Calcutta High Court (Appellete Side)
Prasun Datta vs The State Of West Bengal on 17 December, 2013
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Criminal Appellate Jurisdiction
Present:
The Hon'ble Mr.Justice Jayanta Kumar Biswas
and
The Hon'ble Mr.Justice Subal Baidya
CRA No. 682 of 2008
Prasun Datta
v.
The State of West Bengal
Mr. Sudipto Moitra
Mr. Debasish Kar
Mr. Shymal Deb .....for the appellant.
Mr. Manjit Singh, Public Prosecutor
Mr. Navanil De .....for the State.
Heard on : June 11,12,14,17,21,24,25,26 & July 12, 2013
Judgement on: December 17, 2013
Jayanta Kumar Biswas, J:- The appellant is aggrieved by the judgement of
the Additional District & Sessions Judge, Barackpore, North 24 Parganas dated
August 21,2008 in ST 3(6)07 convicting him under s.302 IPC and the order of the
judge dated August 22, 2008 sentencing him to life imprisonment and imposing
Rs.5000 fine, in default to suffer a six-month simple imprisonment.
The FIR No.65 was registered under ss.448/325/326/307/34 IPC at
Titagarh police station in Barrackpore sub-division of the district North 24
Parganas on March 7, 2007 at 9.25 p.m. The appellant's wife, the victim's
daughter, in her written information alleged that because of previous grudge the
appellant entered the house of the victim, the appellant's father-in-law, with two
other persons, caused injuries on the victim's abdomen, back, cheek, neck with
some sharp thing and hit the victim on the head with some heavy thing with a
view to killing the victim; and that the grievously hurt victim was in a nursing
home.
According to the prosecution, the victim died at the SSKM Hospital on
March 10, 2007 at 11.45 a.m. The appellant was arrested from his residence on
March 10, 2007 at 7.05 p.m. The investigating officer's prayer to add s.302 was
allowed on March 11, 2007. The officer prepared a seizure list showing recovery
of a knife on March 12, 2007. The charge-sheet dated April 25, 2007 was
submitted under ss.448/302 IPC. The additional sessions judge framed charges
under ss.449/302 IPC on June 20, 2007. The appellant pleaded not guilty and
claimed to be tried.
Between July 20, 2007 and May 27, 2008 the prosecution examined the
following witnesses:- PW1-the de facto complainant ( the victim's daughter);
PW2-a nursing home doctor; PW3-a son of a predeceased elder brother of the
victim; PW4-the victim's wife ( the appellant's mother-in-law); PW5-wife of a
predeceased younger brother of the victim; PW6-a relation of the victim by
marriage; PWs 7 & 8-two nephews of the victim; PW9-a police constable; PW10-
the nursing home proprietor; PW11-the doctor called in by the nursing home;
PWs 12 & 13-two police ASIs; PW14-a witness to the seizure list dated March 12,
2007; PW15-the doctor examining the victim at SSKM Hospital; PW16-the doctor
under whose treatment the victim was placed at SSKM Hospital; PW17-the
doctor doing the post mortem on the victim; PW18-the investigating officer.
The prosecution exhibited the following documents:- Ex1-written
information of the offences dated March 7, 2007; Exs 2 & 3-two seizure lists
dated March 7, 2007; Ex4-case history form of nursing home dated March 7,
2007; Ex5-application dated March 7, 2007 to admit the victim to nursing home;
Ex6-seizure list dated March 11, 2007; Ex7-nursing home treatment sheet; Ex8-
seizure list dated March 12, 2007; Ex9-hospital case report dated March 10,
2007; Ex10-hospital bed head ticket dated March 10, 2007; Ex11-death
certificate ; Ex12-post-mortem report dated March 11, 2007; Ex13-rough sketch
map of the scene of the crime dated March 7, 2007; Ex14-appellant's RG Kar
Hospital outdoor patients' ticket dated March 8, 2007; Ex15-appellant's s.161
statement dated March 12, 2007; Ex16-extract of Titagarh PS GD No.1289 dated
March 12, 2007; Ex17-challan of exhibits dated March 15, 2007 sent to FSL;
Ex18-FSL report dated September 5, 2007.
The appellant was examined under s.313 CrPC on April 15, 2008. Between
May 2, 2008 and May 27, 2008 the appellant examined the following witnesses in
his defence:- DWs 1 & 2-two doctors of BNBose Hospital; DW3-the appellant's
younger sister; DW4-the appellant himself. The appellant exhibited the following
documents:- ExA-injury report of BNBose Hospital doctor dated March 7, 2007;
ExB-referral certificate of BNBose Hospital dated March 7, 2007. The appellant
proved his signature(ExC) on the seizure list dated March 12, 2007(Ex8).
Relevant part of examination-in-chief of PW1, Sarmila, is quoted below:-
"For the first four year prior to the incident I have been residing in my father's
house at Jayhind Palli,,Titagarh. with my son. My father's name os Jatindra Mohan
Sarkar. He was murdered by my husband.
