Calcutta High Court (Appellete Side)
Apchar Ali Molla vs The State Of West Bengal on 29 June, 2010
Author: Kalidas Mukherjee
Bench: Ashim Kumar Banerjee, Kalidas Mukherjee
1
Form J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
AND
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
CRA NO. 118 OF 1996
Apchar Ali Molla
Vs.
The State of West Bengal
For the Appellant: Mr. J. N. Chatterjee
For the State : Mr. S. Ganguly
HEARD ON: 14.6.2010, 15.6.2010 & 17.6.2010.
JUDGMENT ON: June 29, 2010.
KALIDAS MUKHERJEE, J.:
1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 6th Court, Alipore in Sessions Trial No. 10(8) of 1995 sentencing thereby the appellant to suffer R.I. for life and to pay fine of Rs.1,000/- in default to suffer R.I. for six months under Section 302 I.P.C.
2. The prosecution case, in short, is that on 6.2.1988 at about 10.30 P.M. while the informant and his daughter Bauni Bibi were having gossip after 2 dinner, then suddenly the informant's son-in-law Apchar Ali Molla struck informant's daughter on the neck with a chopper. When the informant tried to resist, the accused was about to strike him as well and while fleeing away the accused stated that the informant would not have to send his daughter to the house of the accused anymore. The daughter of the informant died instantaneously. It has been alleged in the F.I.R. that there was ill-relation between the informant's daughter and the accused for quite sometime past. For this reason the informant's daughter stayed in his house for the last fifteen days prior to the incident. Informant's daughter was not willing to go to her matrimonial home. Prior to the date of incident the accused came to the house of the informant in the evening on two successive days and quarrelled with the daughter of the informant. But, on the date of incident i.e. 6.2.1988 at night he suddenly came and caused her death. After the receipt of the complaint, the Bhangore P.S. case No. 3 dated 6.2.1988 was started. After completion of investigation the charge sheet was submitted. The charge was framed under Section 302 I.P.C. to which the accused pleaded not guilty and claimed to be tried.
3. Mr. J. N. Chatterjee appearing on behalf of the appellant submits that P.W. 1 is the only eyewitness of this case and the evidence of P.W. 1 suffers from serious inconsistencies and, as such, his testimony is not worthy of credence. Mr. Chatterjee submits that P.W. 1 has stated in cross- examination that on the night of incident he went outside for doing manual work and for this reason it was not possible for him to say the exact time 3 when the accused came to his house. Mr. Chatterjee further submits that P.W. 1 has stated in cross-examination that he saw his daughter lying on the ground and blood fell on the ground and he could not say the name of the person who came to his house on that night after the incident. Mr. Chatterjee contends that P.W. 1 could not say the reason for assaulting his daughter by the accused. Mr. Chatterjee contends that in the inquest report a different version has been noted regarding the circumstances leading to the alleged occurrence. Mr. Chatterjee thus contends that the prosecution case suffers from incoherence. Mr. Chatterjee contends that P.W. 1 did not raise shout at the time of alleged infliction of assault. Mr. Chatterjee contends that the offending weapon was not seized by the I.O. and the accused was not arrested, but, he surrendered in the Court. Mr. Chatterjee contends that the version of the prosecution case as setforth in the F.I.R. was an afterthought. Mr. Chatterjee contends that the charge sheet was filed after three years and under Section 167(5) Cr.P.C.the learned Court below ought not to have proceeded with the trial.
