Calcutta High Court
Kinu Md. vs State Of West Bengal on 19 July, 2005
Equivalent citations: (2005)3CALLT584(HC)
JUDGMENT Arun Kumar Bhattacharya, J.
1. The present appeal is directed against the Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpur in Sessions Case No. 22/1996 (Sessions Trial No. 12/1996) on 05.10.1996.
2. The miniaturized version of the prosecution is that on 28.05.1995 at about 2.00 a.m. accused Kinu Md. committed murder of his wife Hasen Banu by cutting her throat with a sharp-cutting weapon. On hearing a hue and cry the defacto complainant had been to the house of the accused and came to learn from his mother Rakhia Bewa (PW 2) that on hearing a restless sound from the adjacent room of her son Kinu while she went there, she found her daughter-in-law in throat-cut condition and on her query when the accused placed the sharp-cutting weapon on her chest, she caught the same with her left hand resulting in injury in her finger and the accused fled away leaving the said weapon. The accused made extra judicial statement before the members of the public. Hence, the accused was charged under Sections 324/302 IPC.
3. The defence case, as suggested to PWs and. as contended by the accused during his examination under Section 313 Cr PC is that he was not involved with the alleged crime. On that night he was viewing a drama show in an auditorium. He did not make any extra judicial confession before the members of the public.
4. 12 witnesses Were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials, on record, the learned Court below acquitted the accused of the charge under Section 324 IPC but found him guilty under Section 302 IPC, convicted him thereunder and sentenced him to suffer imprisonment for life and to pay fine of Rs. 2000/- i.d. to R.I. for six months.
5. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal.
6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.
7. Out of first 10 witnesses, almost all barring PWs 7 & 10 were declared hostile.
8. PW 1 - next door neighbour and the brother of the accused by village courtesy, who was engaged in a drama show at 10 minutes walking distance, on hearing the news at about 2.30 a.m. of murder of the wife of Kinu had been to the house of the accused and found Kinu's wife lying dead in throat-cut condition but he did not find the accused there. PW 2 - mother of the accused, on hearing a sound at about 2.00 a.m. from the adjacent room of her daughter-in-law Hasen Banu, went there and found her lying dead in throat-cut condition, but her son Kinu was not there as he was enjoying a drama show in the village at that time. Similar is the evidence of PW 3 and 6 - cousin brothers of accused, PW 4 -full brother, PW 5 - cousin brother by village courtesy and PW 9-neighbour. PW 8, brother's wife by distant relation expressed her ignorance about the cause of death.
9. PW 7, uncle of the victim, after reaching the P.O. in the morning at about 10.30/11.00 a.m. found his niece in throat-cut condition, a knife beside her body and accused in tied condition. On his query, mother of the accused (PW 2) informed that Kinu caused murder of his wife by cutting her throat with a knife at about 2.00 a.m. on 28.05.1994. The accused also confessed his guilt saying that the committed murder of his wife. PW 10 - teacher of a high school, Upa-pradhan of Gram Panchayat and cousin brother of the victim by village courtesy, on receipt of information of murder of the victim on 28.05.1994 had been to the P.O. at about 8.00 a.m., found the victim in a pool of blood in throat-cut condition, a knife and accused tied at the west of the house. On query the accused confessed that on the previous night at 2.00 hrs. he murdered his wife with a knife. On interrogation his mother also informed that her son committed murder of his wife. The police seized the said knife (Mat Ext. I), blood-stained blouse and sari of the victim and one green coloured lungi of the accused (Mat Ext. II (coll.)) in his presence under a seizure list (Ext. 3). PW 11 on receipt of the written complaint (Ext. 1) on 28.05.1994 recorded Kushmandi P.S. Case No. 40/1994 under Section 324/302 IPC, himself took up investigation, visited the P.O., prepared a sketch map (Ext. 5), arrested the accused, held inquest (Ext. 2) over the dead body of the victim, forwarded the dead body for PM Examination, brought the injured Rakeya (PW 2) to Kushmandi P.H.C. for her medical examination, collected the injury report (Ext. 6) from Dr. K.K. Sarkar of the said P.H.C, forwarded the bloodstained knife and other articles to Forensic Laboratory and examined witnesses. PW 12, successor-in-office, of PW 11, after taking up rest part of the investigation collected PM Report (Ext. 7) and FSL Report (Ext. 8) and submitted charge sheet against the accused under Sections 324/302 IPC.
