Calcutta High Court (Appellete Side)
Ujjal Mondal vs The State Of West Bengal on 23 April, 2013
Author: Patherya
Bench: Asim Kumar Ray, Patherya
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present: The Hon'ble Justice Nadira Patherya
And
The Hon'ble Justice Asim Kumar Ray
C.R.A. No. 238 of 2007
Ujjal Mondal ... Appellant (In Jail)
-Vs-
The State of West Bengal
For the Appellant : Mr. Partha Sarathi Bhattacharya
For the State : Mr. Manjit Singh, P.P.
Mr. Soumik Ganguly
Heard on : 19.03.2013, 25.03.2013, 19.04.2013 &
23.4.2013
Judgment on : 23.04.2013
Patherya, J.:
This Appeal is directed against the Judgment and order of conviction dated 15th March 2007 and sentence dated 17th March 2007 passed by the Additional Sessions Judge, 1st Court, Malda in Sessions Trial 2 No. 44 of 2002 arising out of Sessions Case No.2 of 2002. By the said judgment and order the appellant was convicted under Section 302 I.P.C. and sentenced to suffer imprisonment for life with fine of Rs.1,000/-in default to suffer rigorous imprisonment for two months.
The case of the Prosecution is that on 9.10.2001 Maya Majumder, the mother of the de facto complainant was found lying dead on her cot by P.W.1 and on receiving a phone call PW.2, the de facto complainant, reached his mother's house. An F.I.R. was lodged on 9.10.2001 being the date of incident at 5.30 p.m. On receipt of the complaint English Bazar P.S. Case No.339/01 dated 9.10.2001 under Section 302 I.P.C. was initiated and investigation undertaken. During investigation the appellant was arrested and on completion of investigation a Chargesheet under Section 302 I.P.C. was submitted. The S.D.J.M., Malda took cognizance of the case and committed the case to the Court of Sessions Judge, Malda who transferred the case for disposal to the Court of Additional Sessions Judge, 1st Court, Malda. Charge under Section 302 I.P.C. was framed against the appellant and on pleading not guilty and claiming to be tried the said case was undertaken for adjudication.
14 (fourteen) witnesses were examined by the prosecution. The statement under Section 313 Cr.P.C. of the appellant was also recorded.
On appreciation of the evidence the Additional Sessions Judge, 1st Court, Malda passed the impugned judgment, order of conviction and sentence.
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Being aggrieved by the said judgment and order of conviction and sentence dated 15th March 2007 and 17th March, 2007 respectively this appeal has been filed.
Counsel for the appellant has contended that while the de- facto complainant in his F.I.R. has stated that he was informed by one Sujit Kumar Goswami that his mother was ill and was asked to go home quickly, the said Sujit Kumar Goswami has not been examined.
P.W.1, cook of the victim has stated that the appellant was engaged as a mason in the house of the victim. After finishing her cooking at 11 A.M. on 9.10.2001 she went to collect 'gandha pata'. The time when P.W.1 went to collect 'gandha pata' does not find mention in the 164 Cr.P.C. statement made by her before the Judicial Magistrate. She has also stated that it took her half an hour to one hour to reach the residence of the victim from her house and according to her on the date of the incident she had returned to her home at 1 P.M. It is unbelievable, therefore, that from the time she left the house of the victim to collect 'gandha pata' and returned to the victim's residence and thereafter reached her house it would have taken her only two hours. Within these two hours, the appellant also searched the keys with her. P.W.1's evidence with regard to time is full of contradictions and to that extent the evidence of P.W.1 cannot be relied on.
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P.W.1 has in her evidence stated that the appellant confessed to her that he had murdered the victim and caught her leg and prayed for mercy. This is unbelievable.
P.W.1 has stated in her evidence that she disclosed the entire incident to her daughter-in-law P.W.13 at 1 P.M. But she has also stated that she was very frightened and almost became senseless, and it was only on seeing the police she regained her capability to speak. Police visited her residence in the evening. Therefore, prior thereto she was incapable of making any speech and could not have narrated the incident to P.W. 13. She has also specifically stated that she did not regain her normal sense before the arrival of the police. Therefore the evidence of PW1 cannot be relied upon.
P.W.1 found the body of the victim wrapped in a bed cover. But this will not appear from the Inquest Report.
The chaku which P.W.1 found in the hand of the appellant was not seized.
