Calcutta High Court (Appellete Side)
Dhiren Chandra Barik (In Jail) vs The State on 20 August, 2010
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Appellate / Revisional /Criminal Jurisdiction
Present :
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
CRA NO. 399 OF 2003
Dhiren Chandra Barik (In Jail) ...... Appellant
Vs
The State ....Respondent
For the Appellant/ : Mr. R. B. Mahato
Petitioner Mr. Kalyan Moitra
For the Respondent : Mr. A. Goswami, Ld. P.P.
Mr. Subir Ganguly
Judgment on : 20.08.2010
RAGHUNATH RAY, J. :
This Jail Appeal is directed against the judgement and order of conviction passed by the learned Additional Sessions Judge, 3rd Court Midnapur on 07.08.03 in Sessions Trial No. XLIV/Oct' 2001 arising out of G.R. Case No. 1085/2000. By the aforementioned impugned judgement, the appellant Dhiren Barik was found guilty of the charge under section 302 IPC for causing the murder of Bhupati since deceased and also of further charge under section 325 IPC for causing voluntarily grievous hurt to the deceased's minor son Santanu. He was convicted thereunder accordingly. The convict was sentenced to suffer life imprisonment 2 and to pay a fine of Rs. 1000/- in default whereof to suffer one month S.I. for the first count of charge and was also sentenced to undergo four years R. I. for the second count of charge vide order dated 08.08.03. Both the sentences were ordered to run concurrently.
2. Factual matrix of the prosecution case leading to filing of the present appeal may be summarized as under :-
i) On the auspicious day of car festival i.e on 18th day of Ashar 1407 BS corresponding to 03.07.2000 at about 10-45 PM one Bhupati Barik of Talda village within PS Datan was stabbed to death by the present appellant Dhiren Barik and his dead body was found lying by the side of moram road of Krishnanagar mouza within PS Belda. Both the assailant and deceased used to sell channa at Sayrapara Bazar for last 15-16 years. In the evening hours of the fateful day both of them were seen talking over the money matter in the chariot festival fair at Sayrapara Bazar by co-villagers. At the material point of time the deceased was returning from Sayrapara Bazar along with his minor son Santanu (PW5) on his bicycle being followed by the appellant and some of the co-villagers.
Some people of Bablapur village also saw the deceased to argue with the assailant on the paving by the side of the road at about 10.30 PM at that fateful night.
ii) Immediately, after the incident of stabbing the appellant made good his escape from the P.O. and on his way to Sayrapara Bazar Fair he dashed one of the co-villagers namely Aswini Das (PW2) causing fall of both of them on the ground from their respective bicycle. Bidyut Barik focussed torch on the person 3 and the assailant was recognised by PW1 and other co-villagers. Bidyut Barik, PWI and other co-villagers, proceeded a short distance and found the deceased lying in a pool of blood by the side of the road and his minor son Santanu was found weeping. It was reported by Santanu (PW5) to the FIR maker and other co- villagers that the appellant had an altercation with the deceased and he slashed the neck of Bhupati with a knife. When the son raised a hue and cry, he was also assaulted on his left hand and arm pit with the same knife. The injured son of the deceased was shifted to Nekursini Christian Hospital for medical treatment.
iii) An FIR unfolding narration of events as above was lodged by Bidyut Barik, the nephew of the deceased on the following day giving rise to Belda PS Case No. 89/2000 dt. 04.07.2000 under sub-sections 302/324/307 IPC. Prior to its initiation one U/D case No. 25/2000 dt. 04.07.2000 was also started and the same was tagged with the said Belda PS Case which was endorsed to S.I. Amiya Kumar Kar for investigation.
iv) In course of investigation the I.O. prepared the Inquest Report (Exhibit 2/3) of Bhupati Barik aged 35 years in the presence of four witnesses and also a Seizure List (Exhibit 6/I) in respect of blood stained wearing apparels of the appellant and the old bicycle used by the appellant at the relevant point of time. He also collected PM Examination Report of the deceased (Exhibit 5). A rough sketch map of the P.O together with its index (Exhibit 8) was prepared by him. The Injury Report of Santanu Barik ('X' for identification) was also collected by the I.O. from Nekursini Christian Hospital. He also examined all available witnesses during investigation. On completion of investigation he submitted the 4 charge-sheet under sections 302/307/34 IPC in G.R. Case No. 1085/2000 against the appellant.
v) The case, being sessions triable one, was committed to the court of sessions in accordance with the provision of section 209 Cr. P.C. by the ld. SDJM Midnapur vide order dt. 19.09.2001. The appellant was asked on 18.05.2002 to answer the following charge:-
"That you, on or about the 3rd day of July, 2000, corresponding to the 18th day of Ashar, 1407 B.S. at Krishna Nagar P.S. Belda, Dist. Midnapore, committed murder by intentionally or knowingly causing the death of Bhupati Barik, and thereby committed an offence punishable under section 302 of the Indian Penal Code, and within the cognizance of this court.