10. The PM Report, marked Ext. 7 without objection and formal proof being dispensed with, reveals that on holding PM examination over the dead body of the victim on 29.05.1994 at about 1.00 p.m., the P.M. doctor found (i) one cut throat in front of neck over thyroid cartilage, cut transversely 3/2" cutting upto vertebral column, (ii) two stab wounds margin, incised one on each side of vertebral column below costal margin 1 x 1/4" x cavity, (iii) two incised linear cut on the palmer surface of finger - one on left little finger, another on the ring finger near tip, (iv) two incised cut on the palmer surface - one on right thumb and another on index near tip, and opined that the death was due to shock as a result of aforesaid wounds, ante mortem and homicidal in nature.
11. When a case, like the present one, entirely rests on circumstantial evidence, such evidence must satisfy the following tests viz. (1) the circumstance from which an inference of guilt is to be drawn must be cogently and firmlky established, (2) the circumstance should be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused and the facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, but also they should exclude every possible hypothesis except the one to be proved, and (3) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, as was held in the case of Sharadv. State of Maharashtra .
12. Merely because a witness is declared hostile it does not make him unreliable so as to exclude his evidence from consideration altogether, and his evidence is to be considered for what It is worth, as was held in the cases of Bhagwan Singh v. State of Haryana and Keshoram Bora v. State of Assam . In other words, evidence of a hostile witness can be accepted in part and it is to be considered in the light of other evidence on record.
13. In the present case, the incident took place at about 2.00 a.m. on 28.05.1994 and the matter was reported to the PS which is 16 km away from the P.O. within a reasonable time at about 7.15 hrs. as is evident from the formal FIR (Ext. 4), PWs 1, 3 to 6 and 9 on hearing the news of murder of the victim rushed to the P.O. immediately and found the victim dead in throat-cut condition.
14. According to the defence case, as stated above, the accused was not at the house as he was viewing a drama show in an auditorium at 10 minutes walking distance. Onus to prove alibi is on the accused as it is a matter within his special knowledge, and such plea of alibi when taken by an accused must be proved by him and he is to substantiate and make it reasonably probable. He must lead evidence to show that he was so far off at the moment of the crime from the place when the offence was committed and that he could not have committed the offence. Here, no such plea of alibi was taken by the accused during his examination under Section 313 Cr PC nor any suggestion in this regard was put either to PW 7 or PW 10 or PW 11 nor any evidence was adduced by the accused. It has been claimed by PW 4 that he and his brother Kinu were present on that night in the drama show which though supported by PW 2 (mother) and PW 6 is falsified by PW 3 who stated that the villagers including him brought the accused under arrest from the surrounding house. Similar is the evidence of PW 1 who deposed that on that night Kinu was arrested and brought to house by villagers. PW 7 and PW 10 on arrival at the P.O. at about 10.30/11.00 a.m. and 8.00 a.m. respectively found the accused in tied condition. It is not the defence case that the accused had been to nearby house on that dead of night for gossiping which necessarily leads to suggest two things viz. that he was very much in his room on that night before commission of the offence and it was he who committed the crime followed by fleeing away. The falsity of defence case undoubtedly cannot establish the prosecution case but it may be taken into consideration in deciding if the charge has been brought home against the accused and when other circumstances point unfailingly to the guilt of the accused it can be considered as an additional link in the chain of circumstantial evidence to make it complete, as a false plea put forward by the accused rebounds on him and the prosecution case gets strengthened. In this connection, reference may be made to the case of Mohan Lal v. State of U.P. and Shankarlal v. State of Maharastra .
