Calcutta High Court (Appellete Side)
Prem Chand Barman (In Jail) vs The State Of West Bengal on 21 September, 2016
Author: Asha Arora
Bench: Aniruddha Bose, Asha Arora
Form no. J(1)
In the High Court at Calcutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Aniruddha Bose
And
The Hon'ble Justice Asha Arora
C.R.A 875 of 2013
Prem Chand Barman (In Jail)
Versus
The State of West Bengal
For the appellant : Mr. J. Adhikary,
Mr. T. Dhali,
For the State : Mr. Subir Banerjee,
Mrs. Kakali Chatterjee,
Mr. Pratick Bose,
Heard on : 5th September, 2016 and 9th September, 2016
Judgment on : 21st September, 2016
Asha Arora, J.:
1. The appeal at the instance of the accused/appellant is directed against the judgement and order of conviction and sentence dated 12th August, 2013 and 13th August 2013 rendered by the Additional Sessions Judge, Mathabhanga, Cooch Behar in Sessions Trial No. 19(06) 2012 arising out of Sessions Case No. 175 of 2012 whereby the accused has been convicted for the offence punishable under section 302 of the Indian Penal code (hereinafter referred to as the IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- in default of which to suffer rigorous imprisonment for six months for the aforesaid offence.
2. The factual scenario of the prosecution case in brief is as follows :
On 6th December 2011 at 13.40 hours the complainant Soney Barman lodged a written complaint at Mathabhanga Police Station stating that his daughter Shyamali Barman was given in marriage to accused Prem Chand Barman about 7/8 years ago. After marriage his daughter started leading conjugal life in her matrimonial home and had two sons aged about 4½ years and 2 years. The accused was engaged in the work of making 'pandals' in different places. He would leave the house without informing and was away for about seven months. The accused would suspect his wife without any reason. After returning home 3/4 days prior to the date of incident, accused started quarrelling with his wife. On 6th December, 2011 at about 11.30 A.M while the victim (wife of accused) was lifting cow dung in front of the house, the accused assaulted her with a 'kodal' (spade) in consequence of which she died on the spot. On the basis of the aforesaid complaint of Soney Barman (PW 1), the father of the deceased victim, Mathabhanga Police Station Case No. 385 of 2011 dated 06/12/2011 under section 302 of the IPC was registered against the accused/appellant. Investigation into the case by Sub-
Inspector Sujan Narjinary (PW 11) culminated in the submission of the charge sheet under section 302 of the IPC against the accused/appellant.
3. The case being a sessions triable one was committed to the Court of the Sessions Judge, Cooch Behar and therefrom it was transferred to the Court of the Additional Sessions Judge, Mathabhanga, Cooch Behar for trial and disposal. The Trial Court framed the charge for the offence punishable under section 302 of the IPC against the accused/appellant who pleaded not guilty to the arraignment and claimed to be tried. In the course of trial prosecution examined thirteen witnesses and exhibited several documents. Out of these witnesses, PW 1 Soney Barman is the father of the deceased who lodged the FIR (exhibit 1). PW 2 Sushil Barman and PW 3 Sudhin Barman are the co-villagers of the accused. These two witnesses have categorically stated in their evidence that they did not see the incident. PW 4 Saroda Barman is the cousin brother of accused who resides in the same village. This witness also has no personal knowledge regarding the incident. PW 5 Kesob chandra Barman is another co-villager of accused whose evidence is hearsay. Having heard about the incident from PW 1, this witness went to the house of accused and found the dead body of the victim lying in front of the house. He testified regarding the seizure of blood stained earth from the place of occurrence as well as the arrest of the accused by the police in his presence PW 6 Abdul Gani is yet another co-villager of accused having no direct knowledge of the incident. PW 7 Manik Dey witnessed the inquest on the dead body of the victim. He also witnessed the seizure of the weapon of offence (kodal) from the accused. PW 8 Asit Ranjan Roy and PW 10 Bablu Barman are the two witnesses who claimed to have seen the accused proceeding towards the tea garden with a kodal in his hand while they were going to the place of occurrence on hearing hue and cry. According to these two witnesses, when they reached the house of accused, they found his wife lying dead in front of his house. They were informed by the local people that the accused murdered his wife by assaulting her with 'Kodal'. PW 9 Paresh Ch. Saha is just a formal witness who scribed the FIR (exhibit 1). PW 11 Sub-Inspector Sujan Narjinary is the Investigating Officer of the case. PW 12 Abu Bakkar Miah is a formal witness of seizure of the wearing apparels of deceased and PW 13 Dr. N. Das is the Medical Officer who held autopsy on the corpse of the victim.