As the torture by my husband became unbearable I started to residing in my father's
house with my son. Incident took place on 7.3.07 at about 8 PM. Me and my mother were cooking
in the kitchen in the first floor of my father's house at Jayhind Palli. My father was watching TV
in the adjoining room. We heard groaning sound from the adjoining room and we rushed out and
found two unknown persons running out and scaling down the staircase. When I entered my
father's room, I found my husband Prasun Dutta standing in the room with a knife in his hand
stained with blood. My father was lying on the floor of the room groaning. My jethtuto dada and
kakima rushed in when I shouted. They took out clothes from inside the mouth of my father and
took him to the Panacia nursing home which is about 5 minutes walking distance from our
house. Prasun my husband, fled after seeing me .My father sustained injuries on his cheek, on
the stomach and on the back. My father told me that Prasun had hit him by a knife."
Examination-in-chief of PW4, Sarmila's mother, is quoted below:-
"Jatindra Mohan Sarkar is my husband. He was murdered. On 7.3.07 at about 8
PM my husband was watching TV sitting in the room and me and my daughter Sharmila
were engaged in kitchen adjoining to the said room. Suddenly we heard groaning sound
from the room and on opening the kitchen door we have seen two unknown persons
standing on the door ofroom of my husband and on seeing us they fled away scaling
down the staircase. After entering the room of my husband we found Prasun standing on
the floor of the room with a knife in his hand stained with blood and my husband was
lying on the floor. We shouted and Joydip and his wife rushed in. Joydip removed the
cloth from the mouth of my husband. My husband told me that Prasun had stabbed
him. Prasun is present and identified. Joydip and his wife took my husband to the
Panacia nursing home. and me and my daughter Sharmila followed them. My husband
died on 10.3.07 at about 11.30 to 5 AM at PG Hospital, Calcutta. He was shifted on the
same day to PG hospital. I could not talk to my husband while he undergoing treatment
at Panacia nursing home because I was not permit to meet him as he was in ICCU."
Examination-in-chief of PW3, Jaydip, Sarmila's cousin, is quoted below:-
"I reside at Jayhind Pali in the same house where my uncle Jatindra Mohan
Sarkar resided. The accident took place on 7.3.07. at about 8 PM. I heard Sharmila my
sister's shouting and I rushed to my kaka's room and found him lying on the floor. My
sister Sharmila and her mother Renu Sarkar were present inside the room. I called a
rickshaw and removed the cloth from the mouth of my kaka. My kaka told me that
Prasun had stabbed him. I was interrogated by police in connection with this case
Prasun is present and identified."
Examination-in-chief of PW5, Suchitra, Sarmila's aunt, is quoted below:-
"Jatindra Mohan is my bhasur. We resided in the same house. My bhasur resided
on the first floor. We reside on the ground floor. Jatindra Mohan resided on the first floor
with his wife, his daughter Sharmila and grandson. My bhasur was murdered on 7.3.07.
On that day during the night at about 8 PM I was watching TV on my ground floor
room. Suddenly I heard shouting. Initially I could understand whose voice it was. After
coming out I heard Sharmila shouting. I rushed to the first floor and had seen my
bhasur was lying on floor in injured condition. Sharmila and her mother was there. My
bhasur told in low voice that Prasun inflicted the injury on his neck. Joydip called the
rickshaw and me and Joydip took my bhasur to Panacia nursing home. Prasun is
present and identified. My bhasur died on 10.3.07 at PG Hospital, Kolkata."
Relevant part of examination-in-chief of PW17 is quoted below:-
"After P.M. examination I found the following:
1.At the back in between thorasic 7th and 8th vertibra there is a small penetrating wound measuring ½ inch x ¼ inch with depath of ½ inch it was situated deep to muscle one stich was given on it.
2. At the left arm at the back there was penetrating wound measuring 1 inch x 1/2 inch with a depth of ½ inch to the muscle.
3. At the abdonimal wall close to the mid line at the left side there were two penetrating wound of 1 inch x ½ inch with a depth of 3 inch injury in the bludder wall.
4. At left side and below to the clavicle there was a penetrating wound of ½ inch x ¼ inch and deep to the muscle.
5. At the left side of the cheek there was two stitches for a area of 1 inch into ½ inch into the muscle deep injury.
6. Bruise at the right wrist joint of 1 inch x ½ inch.
7. At the spinal cod and adjacent area of T7 and T8 vertebra in the bludder I found it was injured infected and omental localisation was there. In other findings I got abdominal caviting was filled and omental bludder injury noted. In my opinion death was due to the effect of injuries noted above ante mortem and homicidal in nature. The report was duly prepared and signed by me marked Ext.12. The injuries are mentioned may be effected by this knife (Mat.Ext.I) shown to the witness. Bruise can be the result of hit by hard and blunt substance. The injury I have noted in my PM could not result from scuffling. When a person aged 74 years is pitted against a young person of 34 years."