15. Furthermore, there were only three members in the family viz. accused, his wife - the victim and mother (PW 2). There is no evidence that any outsider came to the house on that date. Ordinarily the fact that the accused and deceased were last found together and failure of accused to explain disappearance is a strong circumstance pointing to murder by the accused. The cases of Ashok Kumar v. State (Delhi Administration) reported in 1996 Cr LJ 421 (SC), and Ganeshlal v. State of Maharashtra reported in 1993 SCC (Cr) 435 may be relied on. In Ganeshlal case (supra) it was held that when the death had occurred in the custody of the accused, the accused is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr PC at least. Any sort of explanation on behalf of the accused will not suffice. The explanation must be cogent and reasonable. Here, virtually no explanation was offered by the accused during his examination under Section 313 Cr PC excepting denying the prosecution case. As stated earlier, none but accused and the victim were inside the room and just after the occurrence the victim was found lying dead on throat-cut condition. The explanation given by one or two hostile witnesses that the accused was at the moment off from his house at the auditorium of drama show is incompatible and has been belied and so the only conclusion that may be drawn is that the accused after committing murder of his wife, fled away to a nearby house wherefrom he was apprehended by PW 3 and other villagers, brought to house and tied there. It is a settled law that the conduct of an accused in an offence previous and subsequent to the crime are relevant facts, as was observed in Ganeshlal case (supra). The fact that the accused fled away immediately after the occurrence may be considered as conduct admissible under Section 8 of the Evidence Act.
16. Again, it is the evidence of PW 3 that on hearing a sound from the room of his daughter-in-law at about 2.00 a.m. she went there and found her lying dead in throat-cut condition. It is her further evidence that she resisted the assailant from assault on her daughter-in-law and in the process her left hand was injured. She contended that she could not identify the actual assailant as the room was dark on that particular night. If PWs 1, 3 to 6 & 9 after going to the P.O. within a short time after the occurrence could find the victim lying dead in throat-cut condition, if PW 2 herself on going to the adjacent room could see the victim in throat-cut condition and resist the assailant from assaulting her daughter-in-law, it negates the story of absence of light in the room as also her plea of non-recognising the assailant on that ground. PW 1 found injuries on the left hand of PW 2. Similarly, PW 6 also saw her (PW 2) in injured condition. PW 11 took the injured to Kushmandi PHC for medical examination and collected the injury report (Ext. 6). PW 2 also deposed that her injuries were treated by a doctor. Injuries sustained by her are sharp-cut on fore left finger and abrasion of middle and ring finger caused by a sharp weapon. PW 7, 9 and 10 found a knife (Mat Ext. 1) lying here. PW 11 seized amongst others the blood stained knife and sent it to FSL. The factum of such seizure is buttressed by the evidence of PW 3 and PW 10 who is a witness to the seizure. The FSL Report (Ext. 8) reveals that the knife was stained with human blood. As there were only three members in the family viz. accused, his wife and mother and there is no evidence that any outsider came to the house on that date, it leads to indicate that the assailant was no other person than the accused whom PW 2 tried to resist from assaulting the victim and in the process she sustained the said injuries with the aforesaid knife. This is another link in the chain of circumstantial evidence which strengthens the prosecution story.
17. Besides, it is the further evidence of PW 10 that the police seized blood stained blouse, one sari of the deceased and one green coloured lungi of the accused in his presence under a s. list (Ext. 3). PW 11 stated that after seizure of the bloodstained knife and wearing apparels as per seizure list, he sent the same to Forensic Laboratory.
18. Mr. R.P. Bhattacharya, learned Counsel for the appellant, on referring the case of G.B. Petal v. State of Maharashtra reported in AIR 1974 SC 35 and evidence of PW 11 contended that delay in recording the statement of material witnesses casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story, but here though PW 7 was examined, his statement was not recorded at all and thus his client was deprived of the opportunity of testing his veracity with reference to his earlier statement under Section 145 of the Evidence Act. Mr. Bhattacharya further contended that so far PW 10 is concerned, he was neither a charge sheet witness nor was examined under Section 311 Cr PC as a Court witness and as such the testimony of PWs 7 and 10 should be excluded from consideration.
19. Under sub-Section (3) of Section 161 Cr PC recording of statement of witnesses by the police officer is not obligatory, though he may do so if he wishes. In serious cases, the statement of person giving important information should be taken down so that the accused may not be handicapped in his defence and the Court may not be deprived of valuable material for ascertaining the truth. In the present case, PW7 did not adduce any new evidence excepting that the accused made an extra judicial confession and his mother (PW 2) stated that the accused committed murder of his wife by cutting her throat with a knife. As regards PW 10 he was a witness to the seizure of blood stained knife, wearing apparels of the victim and blood stained lungi of the accused but still why his name was not reflected in the charge sheet as a witness is obscure, and this is another flaw on the part of PW 11. Section 311 Cr PC empowers the Court amongst others to examine any person present in Court, the paramount consideration being just decision of the case. So, PW 10 can be said to have been examined under Section 311 Cr PC. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect: to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. If the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts, otherwise, designed mischief would be perpetuated and justice would be denied to the complainant party, as was held in the case of Dhanraj Singh v. State of Punjab reported in 2004 SCC (Cr) 851. So, the said omission or flaw on the part of I.O. is not a ground for throwing the prosecution case over-board.