Secondly, That you, on or about the same day, and at the same place, did not act, to wit, caused hurt to Shantanu Barik, with such intention or knowledge, and under such circumstances that, if by that act, you had caused his death, you would have been guilty of murder, and that you caused hurt to the said Shantanu Barik by the said act, and thereby committed an offence punishable under section 307 of the Indian Penal Code, and within cognizance of this court.
Thirdly, That you, on or about the same day and at the same place, voluntarily caused grievous hurt to Shantanu Barik by means of knife, which is an instrument of cutting, and thereby committed an offence punishable under section 326 of the Indian Penal Code, and within the cognizance of this Court."
The appellant, however, pleaded not guilty to the afore-quoted charge and claimed to be tried. Accordingly he was put to trial.
5
vi) On consideration of the entire evidence on record adduced during trial, the learned Trial Court convicted the appellants under sections 302/325 IPC and also passed necessary sentence as already indicated earlier.
3. Feeling aggrieved, the appellant preferred the instant Jail Appeal through the Superintendent, Midnapur Central Correctional Home on 16.08.2003 on the ground that the order of conviction and sentence impugned is manifestly unjust, incorrect and illegal inasmuch as it is against the weight of evidence on record and further that the charge of murder against the appellant is biased and motivated and the learned Court failed to unearth the truth. It was further contended therein that the prosecution witnesses is highly interested and partisaned in nature and character. This court engaged Sri Rashbihari Mahato, ld. Advocate of senior panel with a junior of his choice to defend the case of the appellant vide order dated 12.09.03. After hearing the learned Counsel for the appellant this court admitted the appeal for hearing vide order dated 16.09.03.
4. Before the learned Trial Court the prosecution examined as many as 15 witnesses altogether in order to prove its case. The defence case, as is gathered, from the trend of cross-examinations and appellant's examination under section 313 Cr. P.C. is that of innocence and false implication. The defence has, however, examined none in order to substantiate such plea of innocence, denial and false implication.
5. It would be profitable to trace the brief outline of different witnesses examined by the prosecution in support of its case to have a comfortable grasp of 6 the prosecution case projected hereinbefore. The witnesses are, therefore, broadly categorized under the following heads :-
A. Ocular Evidence
(i) Relations of the Deceased :-
PW1 :- Bidyut Barik, the nephew of deceased Bhupati, since deceased is the FIR maker. He also witnessed the preparation of Inquest Report and Seizure List and also put his signature on both the documents. Prior to the ghastly incident of murder, he saw the deceased to altercate with the appellant in the presence of Santanu in Sayrapara Market fair for the last time. He is also the Post Occurrence witness who saw the dashing episode and also reached the P.O. immediately after the main incident.
PW5:- Santanu Barik, the son of the deceased is an injured child witness. He is the sole eye witness to the incident of gruesome murder. PW 6 :- Kedar Ch. Barik is the brother -in-law of the deceased and is a resident of neighbouring Charda village adjacent to Talda, the native place of the deceased and most of the witnesses. He is the Post Occurrence witness as well as a witness to the Seizure and Inquest.
PW7 :- Kenaram Barik, an elder brother of the victim is the resident of Talda village and is also a Post Occurrence witness.
ii) Independent Co-villagers :-
PW2 :- Chaityanna Das, who witnessed the appellant to altercate with the deceased in the evening hours of the tragic night in the presence of his son 7 Santanu at Sayrapara Market Fair also visited the P.O. immediately after the occurrence.
PW3 :- Harekrishna Das, another co-villager being a Post Occurrence witness also had the occasion to see the appellant to altercate with the deceased at about 7 PM in the presence of his son Santanu at Sayrapara Market Fair.
PWs 4 & 11 :- Iswar Giri and Srikanta Pariya respectively, being the co-villagers reached the P.O. immediately after the incident.
