected the postmortem report of the deceased and also recorded the statement of the witnesses during investigation. On completion of investigation, the I.O. submitted charge-sheet under Section 302/34 IPC against all the six accused persons. All the accused were asked to answer the charge under Section 302/34 IPC which reads as under:
"That you, on or about the 6th September, 1997 at Shyamnagar Dargatalapara under P.S. Nowda, District Murshidabad in furtherance of common intention of all did commit murder by intentionally causing the death of Rosid Sk.
and thereby committed an offence punishable under Section 302 read with Sec. 34 of the Indian Penal Code, and within my cognizance.
And I hereby direct that you be tried by the said Court on the said charge.
Charge is read over and explained in Bengali language to accused persons who pleaded not guilty and claimed to be dictated."
Accordingly, all the accused stand trial.
4. In all the prosecution examined 10 witnesses including Dr. S. K. Bhuia who conducted the postmortem examination of the deceased in support of the prosecution case. On consideration of ocular testimony of eye-witnesses, post-occurrence witnesses as also medical evidence on record, the learned trial court came to a finding that all the five accused came to the P.O. at a time and one of them assaulted the victim Rashid while other brothers were standing by his side. So, six accused persons were promoting the offence as alleged against =4= them and, therefore, they actually participated in that murder. The learned trial court was, however, of the view that the chain of circumstances has not been proved against accused Faijuddin Mondal and as such it cannot be said in all probability that the said accused was involved with the murder of Rashid. Accordingly, all the rest 5 appellants were convicted and sentenced for committing offence punishable under Section 302/34 IPC and all of them were convicted thereunder. They were sentenced to life imprisonment with stipulated default clause as already indicated. The accused, Faizuddin was however, found not guilty of the charge under Section 302/34 IPC and was accordingly acquitted of the said charge.
5. Feeling aggrieved, four convicts viz. i) Chatu Sk., ii) Majibar Sk.,
iv) Sahajamal Sk. and v) Abu Kalam Sk. have come up in appeal.
6. Mr. Mitra, learned advocate for the appellants submits that it is a case of no evidence against the appellants and the sole assailant Alahaque Sk. has, however, not preferred any appeal. It is further submitted by him forcefully that the single eye-witness that is the mother of the victim has also not named the appellants as the persons who participated in the commission of murder of the deceased. The informant, PW 1 has simply stated that she also found Faizuddin Mondal, Chatu Sk., Alahaque Sk., Majibar Sk., Sahajamal Sk. and Abu Kalam Sk. to stand at the P.O. and they surrounded her son. During cross- examination she has also reiterated that whenever in search of his son she had =5= been to the P.O., she found that Alahaque Sk. caught her son Rashid and hacked his neck by hansua. She also reiterated that she found Abul Kalam Sk., Faizuddin Mondal, Chatu Sk. etc. to stand at the P.O. surrounding her son.
7. Mr. Mitra further submits that the testimony of the informant taken as a whole tends to show that it was none else but Alahaque Sk. who caused the death of the victim by hacking his throat by hansua. It is further argued by him that Hebal Sk., PW 2, an eye-witness of the incident also deposed that while he was sitting in the tea stall of Doat Ali, PW 4, Faizuddin Mondal, Abul Kalam Sk. and Mazibur Sk. came there and surrounded Rashid. His further specific evidence is that Alahaque Sk. caught hold of the throat of Rashid and hacked his thoat by hansua. It is pointed out by him that this eye-witness has corroborated PW 1 on the point that it was Alahaque Sk. who hacked the victim to death with a hansua and other appellants including Faizuddin Mondal surrounded the deceased.