4. Defence version, as projected from the suggestions given to prosecution witnesses in cross examination as well as from the answers given by the accused during his examination under section 313 of the CrPC is innocence, point blank denial of prosecution case and false implication. It was suggested on behalf of accused to PW 1 in cross examination that deceased had illicit relation with Naresh Barman, the elder brother of the accused and when the accused inquired about it from the deceased, she picked up a quarrel with him. It was also suggested to some of the prosecution witnesses in cross examination that the victim sustained injuries due to accidental fall while doing domestic work and taking advantage of the accidental death of the deceased, PW 1 falsely implicated the accused in connivance with others. No evidence has, however, been adduced to substantiate the defence case.
5. On conclusion of trial and after hearing the learned counsel for the parties, the Trial Court passed the impugned judgement and order of conviction and sentence for the offence punishable under section 302 of the IPC.
6. The point for determination is whether the conviction and sentence of the appellant for the offence punishable under section 302 of the IPC is sustainable.
7. Learned counsel for the appellant strenuously argued that the post occurrence conduct of the accused is the only circumstance appearing in evidence which is not sufficient to form the basis of conviction. Apart from the fact that the appellant was found in the nearby tea garden with the alleged weapon of assault, there are no other circumstances from which the inference of guilt could be conclusively drawn. Placing reliance on the case of Matru alias Girish Chandra Versus The State of Uttar Pradesh reported in 1971(2) Supreme Court cases 75 learned advocate for the appellant sought to impress upon us that the subsequent conduct of the accused in absconding does not by itself necessarily lead to a conclusion of guilt. The act of absconding though a relevant piece of evidence is to be considered with other evidences which, according to the learned advocate for the appellant, is wanting in the case before us. Further submission on behalf of appellant is that the factum of recovery and seizure of the weapon of assault could not be proved by credible evidence. According to the learned advocate for the appellant, the evidence of PW 7 who deposed regarding the seizure of 'Kodal' from the possession of the accused, is not worthy of credence. It is also the contention of the learned advocate for the appellant that the recovery and seizure of the 'Kodal' is of no consequence in view of the fact that it was not subjected to forensic examination to ascertain whether it was actually used by the accused for the commission of the offence. It has also been argued that failure on the part of the accused to explain during his examination under section 313 of the CrPC the circumstances appearing in evidence will not enure to the benefit of prosecution in view of the settled principle of law that prosecution must succeed on the strength of its own case. To buttress his submission learned advocate for the appellant referred to the case of Sharad Birdhichand Sarda Versus State of Maharashtra reported in (1984) 4 Supreme Court cases 116. Another limb of argument on behalf of the appellant is that the incident was the fallout of a sudden quarrel without any premeditation so the case falls clearly within Exception 4 to section 300 of the IPC. Under the circumstances, conviction under section 302 of the IPC is not justified. To fortify his submission, learned advocate for the appellant relied on the case of Surinder Kumar Versus Union Territory, Chandigarh reported in (1989) 2 Supreme Court cases 217.
8. On the other hand, the learned counsel for the State countered that the circumstantial evidence conclusively proves the guilt of the accused/appellant who has rightly been convicted for the offence under section 302 of the IPC.