PW10:- Jagannath Das, another co-villager who is a computer school teacher also found both the deceased and appellant to altercate each other in the presence of his son Santanu (PW5) at Sayrapara Market Fair for the last time before the incident. He is also a Post Occurrence. witness who along with others shifted Santanu, the injured to the Nakursini Christian Hospital. PW12 :- Kanailal Dey, is the owner of a sweet-meat shop in the Sayrabazar Fair and the appellant used to supply channa in his shop regularly for a considerable period.
PWs 8 &13 :- Panchanan Patra and Tapan Das respectively were tendered for cross-examination and their cross-examination was declined.
B. Medical Evidence :-
PW9 :- Dr. Sudhanshu Sekhar Maity, attached to Khargapur Hospital conducted the PM Examination on the dead body of the deceased and offered his medical opinion.
C. Police Witness :-8
PW 15 :- Amiya Kar, S.I. is the I.O. of this case. He seized the blood stained earth and control earth from the P.O. under proper seizure list (Exhibit 3/3)after the incident. He sent the dead body of the victim for PM Examination through constable No. 2939 Bholanath Mahapatra to Kharagpur Hospital. He also examined the injured witness Santanu along with others in course of investigation.
6. Bidyut Barik (PW1), although not an eye witness to the ghastly murder, testifies that he found accused Dhiren & Bhupati to make an altercation in Sayrapara Market Fair in the presence of Santanu (PW5). He has also narrated the incident of dashing of appellant's bicycle against the bicycle of Aswini, as a result of which both of them fell down on the ground and when he focused his torch light he and other co-villagers found Dhiren to proceed hurriedly towards Sayrapara Market Fair without responding to their queries. As a Post Occurrence witness he further deposes that, after having arrived at Krishnanager, they found the dead body of Bhupati with bleeding injuries on his throat and also weeping Santanu who disclosed to them that accused Dhiren assaulted his father with a knife and when he raised a hue and cry, the appellant also assaulted him with the same knife on his left chest and arm pit. The uncle of the deponent succumbed to such stab injuries on the spot. The injured son of the deceased was admitted to Nekursini Christian Hospital by the deponent. He also put his signature on the FIR which was scribed by one Panchanan Das under his instruction. He also signed the Seizure List and Inquest Report as one of the 9 witnesses. It is also available from his testimony that both his uncle Bhupati and the appellant Dhiren used to deal in Channa and one week prior to the said occurrence the appellant Dhiren also threatened his uncle with dire consequences. During his cross-examination he reiterated that accused Dhiren made altercation with his uncle Bhupati at village fair. He has thus corroborated the contents of FIR. Nothing has been elicited from his cross examination to cast a shadow on trustworthiness of this deponent. His testimony inspires confidence in the mind of the court and as such, his evidence is creditworthy.
7. Aswini Das (PW2) corroborates PW1 by deposing that on their way back from the village fair at about 11 PM on the day of chariot festival along with Bidyut Barik PW1 and 2/3 other co-villagers, they found the appellant to dash his bicycle against the bicycle of Aswini Das (PW2), and, thereafter, as a result, both of them fell down on the ground when Bidyut focused his torch light on the person, they found that it was Dhiren of Raipur who, however, left the place in hot haste in his bicycle without replying to their queries. After covering a short distance they found the co-villager Bhupati Barik with slited throat and his son with injuries on the left side of his chest. Shantanu (PW5) disclosed to them that accused Dhiren caused the death of his father and also assaulted him. Santanu was shifted to Nakursini hospital by PW 1 and 3/4 others. His testimony remains unshaken during cross-examination. There is nothing on record to indicate that this deponent is inimical to the appellant. We, therefore, do not find any reason rather convincing to discard the corroborative testimony of this witness on the sequence of events preceding the incident of a gruesome murder. 10
8. The testimony of PWs 1 & 2 also stands corroborated by PW3 (Baidyanath Das) & PW4 (Iswar Giri) who testify in similar vein. While they had been to Sayrapara Fair they found accused Dhiren Barik to exchange hot words with Bhupati Barik over their business affair. Both of them also supported the corroborative version of both PWs 1 & 2 on the episode of dashing whereupon the appellant and PW2 fell down from their respective bicycle. They also found the deceased lying on the side of the village road and his throat was slit while the injured son of the deceased was weeping. However, Santanu, PW5 the injured disclosed that there was an altercation between his father and the appellant and, thereafter, the assailant stabbed his father with a knife causing his instantaneous death. He also assaulted Santanu with the same knife. At the very outset of cross-examination it is reiterated by PW3 that they along with accused Dhiren, and Bhupati since deceased had been to the said village fair at Sayrapara. It is, however, admitted by him that they did not give any importance to the altercation between Dhiren and Bhupati. Nothing has been extracted from his cross-examination to indicate that he resorted to falsehood in any manner. In fact, no such suggestion was also offered to PW3. So, we do not find any earthly reason to disbelieve this independent co-villager. It is, however, suggested to PW4 that he was deposing falsely at the instance of Bidyut Barik (PW1)and Aswini (PW2) as they belonged to the same group. Such wild suggestion being not plausible is not acceptable. Moreso, whenever, the same is not backed by materials on record. In our considered opinion, both PWs 3 & 4 have successfully 11 stood the test of cross - examination. Therefore, we feel inclined to place reliance upon their corroborative testimony.