20. Nevertheless, the F.S.L. report (Ext. 8) shows that all the times 1 to 5 i.e. knife, blouse, saree, lungi and blood soaked in a piece of gauge (blood of the deceased) are stained with human blood, and items No. 4 and 5 i.e. lungi and blood soaked in a piece of gauge AIR stained with 'B' group blood.
21. Mr. Bhattacharya on referring to the evidence of PW 10 contended that though a green coloured lungi of his client was seized, the lungi produced before the Court was blue coloured and as such the serological report relates to a different lungi having no nexus with this case. The said lungi eized in connection with the case when produced before the Court was found to be bluish and greenish both and as such, there appears to be no discrepancy in the above testimony of PW 10.
22. Mr. Bhattachrya on drawing attention of the Court to the evidence of PW 6 next contended that as the accused after arrival at the house clasped his wife, started crying and then became senseless, his lungi might have been stained with blood at that time. That the accused after arrival at the house clasped his dead wife it does not find place in the evidence of any other witness. It is the evidence of PW 3 that he along with other villagers brought the accused under arrest from the surrounding house which is supported by PW 1 and PW 3 in one place of his cross-examination by defence stated that accused became senseless on seeing the dead body of his wife which is absent in the evidence of other witnesses. That apart, a person who caused murder of his wife brutally will became senseless on seeing the dead body after sometime is not at all worthy of belief. PW 7 and 10, as stated earlier, found the accused in tied condition. In other words when the accused on being brought under arrest by the villagers was tied at his house and there was no scope on his part to go nearby the dead body of the wife, the question of his lungi being stained with blood on account of clasping the dead body of the victim is immaterial, and it may be concluded that his lungi was stained with blood of the victim only at the time of commission of the offence. This is another link in the chain of circumstantial evidence to make it complete.
23. So far the above evidence of PW 7 and 10 that the mother of the accused stated before them that the accused committed murder of his wife by cutting her throat with a knife is concerned, the same having been denied by PW 2 is not becoming of any aid to the prosecution. As regards the above retracted extra judicial confession, as deposed by PWs 7 and 10, Mr. Bhattacharya relying on the cases of Surinder Kumar v. State of Punjab reported in AIR 1999 SC 215 and State of Punjab v. Gurdeep Singh 1999(4) Cr 142 (SC) contended that as extra judicial confession is a very weak piece of evidence, it should not be acted upon without independent corroboration. It is the substance of an extra judicial confession which really matters. In this case, the above evidence of PWs 7 and 10 is consistent with each other. But as regard PW 7, there appears to be a bit discrepancy in regard to the time of his arrival at the P.O., as he stated that he reached the P.O. at about 10.30/ 11.00 a.m. The learned Court below appears to have dealt with the matter rightly. PW 7 is a rustic villager who can anyhow sign his name by crawling and as such correct version about time of his arrival by arithmetical calculation cannot be expected of him. PW 11 did not state any specific time of his arrest of the accused but it was between 9 a.m. and 2 p.m. and he sent the dead body of the victim at about 9.15 a.m. which necessarily leads to show that PW 7 reached the P.O. obviously before 9.00 a.m. Since he arrived at the P.O. when police officer was already present, the chance of making extra judicial confession by the accused before PW 7 in presence of a police officer cannot be taken into consideration. In this connection, this Court's decision in Bhulakiram v. State of West Bengal reported in 1970 Cr LJ 403 may be relied on which stands for the proposition that extra judicial confession made to a private individual in presence of police officer is inadmissible.