The screw driver though seized was not in the presence of the Seizure List witnesses as will appear from his evidence. In fact the screw driver was not produced before P.W.1 for identification. As the chaku was not recovered, the statement with regard to confession made is of no consequence and must go as it is unbelievable. Therefore the credibility of P.W.1's evidence is in doubt.
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P.W.2, the de facto complainant found the victim throttled to death and although the screw driver was recovered by the accused no step was taken by the de facto complainant to refute the newspaper reporting about Pranab Kr. Mazumder being arrested in connection with the murder of the victim.
P.W.3 is a post-occurrence witness and it is he who accompanied the police not only to the house of the appellant but was with the police party at the time of arrest of the appellant. It is in his company that the police reached the residence of P.W.1. Therefore the active role of P.W.3 in the arrest of the appellant and identifying the house of P.W.1 raises a doubt as regards his involvement in the offence.
P.W.4 is the Head Mistry under whom the appellant worked and he guided the Investigating Officer to the house of the appellant.
P.W.5 and P.W. 10 are seizure list witnesses but recovery was not made in their presence and therefore the factum of recovery cannot be explained by the said witnesses. The evidence of the said two witnesses namely, P.W.5 and P.W. 10 has not been of any assistance to the prosecution's case.
P.W.6 is the Head Constable and he is a formal witness. P.W.7 has stated in her evidence that it was at 11 A.M. that P.W.1 came to her house to collect 'gandha pata'. Therefore, this is in contradiction to what has been stated by P.W.1 who has in her evidence 6 stated that she left the house of the victim at 11 A.M. to collect 'gandha pata'.
P.W. 8 is a formal witness.
P.W.11 is the Autopsy Surgeon who has opined that the death was by strangulation and homicidal but has not specified in the Post Mortem Report the article used for strangulation.
P.W.12 is the doctor who treated the appellant for his injury and the time mentioned in the case history of when he sustained the injury is 10 A.M. on 9th October 2001. The said time is incorrect as it was only at 11 A.M. that P.W.1 left the residence of the victim. Therefore his evidence cannot be relied on.
P.W.13 is the daughter-in-law of P.W.1 and though she has stated that she informed the news of murder of the victim to Ratnadi and Sikhadi, the said persons have not been examined. Her evidence is nothing but hearsay as it is from P.W.1 that she heard of the incident.
P.W.14 is the I.O. who seized a torn shirt.
What emerges, therefore, from the said evidence of the prosecution witness is that P.W.3 whose name appeared in the newspaper could be involved in the murder of the victim. P.W.2 had read the said news item but took no step to refute it. P.W.2 and P.W.3 have taken shield behind the appellant for the offence committed by them.
There has been no investigation with regard to the chaku, seen in the hand of the appellant by P.W.1 and the screw driver which was used to 7 open the left side of the almirah. Such screw driver has also not been seized in the presence of the seizure list witnesses.
Although the seized articles were given to P.W.2, these articles were not produced for identification before P.W.2.
There is no evidence of any masonry work undertaken by the appellant. No document has also been produced by the prosecution.
The evidence of P.W.1 is nothing but an embellishment with regard to time as there is no mention of time in the 164 Cr.P.C. statement. Therefore it cannot be relied upon.
The screw driver which was seized has no bearing with the case and except for the extra-judicial confession by the appellant before P.W.1 there is no other evidence to link the appellant with the crime.
In view of the contradictions in the evidence of P.W.1 the evidence of P.W.1 cannot be relied upon.
As held in 2011(1) Cal. CRLR (SC) 54 = 2010 (6) SCC 736 (Baijnath Sah -Vs- State of Bihar) the statement under Section 164 Cr.P.C. is only be used for corroboration purposes or for contradiction and for no other purpose.
2004 SCC (Cri) (Supp)70 (Ramesh Singh @ Photti-Vs- State of Andhra Pradesh) = 2004 (11) SCC 305 has been relied on for the proposition that the evidence of witnesses whose statement is recorded under Section 164 Cr.P.C. must be assessed with caution. 8
Reliance has also been placed on 2007 (1) All India Criminal Law Reporter (Calcutta) p.672 (Banchit Guli Majhi -Vs- State of West Bengal) for the proposition that a statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of facts but may be used for contradiction or corroboration of the evidence of a witness. 164 Cr.P.C. statement can also not be the basis of foundation of conviction in the event such statement is not read over or confronted to the witness when she is examined in Court.