PWs 2 & 11 are the doctors who treated the victim at Panacea nursing home where the victim was taken first. Ex4 is the case history form filled in and signed by PW2. Besides recording bleeding cut injuries, PW2 recorded that the victim was "conscious disoriented." PW11 said that the victim "was conscious"
and "able to talk", and that the victim told him "that the injuries were inflicted by Prasun Dutta, his son-in-law alongwith his associates." In cross-examination he said, "I asked the patient regarding the person who caused the injury. As told by the patient I recorded it that injuries were inflicted most probably by some unknown persons." He proved the treatment sheet (Ex7).
PWs 15 & 16 are the SSKM Hospital doctors. PW15 is the medical officer who examined the victim first on March 10, 2007 at 10.32 a.m. She said that "due to the effects of injuries" the victim "was suffering from traumatic paraplagia" and "was unconscious." She proved the injury report (Ex9) recording that the victim had been attacked and injured by the appellant. PW16 is an MD student. On March 10,2007 SSKM Hospital emergency placed the victim under his treatment. He said that the "graspin" victim died within 10-15 minutes of his admission to his department. He proved the victim's bed head ticket (Ex10) and the victim's death certificate (Ex11).
PWs 6, 7 & 8 are three relations of the victim; they all visited the nursing home after the victim was admitted thereto. PW6, a relation of the victim by marriage, said that the victim told him that the appellant had stabbed him. PWs 7 & 8, two brothers, are two nephews of the victim. They also said that the victim told them that the appellant had stabbed him. They were witnesses to the seizure list (Ex2) prepared at the nursing home on March 7, 2007 at 9.45 p.m. PW7 was a witness also to the seizure list (Ex3) prepared at the scene of the crime on March 7, 2007 at 10.55 p.m. PW10 is the proprietor of the nursing home. He said that he took PW6 (he was also the Chairman of North Barrackpore Municipality) to the victim, and that when PW6 asked the victim about the incident, the victim said that the appellant had injured him.
PWs 9, 12 & 13 are the police witnesses. PW9 is a constable .He proved his signature on the seizure list dated March 11, 2007 (Ex6) showing seizure of the victim's blood, wearing apparels, etc. on March 11, 2007 at 6.20 p.m. PWs 12 & 13 are two police ASIs. They also proved their respective signatures on Ex6.
PW18 is the investigating officer. He proved the seizure list dated March 7, 2007 (Ex2) prepared at the nursing home; the seizure list also dated March 7, 2007 (Ex3) prepared at the scene of the crime; rough sketch map of the scene of the crime dated March 7, 2007 (Ex13); a xerox of the appellant's RGKar Hospital outdoor patients' ticket dated March 8, 2007 ( Ex14-with the appellant's objection); the seizure list dated March 12, 2007(Ex8) showing recovery of the weapon of offence; the seized knife (MatExI); the challan of exhibits dated March 15, 2007 (Ex17) sent to FSL; and the FSL report dated September 5, 2007 (Ex18).
PW14 is a witness who signed the seizure list dated March 12, 2007 (Ex8) showing recovery of the weapon of offence by the investigating officer from a bush on the back north-east corner of the appellant's house on March 12, 2007 between 7.05 p.m. and 7.20 p.m. He said, "I accompanied the police to the house of Prasun Dutta and on his identification police seized one knife stained with dry blood. Prasun told us that he killed his father in law with that knife." He identified the knife (MatEx1). In cross-examination he said, "The accd. brought of the night from a bush but I have not seen the bush. I was not present while he was brought out."
In his examination under s.313 CrPC the appellant said that at the date and time of the incident his wife, Sarmila, PW1, was not at home; that during altercation between him and the victim, the victim suddenly becoming very heated slashed at his throat with a knife; that MatExI, the knife, was not seized from him; and that people of his house gave PW18, the investigating officer, his RGKar Hospital treatment paper, Ex14, the outdoor patients' ticket.
Examination-in-chief of DW1, the BNBose medical officer, is quoted below:-
"On 7.3.07 I was posted as medical officer at B.N.Bose hospital. On that day at about 9.30 PM I examined one Prasun Dutta and I found stab injury measuring ¾ inch X 1 inch but in the report it is not mentioned where such injury was found. The patient stated that the unjury was inflicted by his father in law by a kitchen knife. The patient was brought by Jhuma Sur, wife of Debasish Sur. The patient was admitted in to the hospital and then he was referred to R.G. Kar hospital for treatment. The injury in my opinion cannot be suicidal as there is no hesitating injury. This is the carbon copy of the report prepared in mechanical process by me marked Ext.A."
In cross-examination DW1 said as follows:-
"The local of the injury has not been mentioned in the report. I also did not mention about the dimension of the injury. There is nothing in Ext.A that I admitted the patient or I recommended further treatment at R.G.Kar hospital. I did not inform the police and there is no reflection that it was treated as police case. Though there is specific column provided for the such recorded. I have not obtained the signature of Prasun Dutta. I would have advised the patient for further treaement if the condition of the patient was serious. In col. no.13 I have not recorded any advice for the patient. I nor mally record the history narrated by patient or her attendant carefully. Self inflicted injury b y sharp cutting weapon may be hesitant or may not be so. I have not mentioned whether there was profused bleeding from the injury in my report. I would have mentioned if there was profused bleeding from the injury."