9. Santanu Barik :- PW5, the deceased's son had the misfortune of witnessing a dastardly attack upon his father who was stabbed on his neck with a knife by the assailant in full view of his son. In such a perplexed situation, he somehow raised his voice but in turn he was also assaulted with the same knife by the assailant. A heart rendering narration of a ruthless onslaught in minute detail was given to the post occurrence witnesses who reached the P.O. immediately after the incident. It is available from his testimony that he had been to the car festival at sayrapara in the afternoon. In his evidence before the Court this minor child aged 12 years stoically narrated the terrible incident in its entirety with commendable firmness without allowing his emotion to come to the fore. He testifies that while he alongwith his father was sitting in a sweet meat shop, the appellant brought channa in the said shop and extended threat to his father preceded by a demand of money. He further deposes that while he was returning with his father in the same bicycle the appellant also followed them. While they reached between village Bablapur and Eaktal, Dhiren renewed his demand for money but his father could not concede to such demand. The appellant stabbed his father with a knife and when he raised his voice after seeing such critical condition of his father, the appellant assaulted him also with the same knife. It is further available from his testimony that accused, thereafter, fled away riding on his bicycle towards Sayrapara. According to the deponent, PW1, PW2 and others came to the P.O. and he narrated the entire incident to them. He was, thereafter, 12 taken to Nekursini Hospital for treatment by PW1. Pausing for a moment it may be pointed out that PWs 1,2, & 3 also corroborate PW5 since they testified that they came to know about the incident from PW5. During his cross-examination the defence could not demolish the cogent, consistent and convincing testimony of this injured child witness. At the outset of his cross-examination he forcefully reiterates that he went to the local car festival at Sayrapara with his father and other persons at about 5 PM. Even though, several villagers were also returning to their respective houses no other villagers remained present while the said occurrence took place. The injured child witness is candid in his approach and out of such simplicity as a child, his narration of the incident is absolutely free from any embellishment. His straightforwardness prompted him to admit that he became frightened when his father was assaulted by accused Dhiren and he subsequently raised his voice at the relevant point of time. It is importantly important to note that no suggestion was offered to this child witness that he was tutored or coached to depose in this fashion before the court.
10. Dr. Sudhanghu Sekhar Maity, the M.O. as PW 9 deposes that on examination of the dead body of one Bhupati identified by one constable being No. 2939 namely Bholanath Mahapatra, he found the following injuries ;-
1. One penetrating wound about 5" deep on the right side of the neck just below and to the right of the angle of the thyroid cartilage, the entrance of the wound being tramoversely directed 1" x ¼", margins sharp, involving cutting of the might sternomastoid muscle and the right common carotid artery (the cut ends of 13 the artery being completely separated from each others) and other soft tissues underlying its just above. The root of the neck is laceration of Upper past of the might lung.
2. The incised would longitudinal ½" x ¼" skin deep over the medial aspect of the base of the left little finger, directed down wards.
11. It was opined by him that the death was caused because of Cardio respiratory failure due to shock and hemorrhage as a result of above mentioned injuries. The death was homicidal in nature. The PM report was marked as Exhibit 5.
12. The Doctor further opined that the said injuries may be caused by incriminating substance like knife. The injuries he found in the left hand of the deceased were caused because of his attempt to rescue himself.
During cross-examination it is reiterated by him that the said injury may be caused by knife like sharp cutting weapon.
