Calcutta High Court
Sukhendu Sur vs State Of West Bengal And Anr. on 2 March, 2007
Equivalent citations: 2007(4)CHN440
JUDGMENT P.N. Sinha, J.
1. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure (in short the Code) is directed against the order No. 151 dated 6.01.07 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Contai in S.T. No. VII/January/2004 thereby rejecting the prayer of the accused persons for further cross-examination of 19 prosecution witnesses as mentioned in the petition dated 2nd January, 2007.
2. Mr. Ganesh Maity, the learned Advocate for the petitioner submitted that concerning unnatural death of Soma Sur there was a U.D. case started by the Contai P.S. and subsequently specific case under Section 302/304B of the IPC was started and the chargesheet was submitted. The place of occurrence is the Contai Co-operative Bank quarter and at top floor of quarter situated at Contai. According to prosecution case the victim was allegedly murdered in a bathroom of that quarter. The said quarter was not accessible to common public and only inmates of the quarter had the access inside the quarter. From the evidence of witnesses different place of occurrence came to the picture during trial. On behalf of the accused persons an application was filed praying for local inspection of the place of occurrence which was rejected by the learned Trial Judge. Challenging the said order the petitioner moved this Court in C.R.R. No. 2166 of 2006 and a learned Single Judge of this Court by order dated 12.12.06 allowed the prayer of the accused petitioner for inspection of the place of occurrence. This Court directed the Investigating Officer (in short the I.O.) and the Secretary of the Contai Co-operative Bank to assist the learned Advocate for the accused petitioner to take local inspection of the place of occurrence. Thereafter, the local inspection was made on 23.12.06. The I.O. could not state topography of the bathroom and the quarter and the other police officer also failed to state the topography of the bathroom and the quarter. The photographer who took the photographs of the bathroom and the quarter also could not throw any light in respect of topography of the place of occurrence.
3. Mr. Maity submitted further that during local inspection a scratch mark was noticed at the bathroom though I.O. in his evidence stated that bathroom was totally broken. During inspection it was revealed that evidence of prosecution witnesses are totally different in respect of position and place of the bank quarter, the bathroom in question, the door of the alleged bathroom, the locking arrangement of the bathroom from inside and other topography of the alleged place of occurrence. Accordingly, on behalf of the defence a prayer was submitted for recalling 19 prosecution witnesses whose names were mentioned in the application dated 2.1.07 before completion of cross-examination of P.W. 29. The learned Judge failed to appreciate the legal principles and erred in law by rejecting the prayer of the accused petitioner.
4. Mr. Maity next contended that photograph marked as material exts. II/4 clearly show crack around the latch of the door but P.W. 29 gave a contradictory evidence on this point. The learned Trial Court failed to appreciate that after inspection of the place of occurrence by the Defence Lawyers fruitful cross-examination should be allowed to establish either the possibility of the prosecution case or the possibility of the defence case. The defence could not cross-examine the prosecution witnesses earlier properly in respect of place of occurrence as the learned Defence Lawyers did not visit the place of occurrence earlier. The order of the learned Court is an abuse of process of Court and it should be set aside. The accused will be prejudiced seriously if the prayer of the defence for further cross-examination of the 19 witnesses is not allowed. In support of his contention Mr. Maity placed reliance on the decisions in Ganesh Roy v. State of Jharkhand reported in 2006 Cr. LJ 4198 and Rajesh K. Kondappa v. State of Karnataka reported in 2006 Cr. LJ 1574 and contended that these decisions show the scope of Section 311 of the Code as well as scope of further cross-examination of witnesses.