Examination-in-chief of DW2, the other BNBose doctor, is quoted below:-
"I was posted as General Surgeon in B.N.Bose hospital and on 7.3.07 one Prasun, Dutta aged 39 years was admitted under my care. He was referred to R.G.Kar hospital for treatment. He sustained stab injury on the throat which was stitched. The patient was alcohlic. He was given Titanus and medi.antibiotic medicine were given. I cannot say without referring to the bed head ticket who gave the stitches on the patient. This is the injury report written and signed by me marked Ext.B. There may be many reasons for referring the patient for better management to other hospital I reported the matter to the police. He was in our hospital for a few hours."
Examination-in-chief of DW3, the appellant's sister, is quoted below:-
"Prasun Dutta is my elder brother. I took him on 7.3.07 at about 9.30 PM to B.N.Bose hospital. He told me that he sustained injury being a stab injury inflicted by his father in law on his throat. In B.N.Bose hospita. he was given ½ stitkches on the injury. Me and my mother took Prasun to R.G.Kar hospital but he was not admitted there. He was discharged immediately after admission."
In her cross-examination DW3 said as follows:-
"I am residing at Barrackpore since my birth. I took my brother Prasun Dutta in an ambulance from my house. It took about ten minutes. There are many nursing homes (Panacia, KaD.Ghosh) and there are many doctors chambers between a close distance from our house. But I did not take my brother to any of these place for his treatment. From the R.G.Kar hospital no document was given to us. I did not mention about the incident to the medical officer at B.N.Bose hospital.."
Examination-in-chief of DW4, the appellant, is quoted below:-
"I am a resident of 15, Thakur Ramkrishna Road. Nona Chandanpukur. On 7.3.07 during evening at 7 PM I went to the house of Jatindra Mohan Sarkar, my father in law. to bring back my wife and son. When I knocked the door my fatherin law attended the door and opening the door he started c scrolling me in abusive language. He told me that no one is present at the house. I sat in a sofa inside the room and he asked me to go out. When I insisted that I will take back my wife and son suddenly he attacked me with a fruit cutting knife and he hit me on my throat. I sustained injury as a result. and it was bleeding profusedly from the injury. I tried to ake take the knife from my father in law and there was scuffle. My father in law sustained injury. Some how I could release myself fom h from him and I hurried for my home. I told my mother. My mother insisted to take me to BN Bose hospital where I was given stitch on the cut injuries. and I was advised to go to R.G.Kar hospital. At R.G.Kar hospital I was admitted and then I returned home. In the meantime my father in law expired and police arrested me and since then I am in custody. I told the medical officer at B.N. Bose Hospital how I sustained injuries."
In his cross-examination DW4 said as follows:-
"I did not go to the PS nor did I lodge any complaint in connection with cut injury I sustained. There are nursing homes namely K.D.Ghohs Nursing Home and Panacia nursing home adjoining our house. I narrated the history of assault to the medical officer who attended on me. The police collected medical document. I cannot say exactly the date of my arrest. This is my signature in the seizure list marked Ext.C. I was about for half an hour in the house of my father in law on that day. It takes 10 minutes from my house to B.N.Bose hospital. It takes almost equal time to reach nursing home from my residence."
The court below has said and held as follows. Details given by PW1 while deposing, though not mentioned in the information (Ex1), did not amount to an improvement of the prosecution case. Evidence of PWs 3 & 5 corroborates the evidence of PW1. Ex5 supports the evidence of PWs 1, 3 & 5. Evidence proved that the appellant caused the injuries to the victim with knife. The oral dying declaration was acceptable, especially when it came from several witnesses. The appellant entering the witness box and getting an opportunity to disclose the identity of his two companions, did not disclose their identity. The post-mortem report opinion was that the death was due to the effect of the injuries stated in the report proved by PW17. The appellant's disclosure statement was quite acceptable. No outsider had any access to the bush behind the appellant's house wherefrom the knife was recovered. Facts and circumstances revealed by the evidence clearly proved the prosecution case, partly admitted by the defence, that the appellant, in execution of a premeditated plan, inflicted the injuries that ultimately caused the victim's death. The appellant is, therefore, guilty of the offence under s.302 IPC.
Mr. Moitra appearing for the appellant has submitted as follows. The victim's daughter gave written information of the incident. Nothing about dying declaration was mentioned. Except dying declaration there is hardly any evidence. All said about oral dying declaration. PW11 said the assailants were unknown, as recorded by him. The dying declaration evidence is totally unbelievable. Witness to the seizure of the weapon of offence has not proved the seizure. If the seizure goes, then there is no weapon of offence. There is nothing in the report that the injuries were homicidal in nature. Death was caused by traumatic paraplegia. Evidence of PWs 15 & 16 belies the prosecution case. The evidence is irreconcilable. Relevant part of investigating officer's evidence is wholly inadmissible. Evidence of the appellant remained unshaken. The case is based on circumstantial evidence. The appellant's relationship with his father-in- law was not cordial. The victim died an unnatural death. His body bore marks of injuries. The evidence does not prove that the appellant caused the bodily injuries to the victim in order to kill him.