8. He has also invited our attention to the testimony of Doat Ali, PW 4, the owner of the tea stall in whose presence the incident allegedly took place. He also corroborated PWs 1 and 2 by deposing that Alahaque Sk. came to the P.O. with a hansua and he caught hold of Rashid in one hand and hacked his neck by means of hansua while Rashid since deceased was brushing his teeth at about 6.30 A.M. in front of his shop. He has not even made any whisper about the presence of appellants at the P.O. at the material point of time. Another eye-
=6= witness, viz. Azizul Haque also deposed in the same vein that while Abdul Rashid was brushing his teeth in front of the shop of Doat Ali, Alahaque Sk. came there with a hansua and hacked the throat of Rashid by means of hansua. At that point of time, he was the Upopradhan of Bali No. 2 Gram Panchayat. In his presence the inquest of the dead body was done. Even though he was an eye- witness to the incident, he has not confirmed the presence of the appellants at the P.O. when the victim was hacked to death. Mr. Mitra, therefore, submits that there is no iota of evidence to indicate that the appellant who happened to be the brothers of Alahaque Sk. came to the P.O. in a body or made any pre-arranged plan to cause the death of the victim. Their mere presence at the P.O. when their brother hacked the victim to death by hansua is an accidental coincidence and by no stretch of imagination it can be said that the appellants shared common intention with the accused Alahaque Sk. to take the life of Rashid. Even the eye- witnesses have not alleged any overt act against any of the appellants. There is also nothing on record to suggest that they took any active role in instigating Alahaque Sk. to commit such a heinous crime of murder.
9. It is hinted both in FIR and in the testimony of some of the witnesses that it was Faizuddin who asked Alahaque Sk. to finish the victim Rashid. but the learned trial court did not find any tangible and credible evidence against Faizuddin and as such he was not found guilty of the charge under Section 302/34 IPC and was accordingly, acquitted of the said charge. The case of the appellants is also, similarly, situated since there is no credible evidence to =7= indicate that they instigated Alahaque Sk. to make a dastardly attack upon the victim since deceased.
10. Mr. Mitra vehemently argues that it would be far-fetched to think that all the brothers would simultaneously intend to avenge the humiliation faced by Chatu Sk., one of their brothers for outraging the modesty of the wife of Rashid since deceased after the lapse of a month. In this context, he has also referred to the evidence of Rajina Bewa, PW 6 the wife of Rashid Sk. since deceased. She deposes that about 7 years ago on a day, Chatu Sk. went to her house and tried to outrage her modesty. She reported the said matter to her husband, Rashid on his return to home. One month, thereafter, one day about 6.00 A.M., she found that i) Chatu Sk., ii) Alahaque Sk., iii) Majibar Sk., iv) Sahajamal Sk. and v) Abu Kalam Sk. encircled her husband on the road at Tematha in front of the house of Abul Sk.. She further deposes that she found Alahaque Sk. to hack the throat of her husband by means of hansua and other five persons were found standing by his side. It is, therefore, submitted by Mr. Mitra that even the wife of the victim has not stated anything implicating the appellants in commission of the crime of murder. She has simply stated that the appellants were found standing by the side of Alahaque Sk. It is, therefore, argued by him that even though the appellants were found present at the P.O., they did not share any common intention with Alahaque Sk. to cause death of Rashid.
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11. It is, further, submitted by him that Hebal Sk., PW 2 did not state before the I.O. about the presence of other witnesses at the P.O. Even Doat Ali Sk., PW 4, the tea stall owner has not stated in his evidence that the appellants were present near his tea stall at the fateful moment when Alahaque Sk. hacked the neck of Rashid with a hansua. He has, however, categorically stated in his evidence that Hebal Sk., PW 2 was present at the P.O. at the material point of time. It is, therefore, argued by him that some of the eye-witnesses have deposed about the presence of the appellant at the P.O. at the relevant point of time after being tutored by the Police. It was an afterthought on the part of the informant party to implicate the appellants falsely in this case of murder. He has also referred to the Inquest Report prepared by the Police on 6.9.97 at 10.45 P.M. wherefrom it appears that while Rashid was brushing teeth in front of the tea stall of Doat Ali, Alahaque Sk. reached there and hacked him to death with a hansua causing fatal bleeding injury. The Inquest Report is also silent about the presence of the appellants at the P.O.
12. Mr. Mitra further argues that suspicion, however, strong cannot take the place of proof. Suspicion against Chatu Sk. is natural since it was he who was the root of all trouble, because he attempted to outrage the modesty of the wife of the deceased. The genesis of the tragic incident can be traced back to Chatu's attempt to outrage the modesty of the wife of Rashid since deceased. Therefore, the niddle of suspicion may be pointed to Chatu in all probability since he was humiliated by the villagers. He might have thought of teaching a lesson =9= to Rashid for his humiliation. That is why, he might have instigated his brother Alahaque Sk. to cause the death of the victim. According to him, since the prosecution has failed to bring sufficient materials on record proving involvement of all these appellants including Chatu to cause death of the victim, the appellants cannot be convicted on the basis of strong suspicion raised on behalf of the prosecution. In this context, he has referred to a ruling of the Apex Court reported in 2004 SCC (Cri) 1893=(2004) 10 SCC 699 [Narendra Singh & Anr. Vs. State of M.P.] wherein it has been held in paragraph 30 of the judgment that suspicion, however, strong, cannot take the place of proof.