24. Confession even if retracted can form the basis of conviction without corroboration if it is found to be perfectly voluntary, true and trustworthy, as was held in Shankaria v. State of Rajasthan reported in AIR 1978 SC 1248. An extra judicial confession made to one who is not a person in authority and which is free from any suspicion as to its voluntary character and has also a ring of truth in it is admissible in evidence and deserves to be acted upon, this having a high probative value, as was observed in Thimma v. State of Mysore . In Gurdeep Singh case (supra), the Court held: "There is no denial of the fact that extra judicial confession is admissible in evidence and the Court in appropriate cases can rely thereon to the extent of even basing conviction of the accused. In a long catena of decisions of this Court, the settled position of the present day is that the extra judicial confession by itself if, otherwise in conformity with the law, can be treated as substantive evidence, and in appropriate cases it cannot be used to punish an offender. We, however, hasten to add here that this statement of law stands qualified to the extent that the Court, should insist on some assuring material of circumstance to treat the same as piece of substantive evidence." The facts and circumstances of the other cases referred to by Mr. Bhattacharya being quite different, the said decision has no manner of application here. In this case, it is the evidence of PW 3 that no force was applied upon the accused. There is nothing to indicate in the testimony of any PW that the accused was induced a man handled or threatened. PW 10 belongs to CPI(M) party. To a question whether accused and the members of his family belong to CPI(M) party he expressed his ignorance. He categorically denied the suggestion that he is deposing falsely for political rivalry. If both belong to some party, the question of political rivalry is out of the way. So, no animus of PW 10 against the accused having been made out, it improbablises the hypothesis of his false implication. Accordingly, the above extra judicial confession made to PW 10 can be said to be voluntary and at the same time true and it gets corroboration from the facts and circumstances discussed earlier and so it may be acted upon. This is another link in the chain of circumstantial evidence which irresistibly point to the guilt of the accused.
25. Mr. Bhattacharya on citing the case of State of U.P. v. Abdul reported in 1997(2) Cr 78 (SC) next argued that the object of inquest is merely to ascertain whether a person died under suspicious circumstances or an unnatural death and if so what was the apparent cause of death, and the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is totally foreign to the ambit and scope of the proceeding, but here the learned Court below over stepped and took into consideration the inquest report as one of the grounds to base the conviction. Indubitably, the above is the legal position relating to an inquest report ad to that extent one of the reasons of the learned Court below for finding the accused guilty is erroneous. But it makes no difference on account of so many circumstances going against the accused as point out above.
26. Mr. Bhattacharya next contended that in a case where only circumstantial evidence is available, normally motive behind the crime has to be shown, but in this case evidence on motive is totally absent. The prosecution is not to prove motive for it is known only to the accused, as was held the case of State of Haryana v. Sher Singh reported in AIR 1981 SC 1021. Motives of men are often subjective, submerged and unamenable to easy proof that the Court has to go without clear evidence thereon if other clinching evidence exists. Proof of motive satisfies the judicial mind about likelihood of the authorship but its absence only demands search and cannot undo the effect of evidence otherwise sufficient. Men do not act wholly without motive and failure to discover the motive of the offence does not signify the non-existence of the crime nor proof of motive is eve an indispensable factor for conviction, as was held in Ashok Kumar case (supra).
27. Mr. Bhattacharya, at the end, on citing the case of Kali Ram v. State of Himachal Pradesh contended that as the present case hangs upon circumstantial evidence alone and the chain in the circumstances cannot be said to be complete, his client is entitled to get benefit of doubt. Benefit of doubt means doubt of a reasonable mind, not of a vacillating mind. The prosecution need not arrive at conclusive proof, and what is needed is proof beyond reasonable doubt. It is not necessary that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused however, extra-vagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence remained un-excluded by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not farfetched, as was held in the case of State of A.P. v. Prasada Rao . In State of M.P. v. Dharkole reported in 2005 SCC (Cri) 225 it was held: "Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial as to the guilt of the accused persons arising from the evidence, or from the lack of it as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case." Therefore, when the facts, circumstances and materials on record unerringly point to the guilt of the accused, the question of extending the benefit of doubt to the accused is quite immaterial.
Accordingly, there being no material to interfere with the decision of the learned Court below, the present appeal be dismissed on contest. The order of conviction and sentence passed by the learned Court below in Sessions Case No. 22 of 1996 (ST. No. 12 of 1996) is hereby affirmed.
Alamats if any, be destroyed after the period of appeal is over.
Let a copy of this Judgment along with the LCR be forwarded to the learned Court below at once.
Debi Prasad Sengupta, J.
28. I agree.