On FIR Mr Moitra has relied on the following decisions. Ram Kumar Pandey v. St. of M.P., 1975 SCC(Cri) 225 ( in judging the veracity of the prosecution case, omission of important facts in the FIR is relevant); Sujoy Sen v. St. of W.B., (2007) 2 CCrLR(SC) 669 ( an FIR is a very vital material, as it is the first information of the incident and has less chance of altering the version and improvement); St. of Maharashtra v. Ahmed Shaikh Babajan & Ors., 2009 (1) ECrN 637 (significant omission in FIR, in absence of explanation, may taint evidence of the de facto complainant with embellishments).
On dying declaration he has relied on the following decisions. Darshana Devi v. St. of Punjab, 1996 SCC(Cri) 38 (an oral dying declaration can form the basis of conviction, but it must be trustworthy and reproduction of the exact words is very important); Raja Ram v. St. of Rajasthan, (2005) 5 SCC 272 (on the facts of the case the dying declaration could not survive the scrutiny); Manjunath Chennabasapa Madath v. St. of Karnataka, 2007 CriLJ 2964 (SC) (it was found, on facts, there was no dying declaration); and Roop Ram & Anr. v. St. of M.P., (2011) 14 SCC 577 (on facts it was difficult to believe that the victim was in a condition to make his statement).
On recovery of the offence weapon he has cited the following decisions. Madhu v. St. of Kerala, (2012) 2 SCC 399 (if the statement does not result in discovery of some new fact, it is inadmissible); Govindaraju v. St. & Anr., (2012) 4 SCC 722 (recovery if not made in conformity with s.27, it casts doubt over the recovery).
On circumstantial evidence he has cited the following decisions. Sujoy Sen v. St. of W.B., (2007) 2 CCrLR(SC) 669 (in a case of circumstantial evidence the prosecution has to establish the chain of circumstances that inevitably connect the accused to the crime); Mustakeem v. St. of Rajasthan, (2011) 3 CCrLR(SC)1 (when case rests only on circumstantial evidence, the inference of guilt can be justified only if all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused); and Kulvinder Singh & Anr. v. St. of Haryana, (2011) 5 SCC 258 (the circumstances from which the conclusion of guilt is to be drawn should be fully established).
On defence case he has cited the following decisions. Tika & Ors. v. St. of U.P., 1974 SCC(Cri) 67 ( prosecution case has to be tested independently of the defence version; falsity of the defence will not help the prosecution to establish its own case); and Lakshmi Singh & Ors. v. St. of Bihar, 1976 SCC(Cri) 671 ( it is not necessary for the defence to prove its case with the same rigour as is needed for the prosecution to prove its case; it is sufficient if the defence succeeds in throwing a doubt).
On appreciation of evidence he has cited the following decisions. Kali Ram v. St. of H.P., 1973 SCC(Cri) 1048 ( if two views are possible on the evidence, the one favourable to the accused should be adopted); Bhagirath v. St. of M.P., 1975 SCC(Cri) 742 ( when the substratum of the eyewitness evidence is found false, the prosecution case should be thrown out); Bedam Singh v. St. of M.P., AIR 2004 SC 26 ( the mere fact that the eyewitnesses are consistent is not a sure guarantee of their truthfulness); and Sunil Kundu & Anr. v. St. of Jharkhand, (2013) 4 SCC 422 ( suspicion however strong, cannot take the place of proof).
Mr. Public Prosecutor has submitted as follows. There is no reason to disbelieve the evidence of the prosecution witnesses' consistent evidence of the victim's dying declarations that it is the appellant who caused him the injuries with a knife. Absence of the dying declaration fact in the information leading to FIR should not raise a doubt about the truthfulness of the witnesses, especially when the appellant was specifically named in the information as the attacker who caused the injuries to the victim. The seizure of the weapon of offence should not be doubted, because the appellant setting up a story of scuffle, but not explaining why he fled from the scene of the crime, however, admitted the use of a knife and the fact that the victim sustained the injuries through him.
Mr. Public Prosecutor has cited the following decisions. Om Prakash v. St. of Uttaranchal, 2003 SCC(Cri) 412 ( FIR is to contain only essential and relevant details, not that everything stated in court was to find place in it); Golakonda Venkateswarh Rao v. St. of A.P., 2003 SCC(Cri) 1904 ( facts that disclosure statement and recovery memo do not bear accused's signature, are no ground to think that the recovered thing had been planted to rope in the accused, when the recovery is from a place to which public had no access); and Amitsingh Bhikamsingh Thakur v. St. of Maharashtra, (2007)1 SCC(Cri) 5829 (fact discovered includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this).