5. Mr. S. S. Roy, the learned Advocate appearing for the State submitted that paragraphs 5, 6, 7 and 10 of the written objection filed by the prosecution against the petition filed by the accused dated 2.1.07 are very important. This is nothing but an attempt of the accused to prolong the trial by any means. There is no ambiguity in the testimony of the prosecution witnesses concerned and there is no justifiable ground to recall them. The points mentioned in the petition of the defence as well as wrong evidence of the police officers concerning place of occurrence are matters of judicial consideration by the learned Trial Court at the time of judgment on appreciation of entire evidence in their proper perspective. Some of the prosecution witnesses whom the defence now at a belated stage wants to cross-examine further did not at all visited the quarter of the accused persons and some of them, who are men of Contai, did not enter inside the quarter of the accused persons where the incident took place. Those witnesses cannot be further cross-examined on recall. The order of the learned Judge is correct and proper and there was no flaw in the order.
6. Mr. Kazi Safiullah, the learned Advocate appearing for the de facto complainant drew my attention to the provisions of Sections 137 and 138 of the Evidence Act relating to examination and cross-examination of witnesses. Mr. Safiullah submitted that a witness who has already been examined and cross-examined cannot be recalled for further cross-examination only for the desire of the defence to cross-examine such witness or witnesses further. In this case, there is no scope and ground at all for further cross-examination of the witnesses as prayed for by the defence. The accused persons took several adjournments in the trial from 20.1.04 and charge could be framed only on 1.10.04. Thereafter, again they took adjournments and finally examination of prosecution witnesses started from 16.11.04. On several dates P.W. 1 was examined and cross-examined. P.W.2 was also cross-examined at length for two days. The doctors were also cross-examined at length which lasted for several dates. Thereafter, the first I.O. was cross-examined for at least 5/6 days and so also the second I.O. (P.W. 29) for several dates and his cross-examination is not yet over.
7. Mr. Safiullah next contended that the manner in which the defence is proceeding with the sessions trial clearly indicates that the defence anyhow wants to prolong the trial. Most of the witnesses, the defence wanted to cross-examine further, did not enter inside the Contai Co-operative Bank quarter which is the place of occurrence and further cross-examination of prosecution witnesses relating to topography of place of occurrence and bathroom is absolutely irrelevant and meaningless. Earlier also this Court was moved two three times and there was direction by this Court for expeditious disposal of the trial. Mr. Safiullah placed reliance on a decision of the Supreme Court in Mohanlal Shamji Soni v. Union of India reported in AIR 1981 SC 1346. He contended that the Supreme Court laid down guideline by observing that power to summon any person as witness or to recall and re-examine him can be exercised at any stage of proceeding provided the evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. The order of the learned Additional Sessions Judge is with reasons and the learned Judge applied judicial mind while passing the impugned order and there is no ground at all to interfere with the impugned order.
8. I have perused the contents of the revisional application and the materials on record and seriously considered the submissions of the learned Advocates for the parties. It is evident that the Sessions Trial No. VII/January/2004, now pending in the Court of the learned Additional Sessions Judge, Fast Track, 1st Court, Contai arises out of Contai P.S. Case No. 105 dated 22.8.03 under Sections 498A/302/201 of the IPC. The FIR was lodged by Aswini Maity, father of the deceased Soma Sur. The informant was residing at Calcutta when he received the news of death of his daughter. It appears from the FIR that receiving such news he rushed to Contai and after reaching Contai could realise that the accused persons murdered his daughter and in order to cause disappearance of evidence of the offence of murder introduced a story that the deceased committed suicide by hanging in the bathroom. He noticed injuries on the person of his daughter and clotted blood near her ear. Her tongue was not protruded and there was no stool also and he could realise that it was a case of murder and accordingly the FIR was lodged. It appears that after commitment of the case to the Court of Sessions the trial did not proceed smoothly and, the accused persons took several adjournments at the stage of consideration of charge and there were revisional applications before this Court also. Lastly, the defence moved this Court is another revision being CRR No. 3033 of 2006 when this Court by order dated 12th December, 2006 directed the I.O. and Secretary of the Contai Co-operative Bank to take all necessary steps for the purpose of inspection of the place of occurrence by the learned Advocate for the accused and the place was visited by the defence lawyer on 23.12.06. Thereafter, on 2.1.07 the accused persons filed a petition praying for further cross- examination of the 19 witnesses on the point of topography of the place of occurrence as well as the bathroom of the quarter of the accused persons. The learned Judge by his order dated 6.1.07 rejected such prayer.