9. We are not impressed with the argument that on facts the case before us falls within Exception 4 to section 300 IPC. The decision reported in (1989) 2 Supreme Court Cases 217 (Surinder Kumar Versus Union Territory, Chandigarh) referred on behalf of appellant is not applicable being clearly distinguishable on facts from our present case which is based wholly on circumstantial evidence. Excepting PW 1 none of the witnesses have stated that the incident was the outcome of quarrel. Even PW 1 admitted in his cross- examination that he did not see the incident. Paresh Barman, brother of accused informed PW 1 over phone that accused murdered his wife by assaulting with 'Kodal'. The said Paresh Barman has not been examined. In the absence of any ocular witness to the incident, we are unable to accept the submission on behalf of appellant that the incident was the fallout of a quarrel.
10. Coming to the merits of the case, there being no ocular witness to the incident, prosecution case hinges entirely on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, success of prosecution depends on the availability of a complete chain of circumstantial evidence so as to lead to the only conclusion that the offence has been committed by the accused alone. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Now in the case before us the incriminating circumstances relied on by prosecution may be broadly enumerated as follows :
(1) The victim was found lying dead in front of the house of accused. (2) Homicidal death of the victim due to the injuries inflicted by Kodal (Spade). This piece of incriminating circumstance is sought to be proved by the medical evidence of the autopsy surgeon (PW 13) which is in conformity with the prosecution case as regards the cause of death of the victim.
(3) Post occurrence conduct of the accused. Immediately after the incident accused was seen (by PW 8 and PW 10) proceeding towards a tea garden nearby with a kodal.
(4) Recovery of the weapon of offence (Kodal) from the possession of the accused.
(5) Motive for the commission of the crime. (6) Silence of the accused on being questioned during his examination under section 313 of the CrPC regarding the circumstances appearing in evidence against him.
11. It is not in dispute that the victim was found lying dead in front of the house of accused. This fact has been testified by PW 1, PW 5, PW 6, PW 7, PW 8, PW 10, and PW 11. To prove the homicidal death of the victim, prosecution relied on the evidence of PW 13 Dr. N. Das who held post mortem examination on the corpse of deceased on 06/12/2011 and found the following injuries :
"(1) Lacerated injuries over face and nose leading to disfiguration of face and nose.
(2) Abrasion on upper and lower lips with blood staining over facial region.
(3) Two linear superficial cut marks on back of the neck. Profuse blood within haematoma on nape of the neck. C1 & C2 fractured with spinal cord abrasion."
The autopsy surgeon opined that death was due to shock due to bleeding from the injuries noted in the post mortem report (exhibit
10). PW 13 categorically asserted in his evidence that death was homicidal in nature and the injuries were caused by heavy and hard blunt weapon. Though the weapon of offence (Kodal) was not shown to PW 13 in Court, his unequivocal assertion in evidence as well as in the post mortem report (exhibit 10) that the injuries were caused by blunt, heavy and hard weapon is clearly in conformity with the prosecution version that the victim was assaulted with a kodal. Therefore omission to produce the weapon of assault before the post mortem doctor during his evidence does not affect the credibility of the prosecution case. The evidence of PW 13 as to the injuries found on the person of deceased and his opinion regarding the cause of death remained unchallenged in cross-examination. Curiously enough, it was in vain suggested to PW 1 in cross-examination that the victim sustained injuries due to accidental fall which resulted in her death. Similar futile suggestion in cross-examination was given to PW 5, PW 8 and PW 10 but accused did not venture to pose any such suggestion to the autopsy surgeon whose opinion as to the homicidal death of the victim remained unassailed in cross-examination. Evidently, the case of prosecution regarding the cause of death of the victim as narrated in the FIR (exhibit 1) which was lodged with utmost promptitude (at 13.40 hours) on the date of incident is corroborated by the medical evidence of the doctor who held post mortem examination. It has succinctly been established by convincing evidence that the death of the victim was homicidal in nature caused due to the injuries mentioned in exhibit 10.