The conviction is under s.302 IPC. The prosecution case is that the appellant murdered his father-in-law. Evidence of PWs 1, 3, 4-8 ( Sarmila, the victim's daughter; Jaydip, the victim's nephew; Renu, the victim's wife; Suchitra, the victim's sister-in-law; Samarendra, a relation of the victim by marriage; Suhrid, the victim's another nephew; and Sujit, the victim's yet another nephew respictively) and DWs 3 & 4 ( the appellant's younger sister and the appellant) clearly proves that the victim was PW1 Sarmila's father and the appellant's father-in-law.
Evidence of PWs 4, 5 & 6 and the death certificate (Ex11) prove that the victim died on March 10, 2007 at 11.45 a.m. at SSKM Hospital. The hospital bed head ticket (Ex10) and evidence of PWs 15 & 16 ( the two hospital doctors) prove that traumatic paraplegia caused the victim's death. Evidence of PW15 proves that the victim was suffering from traumatic paraplegia due to the effects of the bodily injuries caused to him. Evidence of PW17 ( the doctor doing the post- mortem on the victim) and his post-mortem report (Ex12) prove that the injuries caused to the victim were homicidal in nature.
According to the prosecution, it is the appellant who caused the injuries to the victim with the intention to kill the victim. Therefore, what is to be examined is whether the evidence proves that the appellant caused the bodily injuries to the victim; and if so, whether he caused them with the intention to kill the victim or with the knowledge that they were sufficient to cause the victim's death.
The prosecution case is that the scene of the crime was the victim's first floor room of his own house. Evidence of PWs 1, 3, 4, 5, 8, 18(Sarmila, the victim's daughter; Jaydip, the victim's nephew; Renu, the victim's wife; Suchitra, the victim's sister-in-law; Sujit, the victim's another nephew; and the investigating officer respectively) and DW4 (the appellant) and Ex13 (the rough sketch map of the scene) clearly prove that the scene of the crime is what the prosecution says.
There is no witness who saw the appellant causing the bodily injuries to the victim. The appellant, however, in his s.313 examination and as DW4 admitted the following facts:-(i) he was at the scene of the crime on March 7, 2007 after 7 p.m.; (ii) he met the appellant in the absence of the other inmates of the house; (iii) some bodily injuries were caused to the victim through him in the absence of the other inmates of the house; (iv) a knife was in use.
The appellant's uncorroborated evidence is that the victim told him that no one was at home and his claim is that his wife Sarmila (PW1) was not at home.
Sharmila's evidence is that she and her mother (PW4) were cooking meal in the kitchen; that hearing a groan from her father's (the victim's) adjoining room, she and her mother came to the victim's room; and that hearing her shouts Jaydip (PW3) and Suchitra (PW5) came running. Evidence of PW4 substantially corroborates Sarmila's this evidence. Evidence of PWs 3 & 5 is that hearing Sarmila's shouts they came to the victim's room and found Sarmila and her mother there.
Hence it has been proved that at the time of the incident Sarmila (PW1), her mother (PW4), Jaydip (PW3) and Suchitra (PW5), all inmates of the house, were at home.
Again the appellant's uncorroborated evidence is that when the victim slashed at his throat with a knife, with the profusely bleeding stab injury on his throat he tried to take the knife from the victim; that his effort led to a scuffle in which the victim sustained injury; and that after somehow releasing himself from the victim, he hurried for his home.
Evidence of PW17, the doctor doing the post- mortem on the victim, is that the victim could not sustain the injuries in a scuffle with the appellant; and that the injuries were ante mortem and homicidal in nature.
Now, Sarmila (PW1) and her mother (PW4) both said that when they entered the victim's room they found the appellant standing with a blood stained knife in his hand near the injured victim who was lying on the floor; and that seeing them first the two unknown persons standing at the door of the room fled taking the stairs, and then the appellant fled. Jaydip (PW3) and Suchitra (PW5) said that when hearing Sarmila's shouts they reached the victim's room, they found Sarmila and her mother in the victim's room.
The rough sketch map of the scene of the crime (EX13) and evidence of Sarmila (PW1) and her mother (PW4) show that the kitchen adjoined the victim's first floor room. Ex13 shows that the victim's room had three doors: one to a small corridor whose one end led to the stairs; another to a balcony and another to the kitchen. In cross-examination Suchitra (PW5) said, "There is an entrance gate of the house. It is never closed. Anybody can get into our house any time. Any person can have access to the ground floor and first floor of our house."
Hence the locational features of the scene of the crime revealed by the evidence lead to the conclusion that it was possible for the appellant and his two companions, assuming they were there, to reach the victim's first floor room unnoticed by any inmate of the house. The appellant's own evidence is that the victim opened the door for him.
Evidence of Sarmila (PW1) and her mother (PW4) is that they were cooking meal in the kitchen adjoining the victim's room; that hearing a groan from the victim's room they opened the kitchen door and came to the victim's room; that they saw two unknown persons standing at the corridor leading door of the victim's room, the appellant standing inside on the floor of the room with a blood stained knife in his hand, and the injured victim lying on the floor; that seeing them the two unknown persons fled taking the stairs and the appellant also fled; and that they started shouting.