9. The evidence of the prosecution witnesses reveal that most of the witnesses did not visit the Contai Co-operative Bank quarter where the accused persons were staying and where the incident took place. The evidence of P.W. 3, the Chairman of the Contai Co-operative Bank reveal that on 20.8.03 at about 10.45 p.m. when he was in his house the accused Hridangsu Sur over telephone informed him that the victim Soma Sur committed suicide in the official quarter. Receiving such telephone he talked with three persons and along with Dilip Maity went to Contai P.S. but did not find the O.C. there. Thereafter, they came to the official quarter of the Secretary of Contai Co-operative Bank and found that door was closed. They knocked the entrance door of the quarter and accused Hridangsu Sur opened the door and when they enquired about the matter the said accused told them that victim Soma Sur went to the bathroom but did not come out. As she did not come out, the accused Sukhendu Sur broke open the door of the bathroom and found that Soma Sur was hanging from the shower-bath with the help of 'orna' i.e. a kind of lady's scarf. Evidence of P.W. 3 reveals that when they went to the official bank quarter of the accused persons no other person was present there and his evidence reveals that they did not enter inside the quarter. After going through the evidence of other witnesses I find other witnesses also did not enter inside the quarter of accused persons. The prosecution in the FIR did not introduce the story that victim was recovered after breaking open the door of the bathroom. It was the defence alibi that accused Sukhendu Sur broke open the door of the bathroom and brought down the deadbody of his wife Soma Sur and kept the deadbody on the varandah. The only person besides the police officer who started about entry into the bathroom is P.W. 22 Nitai Jana who is a sweeper of the said bank and he was declared a hostile witness and thereby favoured the defence and he by his evidence did not favour the prosecution.
10. After carefully going through the cross-examination of the prosecution witnesses I find that all the witnesses were cross-examined at length and I seldom came across such lengthy cross-examinations. I find that some of the cross-examinations were irrelevant, and not only that, indecent. P.W.5, the Executive Magistrate who held the inquest report on the deadbody of Soma Sur was also cross-examined at length and in cross-examination a question was put to him as to why he did not call judicial officers at the time of inquest as the quarters of the judicial officers were near to the Contai Co-operative Bank quarter and they are responsible persons. Such a question is dangerous, irrelevant and ridiculous. In a matter of unnatural death concerning which criminal case would start and the accused would face trial can the judicial officers be asked to become a witness of inquest? This shows how irrelevant cross-examinations were made. The cross-examination concerning inquest is without reason and aim. The purpose of inquest is completely different. The inquest report should not contain the description of all the items or articles found near the place of occurrence as well as the topography of the place of occurrence. The scope of inquest is limited and is confined to ascertainment of apparent cause of death. The inquest report should contain only whether the death was accidental, suicidal, homicidal or caused by any animal and in what manner or by what weapon or the instrument, the injuries on the body of the deceased appear to have been inflicted. The inquest report need not contain overt act of accused persons or the manner in which the accused persons assaulted the deceased and the names of the accused persons or the names of the eye-witnesses or the topography of the place of occurrence. The constant view of the Hon'ble Supreme Court is that the inquest report should be limited and should be confined to ascertainment of apparent cause of death [see, Amar Singh v. Balwinder Singh and Radha Mohan Singh @ Lal Saheb v. State of U.P. 2006(1) SCC(Cri) 661].