13. It is further submitted by him that the prosecution has miserably failed to prove that the victim was hacked to death by Alahaque Sk. in furtherance of common intention of all the appellants. According to him, evidence and circumstances on record as pointed out by him in course of his argument do not justify applicability of Section 34 IPC against the appellants. Their mere presence at the P.O. is not sufficient to invoke Section 34 IPC. It is also contended by him that non-examination of I.O. is also fatal for the case of prosecution. Mr. Mitra concludes his argument by saying that it is absurd to suggest that for the purpose of taking revenge, 5 brothers will conspire amongst themselves and would commit murder of the husband of the victim whose modesty was attempted to be outraged by Chatu Sk., one of their brothers. It is, therefore, submitted by him that all the appellants are entitled to be acquitted of the charges under Section 302/34 IPC.
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14. Such submission of Mr. Mitra is, however, strongly disputed by Mr. Deb Nandi, learned counsel for the State. It is argued by him that the appellants' presence at the P.O. at the material point of time when the deceased was hacked to death with a hansua by their brother Alahaque Sk. gives a clear indication that all of them came to the P.O. with a pre-arranged plan to kill the deceased. Such an action is quite probable against the backdrop of Chatu Sk.'s attempt to outrage the modesty of the wife of the deceased for which he was humiliated by the co-villagers. According to him, it is a fit case where the aid of Section 34 IPC is essentially required since vicarious liability of the appellants for commission of murder of the deceased by their brother Alahaque Sk. is established from the circumstantial evidence on record. The appellants should, therefore, be jointly held liable for murdering the deceased.
15. It is next argued by him that if the witness disowns any statement which is inconsistent with the present stand in his testimony in court, on that score such testimony would not be vitiated until the cross-examination proceeds to comply with the procedure prescribed in the second part of Section 145 of the Evidence Act. In this context, he has referred to a ruling of the Apex Court reported in 1997 CrLJ 362 (SC) (Binoy Kumar Singh vs. State of Bihar). Such being the position of law, even if the evidence of the witnesses is = 11 = inconsistent with the statement made before the I.O., their statement cannot be discarded on that score. .
16. Relying upon a decision reported in 2003 SCC (Cri) 165 [Alamgir vs. State (NCT Delhi)], it is further contended on behalf of the State that even if a relevant fact is not mentioned in the statement of a witness at the time of recording his statement under Section 161 CrPC, his evidence before the Court cannot be rejected on that score if his evidence is otherwise creditworthy and acceptable. Omission on the part of the Police Officer would not take away nature and character of the evidence.
17. Regarding non-examination of the Investigation Officer, it is submitted by him that non-examination of the I.O. is not fatal in this case since evidence led by the prosecution is in conformity with the case made out in the FIR and medical evidence. Therefore, non-examination of the I.O. per se does not vitiate the trial. That apart, the entire case diary also need not be exhibited for the non- examination of the I.O. In this connection, he has referred to a ruling of the Apex Court reported in 1996 SCC (Cri) 271 [Behari Prasad vs. State of Bihar].
18. We have considered the rival submissions advanced by the learned counsel appearing before us. We find much substance in Mr. Mitra's submission that there is no tangible evidence on record to establish conclusively that the death of the victim was caused in concert pursuant to the pre-arranged plan in = 12 = view of Chatu's humiliation by the villagers for attempting to outrage the modesty of the wife of the deceased. It is also equally true that the prosecution has failed to establish by evidence whether direct or circumstantial that there was a plan or meeting of mind of all the appellants together with Alahaque Sk. who hacked the deceased to death. But the fact remains that there is definitely a significant circumstance which constitute the abetment, so that even if absent, one of the appellants namely, Chatu Sk. can be made liable to be punished as an abettor invoking Section 114 IPC and it can also be shown from the evidence on record that he was also present when the offence was committed.
19. Adverting to the genesis of this gruesome murder, we find that the testimony of the wife of the deceased is extremely important to delve deep into the question of abetment for commission of a heinous offence of murder. Rejina Bewa, PW 6 has deposed as under:
"......... About 7 years back on a day, Chatu Sk. went to my house and tried to outrage my modesty. I told the said matter to my husband Rashid Sk. on his return to home. ........."