13. Against the backdrop, of such ocular evidence being consistent with medical evidence Mr. Mahato appearing on behalf of the appellant as a state defence argues that none of the witnesses except the FIR maker Bidyut Barik(PW1), Aswini Das (PW2) and Santanu (PW4) has been named in the FIR and as such the credibility of other witnesses is at stake. In the second limb of his argument it is submitted by him that evidence adduced by the minor son of the deceased alleged to have sustained injury should be disbelieved since his testimony is full of contradictions. According to 14 him, the presence of PW5 at the scene of occurrence is doubtful. Moreso, whenever the purported injury report which has been marked X for identification could not be proved during trial by the Doctor who issued the same. It is further submitted by him that, even if such injury report is taken into consideration the charge under section 325 IPC cannot be sustained for the simple reason that the nature of injuries sustained by PW5 does not satisfy the ingredients of an offence under section 325 IPC. It is further pointed out by him that the said report speaks about lacerated injury and according to him such laceration may be caused by a lathi and not by a knife. Therefore, consistent ocular evidence indicating use of knife by the assailant does not find any support from the injury report in question. This conflict between ocular evidence and medical evidence is sufficient to cast a shadow on the genuineness of the prosecution story.
14. It is next argued by him that none of the witnesses including the minor son of the deceased has stated in their evidence that wearing apparels of the assailant became blood stained. According to him, in a case of any penetrating injury blood is bound to sprinkle and wearing apparels of the assailant would also be blood stained but there is nothing on record to indicate that blood samples were ever sent to the FSL for its forensic examination. Even though the appellant was recognised with the help of a torch light of PW1, the said torch light was also not seized. Although the bicycle in question was seized, the same was not produced before the court during trial.
15
15. Mr. Mahato, further submits that, it was alleged that appellant's bicycle dashed the bicycle of PW2, but it is surprising to note that none of them was injured. In the absence of any injury on the person of PW2 or the appellant or any damage of either of the two bicycles it is to be inferred that the story of alleged dashing was subsequently developed.
16. Mr. Mahato is of the view that some of the questions especially question No. 14 & 15 put to the appellant during his examination under section 313 Cr. P.C. were in the form of accusation and some other questions were also in jumbled up fashion. The appellant being a rustic fellow stood confused and could not answer the same in an effective and meaningful manner. In this context he has referred to two rulings of the Hon'ble Apex Court reported in (2009) (6) SCC 583 [Shaikh Maqsood, Appellant v. State of Maharastra, Respondent] and in (2009) 6 SCC 595 [Ranvir Yadav, Appellant v. State of Bihar, Respondent]. In the last leg of his argument it is submitted by him that the evidence and materials on record are quite insufficient to fasten the appellant with the guilt of commission of murder of the deceased and as such the findings of the learned Court below on that score are not sustainable.
17. Such submission is however, disputed by Mr. Ganguli, learned Counsel for the State. It is submitted by him that the testimony of the sole eye- witness i.e. the son of the deceased who also sustained injuries in the same transaction should be given supreme importance and minor discrepancies, if any, should be ignored. The evidence of FIR maker, PW 1 and other co- 16 villagers (PWs 2,3 & 4) cannot be disbelieved since their testimony stands corroborated by PW 5, the injured witness and the informant. It is pointed out by him that even though the learned Counsel for the appellant has sought to highlight minor discrepancies in the testimony of PW5, no contradiction in respect of those discrepancies was taken from the I.O. PW
15. It is also argued by him that section 174 Cr. P.C. does not make it obligatory that a Magistrate should invariably be deputed to hold PM Examination of the deceased. Furthermore, the appellant has failed to show specifically that a prejudice was caused to him because of his failure to reply questions put to him for lack of understanding during his examination under section 313 Cr.P.C. Rather, it is quite evident from the examination sheet itself that he understood the import of the questions and answered the same in positive manner. Therefore, the learned Counsel for the state supports the impugned order of conviction and sentence.
18. Relying upon two rulings of the Hon'ble Apex Court reported in 2008 (1) SCC Cri 331 (Kunju @ Balachandran, Appellant v. State to Tamil Nadu, Respondent) and 2008 (2) SCC Cri 416 (Prajeet Kr. Singh, Appellant v. State to Bihar, Respondent), it is argued that in a criminal trial testimony of a solitary witness may form the basis of conviction. It is further submitted by him that the appellant carried a knife with him while he was returning from Sayrapara Bazar. Such conduct of the appellant unequivocally indicates his aggressive attitude and determination to kill the victim. The victim was stabbed by a knife with the clear intention to cause his death 17 in execution of his previous plan. The present case, therefore, squarely falls within the ambit and scope of the penal provision of 302 IPC. In such circumstances, learned State Counsel submits that learned Trial Court is absolutely justified in convicting the appellant under section 302 IPC and also sentencing him to suffer R.I. for life. There is hardly any scope to interfere with the impugned order of conviction and sentence.