2003 (12) SCC 377 has been relied on for the proposition that when the seizure list witnesses have not seen recovery of the seized articles, their evidence will be of no value.
As in this case the seizure list witnesses were not present at the time of recovery or seizure, their evidence cannot be relied upon. Therefore, in view of the aforesaid, the order of conviction and sentence be set aside.
In opposing the said Appeal, counsel for the State submits that the entire case revolves around the evidence of P.W.1 and it is her evidence, which is of great importance.
P.W.13 has corroborated the evidence of P.W.1. While P.W.1 has stated in her evidence that she disclosed the entire incident to her daughter-in-law (P.W.13). P.W.13 has also stated in her evidence that her mother-in-law (P.W.1) stated to her that the mason of the house had murdered the landlady of that house where she worked. 9
While P.W.1 has stated that she reached her home at 1 P.M., P.W.13 has also corroborated that the said was reported to her at 1 P.M. The presence of the accused at the place of occurrence is revealed from the evidence of P.W.1. That the accused was injured himself while trying to open the almirah will not only appear from the evidence of P.W.1 but also from the evidence of P.W.12, the doctor who treated him and P.W.14, the I.O.
The appellant worked in the house of the victim as a mason will appear from the evidence of P.W.1 and is corroborated by the evidence of P.W.3.
P.W.1 has stated in her evidence about the extra-judicial confession made by the appellant to her and this has not been shaken in cross- examination. The suggestion put to P.W.1 by the lawyer of the appellant has also been denied.
That P.W.1 went to collect 'gandha pata' has been corroborated by P.W.7.
P.W.11, the Autopsy Surgeon has in the P.M. Report stated that the death was homicidal due to strangulation.
P.W.s 1, 2 and 3 have in their respective evidence stated that the end of the sari was tied around the neck of the victim.
The P.M. Report (Exhibit-8) has also mentioned the cause of demise being strangulation. The defence has not proved otherwise. 10
A faint ligature mark was also found around neck and mentioned in the P.M. Report .
Chaku and screw driver are not the offending weapon. P.W.1 in her evidence has stated that in one hour's time she returned to the victim's house after collecting 'gandha pata' and the distance between her house and the victim's house would take about half- an-hour. Therefore there is no contradiction in time.
Reliance is placed on 2008 (1) CAL. Cr.LR 95 for the proposition that minor contradictions is not material and ought not to be relied on.
In 2010 Cr.L.J. 3880 the credibility of a witness has been discussed and as P.W.1 is a trustworthy, reliable and believable witness, there is no reason to doubt her credibility.
Accordingly, this Appeal be dismissed and the order of conviction and sentence be upheld.
In reply, counsel for the appellant submits that P.W.1 did not disclose to P.W.13 of the extra-judicial confession as the same is not borne out from the evidence of P.W.13 and it is near to impossible for the appellant to reach her home by 1 P.M. Having considered the submissions of the parties, the Autopsy Surgeon who is P.W.11 has specifically stated in his report being Exhibit-8 that the cause of death of the victim is by strangulation and homicidal in nature. Therefore, the victim must have been strangulated and the question that arises is by whom.
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To ascertain the presence of the person who strangulated the victim we have no eye witness and the only time that a person was identified is when P.W.1 returned to the house of the victim after collecting 'gandha pata'. It is at this time that she found the appellant coming out of the room on the right side of the courtyard. He had a chaku in his hand according to P.W.1. On seeing P.W.1 he not only caught hold of her hand but confessed that he had murdered. Who had been murdered came to the knowledge of P.W.1 as will appear from her evidence after she entered the room of the victim and found her lying dead on the cot. This piece of evidence of P.W.1 has not been shaken in cross-examination and even when a suggestion was put to her that she had not seen the accused person in the house of the victim at the time of incident she has denied the same. Even with regard to non-disclosure by the appellant the said suggestion has been denied by P.W.1. Therefore as regards the confession made by the appellant, the evidence remains intact and the prosecution's case proved.
Counsel for the appellant has tried to make much out of the time that may have been taken by P.W.1 to leave the victim's house to collect 'gandha pata' and return but in cross-examination P.W.1 has categorically stated that it took her one hour to return to the house of the victim after collecting 'gandha pata' since departure from the victim's house. She has also stated in cross-examination that it took half an hour to one hour to reach the victim's house from her residence.