20. In the opening line of the FIR (as in vernacular), the informant, i.e., the mother of the deceased has unequivocally stated as under:
" ......... in last Ashar Chatu Sk. s/o. Haru Sk. of our village tried to outrage the modesty of Rejina Bibi, wife of my son, Rashid and for such act Chatu Sk. was insulted by the village people."
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21. She, thereafter, proceeds to add as follows:
"For that reason there was a bad terms prevailing between the family of Chatu Sk. and our family. Today on 6.9.97 at about 6.30 A.M., my son Rashid Sk. was taking tea with his 'Bhairabhai' Hebal Sk. in the tea stall of Dowat Ali at Tematha, Shyamnagar. At that time out of previous grudge, Alahaque Sk., Chatu Sk., Majibur Sk., Shajamal Sk., Abukalam Sk. all s/o. Haru Sk., Faijuddin Mondal s/o. L. Nihar Ali Mondal all of Shyamnagar Dargatala encircled Rashid and thereafter Alahaque Sk. came there with a Hansua and he caught hold of hair of Rashid by his left hand and hacked the neck of Rashid by means of Hansua in his right hand ........."
22. It is, therefore, crystal clear that it was none else but Chatu Sk. who being humiliated by the villagers for his ignominious action instigated his own brothers especially Alahaque Sk., who was eccentric in his behaviour as per defence suggestion, to avenge his humiliation. There is nothing on record even in the form of defence suggestion that Alahaque Sk. had any dispute or ill feeling against the victim or it was his individual decision to kill the deceased to settle an old score with him. Rather, facts and circumstances of the case unequivocally tend to show that Chatu wanted to teach a good lesson to Rejina Bibi who thwarted his plan to outrage her modesty in her husband' s absence by taking = 14 = away the precious life of her husband. Hebal Sk., a dependable eye-witness, PW 2 has unequivocally stated at the outset of his cross-examination as under:
"Faijuddin Mondal, Chatu Sk., Abu Kalam Sk., Sahajamal Sk. and Majibar Sk. did not surround Rasid Sk. but they were standing aside."
Therefore, the presence of Chatu Sk. has been proved and clearly proved from the unimpeachable testimony of this fully reliable eye-witness.
23. But no ostensible reason for his presence at the material point of time is forth coming either in the evidence or through the defence suggestion or even during his examination under Section 313 CrPC. However, there is no corroborative evidence on record to establish conclusively that the rest of the appellants were present to abet the crime of murder. But the presence of Chatu Sk. can, however, be easily explained. He was present at the P.O. to abet the commission of crime of murder as also to avenge his own wounded feelings. In this connection, it is pertinent to mention that there is corroborative evidence of some of the eye-witnesses to establish his presence at the P.O. at the material point of time.
24. Against such factual scenario, we feel it imperative to recast the charge framed against Chatu Sk., one of the appellants for the simple reason that circumstances amounting to abetment of murder have been proved from the evidence on record. It is to be borne in mind that Section 114 IPC refers to the case where a person, by abetment, previous to the commission of the act, renders = 15 = himself liable as an abettor, is present when the act is committed, but takes no active part in the doing of it.
25. Judging from the said yardstick, we are of the considered opinion that Chatu Sk. abetted the commission of crime prior to the causing of death of the deceased and his subsequent presence at the spot when the victim Rashid was hacked to death by Alahaque Sk., in fact, completes the process of abetment. In such a situation, since Section 114 IPC is not a charging Section and it embodies a deeming provision when the abettor is present at the place of occurrence of offence abetted, the charge is required to be framed for substantive offence together Section 109 IPC read with Section 114 IPC against the appellant Chatu Sk. Accordingly, Charge under Section 302/34 IPC framed against the appellant Chatu is recast and he is charged under Section 302/109 IPC read with Section 114 IPC. Let us now proceed to evaluate the entire evidence on record to come to a finding as to whether the alteration of charge is justified in the light of evidence on record led by the prosecution during trial.
26. We are, therefore, to scrutinise the testimony of Dr. Santosh Kumar Bhunia, the then Assistant C.M.O.H. (Sadar) Berhampur who conducted the post mortem examination over the dead body of Rashid Sk. to ascertain the extent and nature of antemortem injuries sustained by the deceased. On examination he found the following:
= 16 = " ......... rigormotis was present. There was one injury incised cut throat wound transversely disposed 6" x 2½" bone deep over the front of the lower part of the neck dividing great vessels of both sides and trachea and oesophegus. ........."