It has been argued that since existence of the two unknown persons has not been proved, evidence of PWs 1 & 4 asserting the fact, that they saw the appellant in the victim's room should not be believed. This is no reason to disbelieve the above-noted evidence of PWs 1 & 4; nor is there any other reason to disbelieve the evidence. In her written information (Ex1) Sarmila (PW1) mentioned that there were two unknown persons with the appellant. The investigating officer's failure to achieve a break-through cannot make the direct evidence of PWs 1 & 4 unbelievable.
The big question is whether evidence proves that the appellant caused the injuries effects whereof caused the victim's death.
It is the appellant's own evidence as DW4 that the victim sustained injuries in a scuffle with him. Evidence of PW17 and Ex12 reveal that the victim was 74 and the evidence of DW2 and Exs A & B reveal that the appellant was 39. Evidence of PW17 ( the doctor doing the post-mortem on the victim) is that the victim could not sustain the injuries in a scuffle between the appellant and the victim. The uncorroborated scuffle story introduced by the appellant is simply not believable.
According to the appellant, the scuffle started when, while profusely bleeding, he tried to take from the victim a knife with which the suddenly heated victim slashed at his throat. His evidence that he was profusely bleeding is not only uncorroborated, but also totally unbelievable in view of his evidence that from the scene of the crime he went home, not to doctor.
It is not the evidence of DW3 (his sister) that she saw the injury and the profuse bleeding. DW1 ( the BNBose medical officer) did not mention any such feature of the injury in her report (ExA). DW2 (the BNBose surgeon) who found the appellant smelling alcohol did not see any feature of the injury already stitched by someone and Ex14 (the appellant's RGKar outdoor patients' ticket) proved that he was turned out of the hospital outdoor itself. The injury on his throat could not be and was not caused by the victim.
It has been argued that the evidence of PWs 1, 3 & 4 ( Sarmila, Jaydip & Renu, the victim's daughter, nephew and wife respectively) that some cloth like thing was in the victim's mouth should not be believed, because no cloth like thing was found by the investigating officer at the scene of the crime when he visited it and prepared the seizure list dated March 7, 2007 (Ex3).
Evidence of PWs 1 & 4 ( Sarmila and her mother) is that they both came from the adjoining kitchen to the victim's room, and that PW3 (Jaydip) who came running hearing their shouts took out clothes from the victim's mouth. Jaydip in his evidence said that he removed cloth from the victim's mouth and in cross- examination he said, "I took out the cloth from the mouth of my kaka but I cannot say where I threw the cloth inside the house." In her written information (Ex1) Sarmila specifically mentioned that some cloth like thing was in the victim's mouth.
Simply because the investigating officer did not take steps to collect the cloth, it cannot be said that the otherwise unshaken well corroborated evidence of PWs 1, 3 & 4 should not be believed. The evidence rather explains why the victim could not cry for help and was groaning. The mysterious Feviquick tube (an instant adhesive) seized from the victim's blood on the floor of the room, as stated by PW1 and will appear from Ex3, has also remained an unexplained object at an unusual place. The investigating officer did not say that he searched for the cloth, but did not find it.
There is, therefore, no reason to disbelieve the evidence of PWs 1, 3 & 4 that some cloth was taken out from the victim's mouth.
It has been forcefully argued that evidence of PWs 1, 3-8, 10, 11 & 18 that the victim told them that the appellant caused the injuries to him is a clear afterthought; for PW1 Sarmila's written information (Ex1), the nursing home papers (Exs 4, 5 & 7) and evidence of PW4 ( Sarmila's mother and the victim's wife) clearly demolish the several different oral dying declarations story.
Evidence of PWs 1, 3, 4 & 5 ( Sarmila, Jaydip, Renu & Suchitra), all inmates of the house and who all reached the injured victim first and almost at once, is that the victim was in a position to talk; and that he told them that the appellant had caused him the injuries. The argument is that absence of the dying declaration fact in the written information (Ex1) casts a serious doubt about the dying declaration stated by PWs 1, 3, 4 & 5; and that in cross- examination PW4 clearly admitted that the victim was not able to talk.
The relevant part of the cross-examination of PW4 is quoted below:-
"Not fact on 7.3.07 at about 7 PM Prasun came our house to take his wife and son. Not a fact my husband asked Prasun to get out of the house. Not a fact as Prasun did not go out my husband pulled out a kitchen knife and inflicted cut injury on the neck of Prasun. Not a fact Prasun wanted to snatch the knife and my husband sustained cut injury as a result of such assault. Not a fact my husband did not tell me that Prasun stabbed him when the cloth was removed from his mouth. My husband had no capacity to talk. Not a fact I deposing falsely suppressing truth. My husband's hands were not tied."
It has been argued that the court cannot read the sentence "My husband had no capacity to talk," as "Not a fact that my husband had no capacity to talk;"
for evidence has to be read as it is and the view that favours the appellant should be adopted.