12. A vital circumstance connecting the accused with the crime has been unfolded in the evidence of PW 8 and PW 10. The relevant portion of the evidence of PW 8 is reproduced hereunder :
"The incident occurred on 06.12.2011. At about 10/11 A.M on that day I was in the market at Laxmierhat. I have heard the shouting and noise and I have gone to the P.O. On the way I have seen the accused person Prem Chand Barman to go towards the tea garden with a blood stained 'kodal' in his hand. But I have gone to his house and found his wife lying dead in front of his house.
Many other persons also assembled. Laxmikanta Barman and others of that locality disclosed that Prem Chand Barman committed murder of his wife by assaulting with 'kodal' and fled away."
The evidence of PW 8 could not be demolished in cross-examination. In course of cross-examination no contradiction could be pointed out in the evidence of this witness in relation to his statement before the Investigating Officer. Being quizzed in cross-examination PW 8 affirmed having stated to the police officer during investigation that hearing noise and shouting he was going towards the place of occurrence and found the accused proceeding towards the tea garden with a blood stained Kodal. Nothing could be elicited in the cross- examination of PW 8 to discredit his sworn version. His evidence appears to be spontaneous and credible. No motive could be attributed to PW 8 for deposing falsely against the accused. Nothing has emerged in the cross-examination of PW 8 to show that he had any axe to grind against the accused. His evidence is beyond reproach. PW 10 corroborated the version of PW 8 in the following manner :
"I was in the market at Laxmierhat. Hearing noise and shouting we have gone to the P.O. We have seen the accused person to go to the tea garden with a Kodal in his hand. Reaching near his house we have seen his wife lying dead in front of his house. Thereafter, we have surrounded the accused person within the tea garden.
Subsequently, police came to the tea garden and arrested the accused person."
PW 10 unfalteringly iterated in cross-examination that on the way he had seen the accused with a kodal in his hand and he went towards the tea garden. This witness is neither related to the complainant nor inimical to the accused so there is no reason for him to depose falsely against the accused. At this juncture it is worthwhile to mention that the evidence of PW 8 and PW 10 is supported by the testimony of PW 7 to the extent that he deposed regarding the arrest of the accused from a tea garden nearby along with a kodal. Immediately after the incident PW 8 and PW 10 saw the accused proceeding towards a tea garden nearby with a 'kodal' and on reaching the place of occurrence they found the dead body of the victim lying in front of the house of accused. The evidence of PW 8 and PW 10 stating that they saw the accused proceeding to the tea garden with a kodal in his hand is clearly relevant and admissible under section 6 of the Indian Evidence Act as res gestae.
13. Yet another significant incriminating circumstance is the recovery of the weapon of offence from the possession of accused. The factum of recovery of the 'kodal' from the possession of the accused has been testified by PW 1, PW 7 and PW 11. PW1 father of deceased stated in his evidence that being informed by Paresh Barman over phone that accused murdered his wife by assaulting her with kodal (spade), he went to the house of accused and found the victim lying dead in front of the house. PW 1 further deposed that on search he saw the accused in the tea garden nearby with a kodal in his hand. He also stated that the kodal which was used as a weapon of offence by the accused was recovered by the police from his possession and seized under a seizure list. Surprisingly, this part of the evidence of PW 1 remained unchallenged in cross-examination. The factum of recovery and seizure of the 'Kodal' from the possession of the accused as testified by PW 1 has not been denied by way of suggestion in cross-examination to this witness. In course of cross-examination it was in vain suggested to PW 1 that taking advantage of the accidental death of the victim due to fall, he has falsely implicated the accused in connivance with others. It is significant to mention that accused did not venture to give any such suggestion to the autopsy surgeon that the injuries on the person of deceased were caused due to accidental fall or that the death was accidental. On the contrary, the categorical assertion of the post mortem doctor that death was homicidal in nature due to the injuries caused by hard blunt weapon remained virtually unassailed in cross-examination. Furthermore, even in his examination under section 313 CrPC accused made no such assertion that his wife sustained injuries due to accidental fall which resulted in her death. Therefore the suggestion given to PW 1 in this regard is of no avail. Regarding the plea of false implication, no motive could be attributed to PW 1 for inventing a false charge of murder against the accused. It is most unlikely that the father of the victim would falsely implicate an innocent person to protect the real murderer of his daughter. Prompt lodging of the FIR by PW 1 immediately on being informed about the incident eliminates the possibility of concoction or fabrication in the prosecution case or false implication of accused. The evidence of PW 1 is creditworthy and instils confidence.