4. Mr. Chatterjee has referred to the decisions reported in 2008(2)CHN 1024 [Bablu Oraon Vs. State of West Bengal]; 2006(2)CHN 442 [Noyel Barla Vs. State of West Bengal]; 2007(2) Crimes 395 [Shankar Diwal Wadu Vs. State of Maharashtra]; 2001 SCC (Cri) 1070 [Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others]; 2007(1) SCC (Cri) 123 [Gulzar Vs. State of M.P.]; 2008(2) Crimes 19 [Trimbak Vs. State of Maharashtra]; AIR 1967 SC 1027 [Periyasami Vs. State of Madras]; 4
5. Mr. Ganguly appearing on behalf of the State submits that there was discord in the matrimonial life of accused and the informant's daughter and the F.I.R. was lodged by the father of the deceased at the earliest point of time. Mr. Ganguly contends that there was no scope of fabrication. Mr. Ganguly submits that P.W. 1 has stated as to the infliction of assault by the accused. It is contended that in the inquest report also there was mention of infliction of assault by the accused. It is contended that there is no evidence to show that prior to the date of incident the relation between the deceased and the accused was cordial. It is submitted that there is no evidence to show that the husband ever came to take back his wife. Mr. Ganguly contends that so far as the evidence of hostile witness is concerned, it would appear from his evidence before being declared hostile that the name of the accused as assailant was stated. Mr. Ganguly contends that accused was absconding and he surrendered in Court seven months after the incident. Mr. Ganguly submits that the injury was inflicted on the neck which was the vital part of the body and it was sufficient to cause death. Mr. Ganguly contends that when there is eyewitness, the question of motive cannot arise. Mr. Ganguly contends that as per evidence of P.W. 1 the accused assaulted the daughter of the informant 2/3 times and this finds corroboration from the medical evidence. Mr. Ganguly has referred to and cited the decisions reported in 2010(2) SCC (Cri) 711 para 21 & 24 [Gurmukh Singh Vs. State of Haryana]; (2010) 2 SCC 538 Raj Kumar Vs. State of Maharashtra]. 5
6. The learned Trial Judge while passing the judgment observed that there was no discrepancy at all between the statement made by the P.W. 1 and the statement made by the doctor as to the injuries and that the P.W. 1 deposed in a natural way. The learned Judge further observed that from the evidence on record it was clear that it was the accused who actually caused the death of Bouni Bibi.
7. P.W. 1 is the informant Yakub Molla. He has stated that Bouni Bibi was his daughter and the accused is the husband of his daughter. It is in his evidence that on the date of incident at about 11.00 P.M. Bouni Bibi was sleeping on the verandah of his house with her child; suddenly the accused came running to that place and assaulted Bouni Bibi with a 'daw' 2/3 times; as a result Bouni Bibi fell down. It is in his evidence that he was present there at a distance of six cubits. He has stated that the accused suddenly chased him with that 'daw' and out of fear he ran towards the southern side and the accused then fled away towards eastern side. It is in evidence that when he came back to his house he found that Bouni Bibi had already expired and her child was crying. P.W. 1 has stated that he started shouting. In the cross-examination he has stated that the house of the accused is situated at a distance of about one hour's walk from his house; prior to the incident the accused used to visit his house and to take food. He has stated that on the evening of the date of incident Bouni Bibi's son aged about 10/11 years who at that time was staying in the house of accused came to his house; he could not say as to how much time after the 6 arrival of the son of Bouni Bibi, the accused came to his house; on the night of incident he went outside for doing manual work and for this reason it was not possible to say the exact time when accused came to his house; he saw his daughter lying on the ground; blood fell on the ground; he has stated that prior to the incident he had good relationship with the accused.
8. P.W. 2 has stated that he is a High School teacher and he knows P.W. 1. It is in his evidence that on the date of incident he and others were gossiping in the bus stand situated near the house of Yakub; suddenly he heard shouts coming from the house of Yakub and on reaching the spot he found that the daughter of Yakub was lying on the Verandah with bleeding injury on her neck. He has stated further that Yakub and his family members told him that the husband of Baouni Bibi caused the murder and fled away.
9. P.W. 3 has stated that on 7.2.1988 in the morning on getting information he went to the house of P.W. 1 and found that Bouni Bibi was lying murdered. He found serious injury on the neck of Bouni Bibi. This witness was declared hostile.
10. P.W. 4 has stated that on reaching the house of P.W. 1 he found that the daughter of Yakub was lying dead and there was cut injury on the neck of the daughter of Yakub. This witness was declared hostile.
11. P.W. 5 has stated that on getting information in the morning he went to Yakub's house and found that Bouni Bibi was lying dead with cut injury on 7 her neck. He has stated that Yakub told him that his son-in-law caused the death of Bouni Bibi. In the cross-examination he has stated that Yakub stated before all that his son-in-law caused the murder.
12. P.W. 6 has stated that he rushed to the house of P.W. 1 and found that Bouni Bibi was lying dead on the verandah. He has stated that Yakub told him that his son-in-law caused dead of Bouni Bibi. He has stated that about 50 persons were present there including Hasan Ali Molla, the teacher, and Siddique Ali Molla. Yakub told the gathering that his son-in- law caused the death of Bouni Bibi.
13. P.W. 7 stated that on reaching the spot he found that Bouni Bibi was lying dead with injury on her neck; his cousin brother Yakub told him that son- in-law caused the murder of Bouni Bibi.