27. The doctor has opined that the death was due to shock of haemorrhage and injury as noted above which was antemortem and homicidal in nature. Injuries were inflicted by sharp-cutting weapon. He has proved the post mortem report (Ext 7). It is further opined by him that such injury might have been caused by a sharp-cutting weapon like Hansua.
28. The medical evidence as dissected hereinabove is quite in conformity with the ocular evidence adduced through eye-witnesses and other witnesses who visited the P.O. immediately after the occurrence and already elaborated in preceding paragraphs. In such view of the matter there is no scope to doubt the genuineness of the prosecution case.
29. It has rightly been argued by the learned counsel for the State that the evidence tendered in court cannot be disbelieved on the ground that such evidence is inconsistent with the statement recorded by the I.O. The omission to record relevant fact relating to the incident by the I.O. cannot be a convincing reason to discard the testimony of eye-witnesses. It is also settled position of law that even if the Investigating Officer could not be examined because of some = 17 = unavoidable circumstances, the same cannot be a good ground to brush aside the prosecution case. Considering all these, we are of the considered view that the prosecution case does not suffer from any legal infirmity.
30. Adverting to the evidence of eye-witnesses and post-occurrence witnesses and appreciating the same critically, we find that the genesis of the gruesome murder has been well established and involvement of Chatu Sk. in making an abortive attempt to outrage the modesty of Rajina Bibi, the wife of the deceased has also been clearly proved. The essential requirements of Section 109 IPC read with Section 114 IPC have been satisfied and those Sections can be invoked to charge the appellant Chatu Sk. with the substantive offence of murder against the backdrop of circumstantial evidence coupled with ocular evidence on record.
31. There is no doubt that the appellants cannot be convicted on the basis of strong suspicion. In this context, it would be apt to quote paragraph 30 of the ruling reported in 2004 SCC (Cri) 1893 (supra) as under :
"30. It is now well settled that benefit of doubt belonged to the accused. It is further trite that suspicion, however grave may be, cannot take place of a proof. It is equally well settled that there is a long distance between "may be" and "must be"."
32. Applying the cardinal principles of the criminal justice system as laid down in the afore-cited ruling, we are of the considered view that the rest of the appellants cannot be held liable either under Section 302/34 IPC or under = 18 = Section 302/109/114 IPC for lack of sufficiently strong corroborative evidence and circumstances on record. These appellants, therefore, cannot be convicted under any of afore-mentioned Penal provisions even though there might be a strong suspicion against them for the simple reason that suspicion cannot take the place of proof. In that view of the matter, the rest of the appellants are entitled to an order of acquittal on the benefit of doubt.
33. Viewed in the light of foregoing discussions, we cannot but hold that the charge under Section 302/109 IPC read with Section 114 IPC has been proved and clearly proved against Chatu Sk. beyond any reasonable doubt. He is, therefore, liable to be convicted under Section 302/109 IPC read with Section 114 IPC and sentenced thereunder instead of Section 302/34 IPC.
34. In the result, conviction under Section 302/34 IPC against all the appellants and sentence thereunder is not legally sustainable and liable to be set aside in the facts and circumstances of the present case. However, the appellant Chatu Sk. is convicted under Section 302/109 IPC read with Section 114 IPC instead of Section 302/34 IPC and is sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- i/d to S.I. for five months subject to Section 428 CrPc. The order of conviction under Section 302/34 IPC passed against the rest of the appellants and sentence passed thereunder are hereby set aside accordingly.
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35. In the result, the appeal succeeds in part.
36. The appellant Chatu Sk. is directed to surrender within a fortnight and to serve out the sentence passed by this court. The learned trial court is directed to issue a revised Jail Warrant accordingly.
37. The learned trial court is further directed to take coercive measure in the event the appellants do not surrender within the stipulated time frame.
38. The concerned Department of this Court is directed to send a copy of this judgment and the lower court records to the learned Trial Court for information and necessary compliance.
39. Let urgent Xerox certified copy, if applied for, be supplied to the parties upon compliance of all usual formalities.
I agree. (Girish Chandra Gupta, J.)
(Raghunath Ray, J.)