PW 11 is the Investigating Officer who recovered and seized the weapon of offence from the possession of accused on the date of incident at 15.15 hours that is, within a few hours of the incident under a seizure list (exhibit 4) which was prepared by him on the spot. PW 11 narrated the factum of recovery and seizure of the weapon of offence in the following words : " The accused was detected inside the local tea garden with a kodal in his hand. I arrested the accused and seized the kodal as per seizure list in presence of the witnesses. This is the seizure list written, prepared and signed by me (marked exhibit 4). I also labelled the seized kodal on the spot." The seizure list (exhibit 4) prepared by PW 11 contemporaneously on the spot lends tremendous support to his testimony. The evidence of PW 11 hereinabove referred remained unassailed in cross-examination. This apart, the testimony of PW 11 regarding recovery and seizure finds credence from the evidence of PW 7 an independent public witness. PW 7 testified in his evidence that on the date of incident he was near the place of occurrence in connection with his work where he saw the police arrest the accused from a tea garden nearby with a 'kodal' in his hand. He also saw the dead body of a lady lying at the place of occurrence. PW 7 identified his signature on the seizure list which has been marked as exhibit 4/1. The recovery and seizure of the kodal from the possession of accused in presence of PW 7 as testified by him has not been specifically challenged in cross-examination. No reason could be assigned to PW 7 for deposing falsely against the accused. Nothing could be elicited in the cross-examination of PW 7 to disbelieve his sworn version. It is true that the seized kodal was not shown to PW 7 in court but on account of such omission on the part of prosecution the evidence of a reliable witness cannot be discarded. The factum of recovery and seizure of the kodal from the possession of the accused has been convincingly proved by credible evidence. Significantly, no explanation is forthcoming from the accused (during his examination under section 313 CrPC) on the point of recovery of a kodal from his possession.
14. This now brings us to the motive for the commission of the crime. It is true that in a case based on circumstantial evidence motive assumes much significance but absence of proof of motive cannot be a ground to put the prosecution case out of Court where the circumstances relied on by prosecution are proved by credible and unimpeachable evidence. Interestingly, in the case before us, the motive for the offence has been spelt out by the accused himself by way of suggesting to PW 1 in cross-examination that in the absence of her husband (accused), the victim would maintain illicit relation with Naresh Barman-the elder brother of accused who came to know about the said relationship. Though PW 1 denied this suggestion, it has been averred in the FIR lodged by him that the accused suspected his wife. It is clear that the motive for the commission of the offence has been projected by the accused himself in course of cross-examination of PW
1.
15. Regarding lapses in investigation as referred by the learned counsel for the appellant, the law on the point is well settled that accused cannot be acquitted solely on account of defects in investigation. The credibility of prosecution case proved by reliable evidence cannot be corroded due to defective investigation. For the fault of prosecution the perpetrator of a heinous offence cannot go scot free. Therefore the argument in this regard in devoid of merit.