11. I have earlier expressed that some of the question were indecent and exceeded limits of cross-examination which failed to maintain the dignity and decorum of a sessions trial. The Executive Magistrate who held the inquest was asked to mention the size and shape of the breast of deceased Soma Sur. It shows the manner of cross-examination which exceeds limit of decency. The prosecution witnesses who did not visit the bathroom and the quarter in question cannot be cross-examined further and the attempt of the defence in this respect is nothing but to delay the trial. Contradictions, if any, are matters of appreciation of evidence at the time of final argument and judgment and the learned Trial Court at the time of delivery of judgment will consider about the contradictions in order to assess or weigh the veracity of evidence of the witnesses. The alleged scratch mark in the bathroom latch or the breaking of bathroom or the topography of bathroom is irrelevant as except I.O. others did not enter inside the bathroom. The Executive Magistrate who held the inquest did it so on the varandah and he also did not enter inside the bathroom. Accordingly, this Court does not find any merit over the defence prayer for further cross-examination, of prosecution witness Nos. 2, 3, 4,5,6, 9, 13, 14, 15, 18,19,20, 21, 22, 24, 25, 26, 27 and 28. Cross-examination of the main I.O. was in progress and he has also been cross-examined at length. After detailed and very lengthy cross-examination of the prosecution witnesses further cross-examination on recall is not permissible. In this connection I place reliance on the decision of the Hon'ble Supreme Court in Nisar Khan v. State of Uttaranchal reported in 2006(2) SCC(Cri) 568. In the reported decision there was an application filed by the accused to recall eye-witnesses after a lapse of more than one year. The Supreme Court observed that recall of witness after a lapse of more than one year and after they were examined, cross-examined and discharged should not be allowed.
12. In the FIR it was not mentioned that deadbody of the deceased was brought out on varandah after breaking open the door of the bathroom. It appears from evidence that it was the defence alibi that the husband Sukhendu Sur had to break open the door of the bathroom and brought down deadbody of his wife Soma Sur from the shower-bath and kept her body on the varandah. The evidence of P.W. 27, the then O.C., Contai P.S., though declared hostile, reveal that he did not ascertain whether door of the bathroom was broken. He was not the I.O. The first I.O. P.W. 28 in his evidence stated that bathroom in question was intact and he did not find that door of the bathroom was broken. The FIR and evidence of prosecution witnesses reveal that the informant and other witnesses saw marks of injury on various parts on the body of deceased Soma Sur. On the basis of such facts and circumstances and evidence question of recall of prosecution witnesses relating to topography of bathroom or the scratch mark of latch of bathroom and other topography of place of occurrence are irrelevant. It appears clearly that the defence now wants to divert the prosecution case in a different direction to mislead the Court and the attempt of the defence to recall as many as 19 prosecution witnesses for further cross-examination is nothing but to prolong the trial.
13. The decisions cited by Mr. Maity on behalf of the defence are not at all applicable in the facts and circumstances of the present matter. In the reported decisions cited by Mr. Maity the Hon'ble High Courts found that there was no proper cross-examination and considering that ground opportunity to cross-examine was allowed. In the present matter all the prosecution witnesses have been cross-examined at length, and in fact, there is no scope of further cross-examination in the facts and circumstances of the present case. The decision cited by Mr. Safiullah in Mohanlal Shamji Soni v. Union of India (supra) is apposite. There the Supreme Court laid down the caution that power under Section 311 of the Code should be exercised only for the just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. In this case, if the defence prayer is allowed after such detailed and lengthy cross-examination of the prosecution witnesses it would lead to undesirable results.
14. In view of the discussions made above, the revisional application having no merit fails and is dismissed.
15. The observations made by this Court are only for the purpose of disposal of the present revisional application and the learned Trial Court would arrive at his own decision on the basis of evidence and materials on record without being influenced in any way by the observations of this Court as this Court did not enter into merit of the main case. Learned Judge is directed to dispose the sessions trial as expeditiously as possible without granting any undue adjournments to either of the parties.
16. Liberty is granted to the learned Advocates for the parties to communicate the gist of the order of the learned Court below.
17. Criminal Section is directed to forward a copy of this order to the learned Additional Sessions Judge, Fast Track, Court No. 1, Contai for information and necessary action.
Later:
18. Let xerox certified copy of this order be given to the parties as expeditiously as possible from the date of making of such application on payment of proper fees and charges.