There can be no dispute over the proposition. But what will be the effect of an as-it-is-reading of the evidence taken down by the court below will be evident from the reading and making an attempt to make sense of the important parts and the words and phrases of the evidence of the witnesses quoted hereinbefore ( as they are, and with the mistakes, if there are any). The principle should be:-
what is to be read and appreciated is the whole of the evidence of a witness, not a sentence thereof in isolation.
The sentence heavily relied on by the appellant does not fit in with the context in which it exists. It rather does not fit in with the entire evidence given by PW4, the victim's 65-year old wife. Hence it will not be right to reject her direct evidence regarding dying declaration of the victim, fully corroborated by the evidence of PWs 1, 3 & 5. On the facts, it cannot be said that omission to mention about the dying declaration in Ex1 ( the information leading to FIR) casts a serious doubt about its existence before the FIR. In Ex1 containing essential details of the offences the appellant was named as the attacker.
But Exs 4 & 7 ( the nursing home case history form and treatment sheet respectively), however, prove that the victim, while in the nursing home, was conscious, but disoriented. Hence it is doubtful whether the victim, while in the nursing home, was in a position to talk. This doubt is strengthened further by the fact that in Ex7, PW11 ( the doctor attending the victim on emergency call) wrote "History is inconclusive - probably was assaulted by some unknown person - as told." But he did not record who told.
It is, therefore, not safe to rely on the evidence of PWs 6-8, 10, 11 & 18 as to the dying declarations of the victim. But this is no ground to disbelieve the evidence of PWs 1, 3, 4 & 5 as to the dying declaration of the victim, if their evidence otherwise inspires confidence; and their evidence does it.
It is, therefore, appropriate to conclude that the victim told PWs 1, 3, 4 & 5 that the appellant had caused him the injuries. Besides, there is no reason to think that the injuries might have been caused by some other person or persons. It is the appellant's own evidence that the victim sustained the injuries through him. The facts and circumstances proved by the evidence, read and appreciated as a whole, lead to only one conclusion that it is the appellant who caused all the injuries to the victim.
The evidence of PW18 ( the investigating officer) on the recovery of the knife (MatExI), the weapon of offence, does not, however, get a corroboration from the evidence of PW14, the sole witness to the seizure list (Ex8) examined by the prosecution; and the FSL report (Ex18) does not link the knife to the offence. In cross-examination PW14 said, "The accd. brought of the night from a bush but I have not seen the bush. I was not present while he was brought out."
If read as it is, then what PW14 is stated to have said hardly makes any sense. But the sense that it really makes, if given, then it leads to the conclusion that the witness did not see the actual recovery of MatExI. PW1 wrongly saying that the knife used by the appellant was seized on March 7, 2007 from the scene of the crime ( Ex3, the seizure list prepared at the scene of the crime and signed by her, does not show seizure of any knife) also said that MatExI was not the weapon of offence.
Therefore, the recovery of the weapon of offence has not been proved beyond reasonable doubt. But there is no doubt that the weapon of offence was a knife; for the appellant himself gave evidence of a knife in use and PW17 ( the doctor doing the post-mortem on the victim) said that the injuries could be caused by a knife.
The foregoing discussion leads to the only conclusions that on March 7, 2007 between 7 p.m. and 8 p.m. the appellant caused the victim the bodily injuries whose effects caused the victim's death on March 10, 2007 at 11.45 a.m. In Ex7 ( the nursing home treatment sheet) PW11 attending the victim on emergency call on March 7, 2007 at 8.45 p.m. recorded, inter alia, "Streaks of blow every where ( on scalp, trunk & extremities)." The injuries mentioned in the post-mortem report (Ex12) have been quoted hereinbefore and PW17 ( the doctor doing the post-mortem on the victim) deposed that the injuries were ante mortem and homicidal in nature, and that their effects caused the victim's death.
Evidence of PW1 is that she was staying with her son at her parental home for past four years, and that her father did not give consent to her going to her matrimonial home. Evidence of PW4 is that the appellant was not liked by his in laws, that he was unemployed, and that his wife was well employed. The appellant's uncorroborated evidence that his wife was staying with his son at her parental home about a week March 7, 2007 does not pass the primary scrutiny.
The 39-year old appellant reached the 74-year old victim stealthily, and inflicted the injuries on the victim with a knife. It is evident that he did everything with a premeditation and caused the bodily injuries with full knowledge that they were likely to cause the victim's death. His story of a scuffle is a false story. The case does not come under any Exception to s.300 IPC. It is a clear case of murder. The court below rightly convicted the appellant of an offence under s.302 IPC.
For these reasons, the appeal fails and accordingly it is dismissed. The conviction and sentence of the court below both are affirmed. The department concerned is directed to send a cost free certified xerox of this judgement to the appellant and the lower court records to the court below, both at once.
(Jayanta Kumar Biswas, J) Subal Baidya, J:- I agree.
(Subal Baidya, J) ab