14. P.W. 8 has stated that Yakub is his uncle. He has stated that Yakub told him that the accused caused the murder of Bouni Bibi. At this stage the witness was declared hostile.
15. P.W. 9 has stated that Yakub Molla is his elder brother and on the night of incident at about 11.00 P.M. Yakub informed him that his son-in-law caused injury to Bouni Bibi.
16. P.W. 10 has stated that Yakub Ali Molla is his father and Bouni was his sister. It is in his evidence that Bouni Bibi was murdered by her husband. He has stated that he was sleeping in his room at that time and his father cried out and asked them to come out as Bouni Bibi was murdered; at the time of incident his sister came to their house for the purpose of visit. In 8 the cross-examination he has stated that when his father cried out it was mid night and after hearing the cry of his father he sat on the bed and thereafter again went to his bed.
17. P.W. 11 is a police officer. P.W. 12 is the police officer who has stated that he went to the village of P.W. 1 and received the written complaint regarding the incident and forwarded the same through constable to the P.S. for starting a specific case.
18. P.W. 13 is the police officer who investigated the case. P.W. 14 is the doctor who held post mortem examination and noted the following injuries:-
"1 One abrasion over right chest wall upper part measuring 1" X 1" abrasion over left scapular region measuring 1 and half inch X half inch.
2. One incised wound over nape of the neck placed side to side measuring 4 inch X 1 inch into bone deep-cutting muscles tissues and having cut mark over fourth cervical vertebra.
3. One incised wound over occipital region on the left side going down and left lateral part of the neck anterior obliquely measuring 4 and half inch into 1 inch into bone deep cutting muscles, tissues and having cut mark over occipital bone on the lower part of left side.
4. One incised wound over mastoid region on the right side measuring one and half inch into one inch into muscle deep."9
19. The doctor has opined that death in his opinion was due to the effect of the injuries, ante mortem and homicidal in nature; the injuries as seen in the dead body were caused by a sharp cutting weapon except abrasion. He has stated that the injuries as noticed by him were caused by more than one stroke. He has stated that from the nature of the incised wounds he was of the opinion that the victim was assaulted by the assailant standing very near to her.
20. P.W. 15 completed the investigation and submitted the charge sheet.
21. From the evidence on record it is clear that P.W. 1 is the only eyewitness of this case. The question, therefore, arises whether the learned Trial Judge was justified relying on the lone testimony of P.W. 1. It is in evidence of P.W. 1 that he and his daughter were lying in the verandah of their house and at about 11.00 P.M. the accused suddenly came and assaulted Bouni Bibi with a 'daw' 2/3 times. It is also in the evidence of P.W. 1 that the accused chased him and he fled away and after coming back home he found his daughter Bouni Bibi lying dead. He has stated that thereafter he started shouting and hearing his shouts the local people came to the place of occurrence after the incident. In the cross-examination he has stated that he reported the matter to the Anchal Pradhan and others. This narration of the incident by P.W. 1 to others has been corroborated by other P.Ws. P.W. 2 has stated that Yakub and his family members told them that husband of Bouni Bibi caused the murder and thereafter fled away. P.W. 5 has stated that Yakub told him that his son-in-law caused 10 the murder. P.W. 5 is a disinterested witness who has a tea stall near the bus stand. In the cross-examination he has stated that he stayed in the house of Yakub for about five minutes and Yakub stated before all that his son-in-law caused the murder. P.W. 6 also stated that P.W. 1 informed him that his son-in-law was the murderer. P.W. 6 is also a disinterested witness. P.W. 7 has a tea stall near the bus stand and also stated that Yakub told him that his son-in-law was the assailant. It is, therefore, the consistent evidence of the P.W.s who came afterwards to the place of occurrence that P.W. 1 told them that the accused was the assailant.
22. Mr. Chatterjee has drawn our attention to the cross-examination of P.W. 1 where he has stated that he went to perform manual work and thereafter came back home. It is the contention of Mr. Chatterjee that P.W. 1 gave different version in the cross-examination. Mr. Chatterjee has referred to the decision reported in AIR 1967 SC 1027 para 6 (Supra) wherein it has been observed as follows:-
"Mr. Sharma next contended that it has been laid down in a series of cases that when the solitary witness in a case has made conflicting statements, it is very risky to rely upon any of the versions and has drawn our attention to a case reported, In re Muruga Goundan, AIR 1949 Mad 628 decided by a Division Bench in which the present Chief Justice of this Court delivered the judgment. We entirely agree. But there are cases and cases. If the matter rests upon the statement of a witness, who has changed the version and there is nothing further to connect the accused with the offence with which he is charged, 11 there would be good ground for acquitting him. We do not think that this is such a case ........."