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Therefore, on a proper assessment of the time, the reading of the same in conjunction with the evidence of P.W.1 there is no reason to disbelieve the evidence of P.W.1 as regards time and reaching her house at 1 P.M. which has also been corroborated by P.W.13 who has specifically stated that P.W. 1 reported to her of the incident at 1 P.M. P.W.7 corroborated the evidence of P.W.1 as regards collection of the 'gandha pata' and although she said that P.W.1 reached at 11 A.M. to collect 'gandha pata', to that extent the evidence of P.W.7 need not be relied on.
P.W.2 found his mother, the victim, throttled to death by the end of a sari tied around her neck. He is the de facto complainant but definitely not an eye witness to the incident. He has stated about the recovery of the screw driver but P.W.5 has categorically stated in his evidence that the recovery of the screw driver was not in his presence. Therefore the recovery made is meaningless.
P.W.3, another son of the deceased accompanied the I.O. to the residence of P.W.1 and also was present at the time of arrest of the appellant. He did not tell the I.O. that the appellant worked till Friday as a mason in their house. Therefore to that extent his evidence cannot be relied on.
That the appellant was a mason is borne out from the evidence of P.W.4 who himself is a mason and the appellant worked under him. 13
P.W.1 stated in her evidence that the appellant worked as a mason and 4/5 days prior to the date of incident the masonry work had ended. This has also been corroborated by P.W.2, the de facto complainant who has also stated that the appellant worked upto the Friday last from the date of incident.
This piece of evidence has not been shaken by the defence counsel in cross-examination and therefore remains intact.
That the accused was injured is also evident from the evidence of P.W.1, P.W.12 and P.W.14.
From Exhibit-9 it also appears that the right middle finger of the appellant suffered a small cut and he was given first aid by P.W.12. Therefore, the evidence of P.W.1 with regard to injury suffered by the appellant is corroborated by P.W.12 and P.W.14, the I.O.
As per P.M. Report being Exhibit-8 the cause of death is strangulation. In column-4 of the first part namely external appearance it has been specifically stated by the Autopsy Surgeon that a faint ligature mark around the neck below thyroid cartilage was found and areas of multiple haemorrhage was also seen. This is corroborated by the evidence of P.W.s 1, 2 and 3 who found the end of a sari tied around the neck of the victim.
That the appellant worked till Friday is borne out from the evidence of witnesses mentioned above and the extra-judicial confession made 14 independent of any Judicial Officer or Police, not shaken in cross- examination only goes to substantiate the case of the prosecution.
Although it was submitted that P.W.1 did not disclose the extra- judicial confession to P.W.13, P.W.13 in her evidence has specifically stated that her mother-in-law being P.W.1 stated to her that the mason of the house had murdered the landlady of that house where she worked. If this is not a reproduction of the extra-judicial confession, then what will it be.
That the disclosure was made of the entire incident by P.W.1 to her daughter-in-law has been corroborated by the evidence of P.W.13, the daughter-in-law.
Counsel for the appellant has tried to highlight contradictions in the evidence of P.W.1 to question the credibility of the evidence of P.W.1. The said contradictions are minor and will not wash away the evidence of P.W.1. One of such contradictions pointed out relates to P.W.1 being so frightened that she could not express anything as she regained her capability to speak only on seeking the police.
P.W.1 in her cross-examination stated that on reaching home she waited for 10 minutes and then narrated the incident to P.W.13 by which time she had also regained her normal sense. These contradictions are so minor that when the rest of the evidence is taken into consideration is hardly of any consequence especially in the light of the extra-judicial confession made by the appellant. This extra-judicial confession was 15 independent and without any undue pressure or coercion so also the factum of the appellant working as a mason till Friday before the incident not being dislodged and injury suffered by the appellant and treated, the order of conviction dated 15th March 2007 and sentence dated 17th March 2007 calls for no interference and accordingly the appeal fails and is dismissed.
It is true that the only evidence which is of importance is that of P.W.1 and should be read with great caution and care and that is what has been exactly done in the instant case.
Urgent certified photocopy of this judgment, if applied for, be given to the parties upon compliance with all requisite formalities.
(Asim Kumar Ray, J.) (Patherya, J.)
I agree.
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