19. We have paid anxious consideration to arguments made at the Bar. In our considered opinion non-mentioning of the names of most of the witnesses examined by the prosecution in the FIR is of no consequence. It is a settled position of law that the object of an FIR is to give requisite information to a police officer as to the commission of a cognizable offence so that he may proceed to take up investigation of the case. Therefore, it is not mandatory for the FIR maker to mention the names of all witnesses who attended the P.O. immediately after the occurrence and other relevant particulars about the details of the occurrence which are likely to be elicited in course of examination of a witness. That apart, the informant may not have knowledge of all the relevant facts of the occurrence at the relevant point of lodgment of the FIR. In fact, omission of any such fact in the FIR should by itself never be treated as contradiction for the purpose of section 145 of Evidence Act. We do not concur with the learned counsel's view that the credibility of the witnesses would be seriously affected if their names do not figure in the FIR. There is no requirement of law for incorporation of names of all witness in the FIR which sets the law in motion vide 2002 Cr. L. J. 18 2024 [Bhagwan Singh and Ors., Appellants v. State of M.P., Respondents] ::
AIR 2002 SC 162).
20. On the question of non-seizure of incriminating weapon i.e. knife and non -
production of the seized bicycle before the Court appears to be an omission from the part of the I.O. However, a close scrutiny of the seizure list (Exhibit 6/1) whereby wearing apparels of the appellant were seized tends to show that there were blood stains on the wearing shirt of the appellant. It is also a glaring lapse for the Investigating Agency not to send blood samples and wearing apparels in question for its forensic examination. At any rate, it is a settled position of law that because of faulty investigation or any lapse/omission on the part of the I.O. the entire case of the prosecution should not be thrown over board paving the way for acquittal of the perpetrator of a serious crime. In our considered view, omission or negligence of the Investigating Agency (i) to seize the weapon of offence i.e. knife, (ii) to send the wearing apparels and blood samples to its forensic test and also (iii) to cause production of the seized bicycle during trial cannot be a ground to disbelieve the prosecution witnesses including the sole eye-witness i.e. the deceased's son who also sustained injuries in the same occurrence.
21. It has been ruled in Ram Bali, Appellant vs. State of U.P. Respondent reported in 2004 Cr. L.J. 2490 SC that mere failure or omission or negligence on the part of the investigating officer cannot affect credibility of the prosecution version.
19
22. In another ruling reported in 2004 Cr. L.J. 1807 (Dhanaj Singh @ Shera & Ors., Appellants vs. State of Punjab, Respondent) the same principles have been reiterated by observing inter alia that accused cannot be acquitted solely on account of faulty investigation and to do so 'would tantamount to playing into the hands of the investigating officer, if investigation is designedly defective'. It is accordingly held that the prosecution case cannot be allowed to suffer solely on the ground of defective investigation, whenever the case is otherwise proved with unimpeachable and unrebuttal materials and circumstances on record beyond any reasonable doubt. In such a fact situation no importance should be attached to the loop-holes left in the investigation to help the accused.
23. The next question comes for consideration is whether conviction can be based on the solitary evidence of a child witness being the son of the deceased. As a general rule a court can act on testimony of a single witness though uncorraborated in a criminal trial for the simple reason that one credible witness out-weighs the testimony of other witnesses of doubtful veracity. It is well settled proposition of law that the evidence is not to be counted but only weighed and further it is not the quantity of evidence but the quality that matters vide 1997 Cr. L.J. 362 [Binay Kumar Singh, Appellant v. State of Bihar & Ors, Respondents] = AIR 1997 SC 322. The trite of law that evidence is to be weighed and not counted is ingrained in section 134 of Indian Evidence Act itself. In the present case the testimony of the injured minor child witness, the sole eye-witness to the incident of 20 murder (PW5) is found to be trustworthy being supported by medical evidence, post occurrence witnesses as well as objective finding of the I.O. Therefore, there would be no necessity of multiplying the number of witnesses. However, the court is only required to form its judicious opinion whether the witness is fully reliable or not.