The said decision is not applicable in the different facts of the instant case. We are of the considered view that while appreciating the evidence of a witness we are to look into the evidence as a whole and taking the totality of his testimony we are to assess the evidentiary value. If we go through the entire evidence of P.W. 1 it would appear that what he has stated is the ocular version of the incident. Nothing has been elicited in his cross- examination as to the contradictions with his earlier statement under Section 161 Cr.P.C. There is no reason to discard his evidence. Moreover, the evidence of P.W. 1 is also consistent with the F.I.R. It does not suffer from any inconsistency.
23. Mr. Chatterjee has drawn our attention to the inquest report where it has been stated that on 6.2.1988 at about 10.30 P.M. Bouni Bibi was feeding milk to the baby on her lap sitting in the verandah; at that time Yakub Ali was warning her daughter and telling her that it would be better to go back to her matrimonial home and the informant also asked her daughter as to why she had come back to her father's house after quarrelling in her matrimonial home. It has also been stated in the inquest report that Bouni Bibi used to have quarrel with her husband from time to time; suddenly from the darkness, her husband Apchar Ali appeared and assaulted her on the neck with sharp cutting weapon and she died instantaneously. It has also been stated in the inquest report that Yakub Ali, the father of the 12 deceased recognised his son-in-law as the assailant and cried out and on hearing the same many people assembled there.
24. As regards the circumstances stated in the inquest report Mr. Ganguly submits that inquest report is not a substantive piece of evidence, but, from the inquest report it is clear that the accused was the assailant and the informant had seen him to inflict assault. It is the contention of Mr. Ganguly that as to the identity of the assailant, the evidence of P.W. 1 also finds corroboration from the inquest report.
25. So far as the inquest report under Section 174 Cr.P.C. is concerned, the police officer is to ascertain the apparent cause of death. There is no duty cast upon the police officer to ascertain who was the assailant or under what circumstances the victim died. The inquest report is not a substantive piece of evidence, but, it can be used for corroboration or contradiction. Thus so far as the name of the assailant is concerned we find corroboration of the inquest report as well. To this extent we can take into consideration that part of the inquest report by way of corroboration.
26. The Autopsy Surgeon (P.W. 14) has noted the injuries. So far as the injury No. 2, 3, 4 are concerned those were caused by a sword or by a sharp cutting knife as stated by the Autopsy surgeon in the cross-examination. P.W. 1 in his examination-in-chief has clearly stated that the accused assaulted Bouni Bibi with a 'daw' 2/3 times. This number of infliction of assault also finds corroboration from the evidence of the doctor. We are, therefore, of the considered view that the ocular version of P.W. 1 also finds 13 corroboration from the medical evidence. So far as the assailant is concerned, the evidence of P.W. 1 has been corroborated by other P.Ws. as discussed above and it also finds corroboration from the inquest report.
27. It appears that after the incident the accused was absconding and he surrendered seven months after the incident. This is also a circumstance which goes in favour of the prosecution. The non seizure of the offending weapon as argued by Mr. Chatterjee does not cast any shadow of doubt on the veracity of the prosecution case. When there is creditworthy and convincing ocular evidence, the question of non-seizure of offending weapon relegates to insignificance. The evidence of P.W. 1 in our considered view is worthy of credence and convincing.
28. Mr. Chatterjee contends that the investigation of the case was not completed within the statutory period as envisaged under Section 167(5) Cr.P.C. and the learned Court below was not justified in proceeding with the trial. It appears that no application was filed before the learned Magistrate under Section 167(5) Cr.P.C. praying for discharge nor any order was passed by the learned Magistrate stopping further investigation. In the case of Nirmal Kanti Roy Vs. State of West Bengal reported in AIR 1998 SC 2322 it has been observed in paras 7, 8, 10 & 11 as follows:
"7. The order stopping further investigation into the offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in the sub-section. The succeeding words in the sub-section confer power on 14 the Court to refrain from stopping such investigation if the Investigating Officer satisfies the Magistrate of the fusion of two premises (1) that in the interest of justice it is necessary to proceed with the investigation beyond the period shown in the sub-section and (2) that there are special reasons to do so.