16. It necessarily follows from the foregoing discussion that the various links in the chain of circumstances have been established by clinching and unimpeachable evidence. The cumulative effect of the circumstantial evidence discussed leads to the only conclusion that the accused alone committed the murder of the victim. Having said that, it is expedient to advert to the fact that non explanation by the accused of the circumstances appearing in evidence against him forms an additional link in the chain of circumstances. During his examination under section 313 of the CrPC accused maintained silence when questioned regarding the various incriminating circumstantial evidence including the cause of death of his wife and the recovery of the kodal that is, the weapon of offence from his possession. At this juncture it is pertinent to reproduce the questions which were posed to the accused by the Trial Court during his examination under section 313 of the CrPC and the answers given by him which are as follows:
"Q.1. Is it true that 13 (thirteen) number of witnesses have been examined in this case in your presence and you have heard and learnt the evidences of the witnesses?
Ans. Yes, I heard the evidences of the witnesses. Q.2 From the evidences of the witnesses I am to ask you some questions, but you are not bound to give the answer, yet if you intend to give the answer you are to understand the question fully and completely, as because your answer may be used against you in this case or in any other case in future as evidence. Do you understand my point? Are you willing to give the answer?
Ans. Yes, I understood. I will answer.
Q.3. From the evidence of witnesses it appears that hearing noise and shouting the witnesses rushed to your house and on the way found you going towards the Tea garden with a blood stained "Kodal" in your hand and reaching near your house the witnesses have seen your wife lying dead within pool of blood in front of your house and learnt from others that you assaulted your wife with "Kodal" you have caused her murder and fled away - What you have to say in this respect? Ans. I am innocent.
Q.4. The witnesses have deposed that many of them have kept you surrounded in the Tea Garden and the information of the incident was given to the police then police came and found you inside the Tea Garden with the blood stained "Kodal" in your hand and arrested you-What you have to say in this respect? Ans. I am innocent.
Q.5. The witnesses also disclosed that police made inquest over the dead body of your deceased wife and prepared the inquest report in presence of the witnesses and the inquest report has been admitted in evidence on proof - Have you anything to say in this respect?
Ans. I have nothing to say.
Q.6. The P.M Report having been proved has been admitted in evidence and marked Ext. 10 - What you have to say in this respect?
Ans. I have nothing to say.
Q.7. P.W. 9 has proved the F.I.R and that has been marked Ext. 1
- Have you anything to say in this respect? Ans. I have nothing to say.
Q.8. P.W. 11 has proved the works of investigation in this case and the witness has proved the inquest, the seizure list and the label - What you have to say in this respect? Ans. I have nothing to say.
Q.9. The seized alamats having been identified and proved are marked Mat. Ext. 1 (Collectively) - Do you have anything to say in this respect?
Ans. I have nothing to say.
Q.10. Have you any other thing to state before the Court? Ans. No. Q.11. Are you willing to examine any witness in defence? Ans. No."
It is clear that on being asked, accused maintained silence and offered no explanation regarding the various incriminating circumstances including the cause of death of the victim and the factum of recovery and seizure. This itself provides an additional link in the chain of circumstances. The totality of the circumstances proved by cogent evidence leaves no room for doubt that the accused alone is the perpetrator of the offence. Having reached this conclusion we find that the decisions reported in AIR 1952 Supreme Court 343 (Hanumant Versus State of Madhya Pradesh), (1984) 4 Supreme Court Cases 116 (Sharad Birdhichand Sarda Versus State of Maharashtra) and 1971 (2) Supreme Court Cases 75 (Matru alias Girish Chandra Versus The State of Utter Pradesh) are not apposite for the purpose of our present case being clearly distinguishable on facts.
17. Consequently, we are of the firm view that the appellant failed to make out any case for interference with the judgment and order of conviction and sentence passed by the Trial Court.
18. The appeal is accordingly dismissed.
19. A copy of this judgement be sent to the Superintendent of the concerned Correctional Home.
20. A copy of this judgement along with the LCR be sent forthwith to the Trial Court.
21. Urgent photostat certified copy of this judgement, if applied for, shall be given to the parties upon compliance of requisite formalities.
(Aniruddha Bose, J.) (Asha Arora, J.) I agree.