24. In the case of oft - quoted Vadivelu Thevar vs the state of Madras, reported in 1957 Cr. L. J. 1000 = 1957 SC 614, the Supreme Court has highlighted the legislative intent and object in laying down general rule recognized in section 134 of the Evidence Act and has held that conviction can be based on the evidence of solitary eye-witness. In this context the Apex Court has classified oral testimony in three categories :-
1. Wholly reliable, 2) Wholly unreliable & 3) Neither wholly reliable nor wholly unreliable.
In the first category of case it is easy for the court to come to a conclusion either way it may convict or acquit on the testimony of the single witness, if it is found to be absolutely trustworthy.
Similarly in the second category of case there is no difficulty in arriving at an appropriate conclusion. The court is however, to be more circumspective and has to look for corroboration in material particulars by reliable testimony direct or circumstantial and also is to insist on plurality of witnesses in third category of cases. The principles of law laid down in the afore-quoted ruling have been reiterated time and again in a catena of subsequent decisions by the Apex Court. 21 The question of corroboration arises only in case of the witnesses neither wholly reliable nor wholly unreliable in which the court is called upon to follow the rule of prudence. It is, therefore, logically concluded that conviction even in a murder case on the testimony of a solitary witness is legal if he is wholly reliable.
25. In the case of Amar Singh, Appellant v. Balwinder Singh & Ors., Respondents case reported in AIR 2003 SC 1164 the Apex Court has referred to section 134 of Evidence Act which provides no particular number of witnesses shall in any case be required for the proof of any fact and has followed the principles of law as enunciated in the celebrated and very illustrating judgement in Vadivelu Thevar vs the state of Madras, reported in 1957 Cr. L. J. 1000 = 1957 SC 614 (supra). Similar views have also been expressed by the Supreme Court in another ruling reported in AIR 2006 SC 2908 (Syed Ibrahim vs. State of Andhra Pradesh).
26. On the question of reliability of an injured child witness it is, therefore, well settled that the evidence of an injured child witness can be the sole basis, in fact, the best basis for either recording or sustaining a conviction. This is because injuries ensure the presence of a witness once the presence is ensured, the limited question which remains is that of his credibility and truthfulness. It is, however, required that the prosecution must bring the evidence on record to show that the injured witness received injuries in the same occurrence. In the present case, however, there is overwhelming ocular evidence to establish that PW5, the injured sustained injuries and 22 the assailant assaulted him with the same Knife which was used to cause the death of his father. True, the injury report of Santanu issued by Dr. Angshumita Pramanick, M.O. attached to Nekursani Christian Hospital, Khatnagar, Medinipur could not be exhibited since Dr. Pramanik was not cited as a witness in the Charge-sheet to prove the injury report in question. Since such injury report was collected by the I.O. in course of official business the same could have been exhibited at the instance of the I.O. At any rate, the said injury report marked as 'X' for mere identification has not been exhibited. Therefore, such unexhibited document stands excluded from our consideration.
27. It is, however, beyond comprehension as to why the learned Trial Judge failed to get the injury report exhibited by the I.O. who collected the same on requisition from Nakursini Christian Hospital in discharge of his official duties. In our considered view, the injury report prepared by a medical officer in discharge of his / her public duties and sent to the I.O. on examination of the injured on proper requisition can be referred to as being public document in terms of section 74 of Indian Evidence Act. In such circumstances, the I.O. is competent to prove the said injury report in the absence of the medical officer with the leave of the learned Trial Court. Be that as it may, the fact remains that the injury report in the present case not being proved and exhibited, this court is unable to place any reliance upon the same. That being so, Mr. Mahato's contention that a lathi was used to cause lacerated injuries on the person of PW5 stands overruled. 23
28. It cannot be said that the child witness even if he is found reliable, in liable to be discarded. Law is that the evidence of child witness must be evaluated with abundant care, caution and circumspection since he is susceptible to be swayed by what others tell him and thus it is easy to tutor a child witness. Therefore, in case of unlikelihood of tutoring, the testimony of a child witness has to be examined on its own facts and attending circumstances. As already indicated earlier there is nothing on record even in the form of defence suggestion that PW 5, the injured child witness has ever been tutored.