8. A reading of sub-section (6) further shows that even in a case where the order stopping investigation and the consequent discharge of accused has been made that is not the last word on it because the sub-section opens another avenue for moving the Sessions Judge. If the Sessions Judge is satisfied that "further investigation into the offence ought to be made" he has the power to allow the investigation to proceed. Hence we take the view that the time schedule shown in S. 167(5) of the Code is not to be treated with rigidity and it is not mandatory that on the expiry of the period indicated therein the Magistrate should necessarily pass the order of discharge of the accused. Before ordering stoppage of investigation the Magistrate shall consider whether, on the facts of that case, further investigation would be necessary to foster interest of criminal justice. Magistrate at that stage must look into the record of investigation to ascertain the progress of investigation thus for registered. If substantial part of investigation was by then over, the Magistrate should seriously ponder over the question whether it would be conducive to the interest of justice to stop further investigation and discharge the accused.
10. In Durges Chandra Saha V. Bimal Chandra Saha (1996) 1 SCC 341 : (1996 AIR SCW 42) the situation considered 15 was one relating to S. 167(5) of the Code as amended by the West Bengal Act. The two-Judge Bench held that the consequences envisaged in the sub-section would not befall a case where investigation was completed and charge-sheet was laid, albeit it was only after expiry of the period specified in the sub-section.
11. In our opinion there is no conflict between the aforesaid two decisions and the ratio was applied on the factual position in each case. Nor is it at variance with the view which we have expressed above."
From the above decision it is clear that the time schedule shown in Section 167(5) Cr.P.C. is not to be treated with rigidity and it is not mandatory that the learned Magistrate should pass the order of discharge of the accused on the expiry of the statutory period. It is also clear that when a substantial part of investigation was by then over, the Magistrate should consider whether it would be conducive to the interest of justice to stop further investigation and pass an order of discharge. We are, therefore, of the considered view that at this stage it cannot be urged that the cognizance taken on the basis of the charge-sheet submitted after the expiry of the statutory period was bad in law or that it vitiated the trial.
29. Mr. Chatterjee submits that if the appellant is found guilty, his conviction may be converted from 302 I.P.C. to 304 part II I.P.C. and the sentence may be reduced. Mr. Chatterjee & Mr. Ganguly both have submitted the decisions in support of their respective contentions on this point. In the case of Gurmukh Sing Vs. State of Haryana (Supra) it has been held that 16 when there was no intention or premeditation in the mind of the appellant to inflict injuries to the deceased as were likely to cause death in the ordinary course of nature, considering the evidence including medical evidence it was held that the appellant accused ought to have been convicted under Section 304 part II instead of 302 I.P.C. It has further been held therein that in cases of single injury, facts and circumstances of each case have to be taken into consideration before arriving at the conclusion whether the accused should be properly convicted under Section 302 or under Section 304 part II I.P.C. Their Lordships further held that sentence should be according to the gravity of the offence.
30. From the F.I.R. and from the oral evidence it is clear that there was discord in the matrimonial relationship between deceased and the accused and because of that Bouni Bibi came back to the house of the informant with her child. In the F.I.R. it has been alleged that when the accused was about to strike the informant, he stated that the informant would not have to send his daughter anymore to his house. From the evidence it is also clear that the accused dealt severe blows on the neck 2/3 times and the weapon i.e. 'daw' was a deadly weapon. This infliction of assault coupled with the previous discord in the matrimonial relation and the coming of the accused being armed with deadly weapon at night, are very much indicative of the intention on the part of the accused to kill Bouni Bibi. The element of intention is discernible from the attending circumstances. Having regard to the totality of the circumstances, we are of the considered 17 view that it is not a fit case for converting the conviction from 302 I.P.C to 304 part II I.P.C.
31. Considering the evidence on record we find that the learned Trial Judge was justified in recording the conviction and passing the sentence under the impugned judgment. There is no ground to interfere with the findings of the learned Trial Judge. The impugned judgment is affirmed. The appeal is dismissed.
32. Let a copy of this judgment be sent to the concerned Correction Home where the accused is now detained.
33. Let a copy of this judgment along with the LCR be sent down to the learned Court below immediately.
34. Urgent certified Photostat copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. ) Ashim Kumar Banerjee, J.
I agree (Ashim Kumar Banerjee, J. )