29. In the case in hand the evidence of child witness stands corroborated in material particular connecting the appellant with the crime of murder and further the testimony of this injured child witness is also absolutely in conformity with the medical evidence. More so, whenever the tragic occurrence took place in his presence PW5 being the son of the deceased and sustaining injuries in course of the same occurrence is the most natural witness. It is difficult to imagine that he would leave the real culprit and implicate an innocent one. Considering all these especially the fact that the testimony of this child witness does not suffer from any inherent infirmities or intrinsic contradiction, we are to opine that it is safe and prudent to act upon such testimony of this injured child witness.
30. We have next taken into consideration two decisions of the Hon'ble Apex Court cited on behalf of the Appellant. In Shaikh Maqsood's case reported 24 in (2009) (6) SCC 583 (supra) conviction of the appellant was not maintained since no question was put to the accused during his examination u/s 313 Cr. P.C. that he was the author of the crime. But in the present case, it is needless to mention that all incriminating materials indicating his involvement in commission of such a heinous crime of murder were put to him during his examination under section 313 Cr. P.C and he answered them effectively. In Ranvir Yadav's case reported in (2009) 6 SCC 595 (supra), it is held that requirement under section 313 Cr. P.C. is not an empty formality and incriminating materials and accusation are required to be put to the accused specifically. As already indicated earlier all these legal requirements have been satisfied in course of appellant's examination under section 313 Cr. P.C. by the learned Trial Court. We, therefore, do not find any lapse on the part of the learned Trial Court in this regard. Therefore, aforementioned two rulings relied upon by Mr. Mahato, have no application in the present case in any manner either contextually or factually.
31. The most significant aspect of the present case of murder is that such ghastly crime was preceded by an episode of altercation between the deceased and the assailant in a Sayrapara Market Fair in the presence of the son of the deceased and the same was also witnessed by PWs 1,2,3 and
11. The Post Occurrence Witnesses i.e., PWs 1 to 4 and 10 & 11 also had the occasion to reach the P.O. within the shortest possible time and that too immediately after an incident of dashing of appellant's bicycle with one 25 Aswini Das (PW2), a co-villager who was also plying his own bicycle. These two episodes shortly before and after the incident of fatal stabbing of the victim in the presence of his son taken together strengthens the prosecution case indicating the appellant's involvement in commission of the offence as alleged against him. As a matter of fact, the sequence of events as unfolded through the evidence of independent co-villagers coupled with the testimony of an injured eye-witness and medical evidence portrays a grim picture of slashing victim's neck with a sharp knife by the appellant while his son stood transfixed with astounding shock and horror at the sight of such a horrendous crime of murder of his helpless father.
32. Taking such factual scenario into account the testimony of the sole injured child witness, PW5 has been subjected to rigorous judicial scrutiny with great care and caution and in our opinion, it has passed the test of reliability and truthfulness.
33. Therefore, on proper evaluation and consideration of entire gamut of ocular evidence including the testimony of the sole injured who is wholly reliable eye-witness in our critical assessment coupled with medical evidence which is perfectly in conformity with oral testimony and other relevant surrounding circumstances and weighing them in the scale of 26 probabilities we cannot but hold that the prosecution has proved and clearly proved the charge under section 302 IPC against the appellant beyond any shadow of reasonable doubt. Therefore, there is hardly any scope to interfere with the order of conviction and sentence impugned. We also do not feel inclined to disturb the order of conviction under section 325 IPC and such conviction is also maintained in the facts and circumstances of the present case.
34. In the light of foregoing discussion the judgement and order of conviction impugned stands confirmed. The sentence of life imprisonment together with a fine of Rs. 1000/- in default whereof to suffer one month Simple Imprisonment imposed by the learned Trial Court for the proven charge under section 302 IPC appears to be just and reasonable. Therefore, such sentence is also affirmed. However, we do not think it expedient and necessary in the given situation to award a separate sentence for the proven charge under section 325 IPC.
35. We, therefore, do not find any merit in the present Jail Appeal. Accordingly the Appeal with a slight modification in sentence as indicated above stands dismissed.
27
36. The learned Trial Court is directed to issue a revised Jail Warrant accordingly.
Let the Lower Court Record together with a copy of this judgement and order be sent down forthwith to the learned Trial court for necessary compliance.
Another copy of the judgement and order also be forwarded to the Superintendent of Midnapore Central Correctional Home with a direction upon him to communicate the result of the Jail Appeal to the convict appellant.
Photostat certified copy of this order, if applied for, be supplied on priority basis.
(Raghunath Ray, J) I Agree (Ashim Kumar Banerjee, J.)