Calcutta High Court (Appellete Side)
Bhagabati Manna vs The State Of West Bengal on 8 March, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA 742 of 2004
Bhagabati Manna
Vs.
The State of West Bengal
For the appellant : Mr. Jayanta Narayan Chatterjee
Mr. Debasish Banerjee
Mr. Apalak Basu
Mr. Dwaipayan Biswas
Mr. Aniruddha Bhattacharya
: Mr. Sanjay Banerjee
For the State
For the Amicus Curiae : Ms. Anusuya Sinha
Heard on : 27.11.2015, 04.12.2015, 11.12.2015, 14.12.2015, 06.01.2016 & 07.01.2016
Judgment on: 08.03.2016
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated September 10, 2014 and September 13, 2014 respectively passed by the Ld. Additional Sessions Judge, Tamluk, Dist. Midnapur in Sessions Trial No. 1(6)2003 arising out of Sessions Case No. 3(10)2000. By virtue of the impugned judgment and order appellant was convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo imprisonment for six months more for committing offence under Section 302 of the Indian Penal Code (hereinafter referred to as I.P.C).
The prosecution case, in brief, is as follows:-
On September 24, 1997 in the morning an information was received at Sutahata P.S. with regard to unnatural death of one Deba Prasad Samanta. Accordingly P.W.14 along with the officer-in-charge of Sutahata P.S. went to Chaulkhola village after registering a U.D. Case no.29/97 and found the dead body of the victim Deba Prasad Samanta bearing sharp cut injuries on the neck was lying near the betel vine of Sasanka Shakhar Manna. P.W.14 then made inquest over the dead body of the victim, took photographs of the dead body by engaging photographer, seized blood stained earth, controlled earth, wearing apparels of the deceased etc. by a seizure list (Ext.3) in presence of witnesses.
A written complaint (Ext.1) received at 11.15 hrs. at the place of occurrence from P.W.1,brother of the deceased, was sent to the P.S. for registering an F.I.R. and as such a Sutahata P.S. No. 84 dated September 24, 1997 was registered. P.W.14 took up investigation of the case. During investigation, P.W.14 examined available witnesses and recorded their statements u/s 161 of the Code of Criminal Procedure, arrested the accused-appellant on September 28, 1997. Thereafter leading to the statements of accused-appellant, the investigating officer, P.W.14, recovered the weapon of offence from the tank of Sasanka Manna and blood stained saree of the appellant from her house in presence of the witnesses by preparing seizure lists (Exts. 6, 7) and forwarded the accused-appellant before the Magistrate for recording her statements u/s 164 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). Seized alamats were sent to the FSL for examination. Thereafter on completion of investigation charge sheet was submitted accordingly against the appellant under Sections 302/201/34 IPC.
Charges under Sections 302/ 201 IPC were framed on June 18, 2003 against the accused-appellant and when the accused-appellant pleaded not guilty to her involvement in the crime she was put to trial. Prosecution examined 14 witnesses including the father, mother, brother and co- villagers of the victim, doctor who conducted the post mortem examination, Judicial Magistrate who recorded the confessional statements of the accused-appellant u/s 164 Cr.P.C. besides the police personnel and also produced and proved the written complaint, seizure lists, inquest report, PM report, FSL report, photographs which were marked as Exbts. 1 to 10. Thereafter, on completion of trial and after examination of the appellant under Section 313 Cr.P.C. learned court below passed the impugned judgement.
The learned Advocate appearing on behalf of the appellant, Sri Jayanta Narayan Chatterjee submitted that there was no eye witness to the incident in question and the entire case is based on circumstantial evidence and the chain of circumstances from which the conclusion of guilt had been drawn had not been fully established. According to Mr. Chatterjee the impugned judgment, order of conviction and sentence passed by the learned Court below are also not sustainable in law for the following grounds:-
i) There was vital contradiction in between the FIR, inquest report and the evidence of the doctor with regard to the number of injuries sustained by the victim. According to the FIR there was only one injury on the throat of the victim but as per the inquest report there were 3 injuries on the throat of the deceased whereas according to doctor there were six injuries on the person of the deceased.
ii) There was also material contradictions in between the inquest report and P.W.1 with regard to the wearing apparel of the deceased. According to inquest report yellow coloured shirt, green coloured trouser, white coloured vest and white coloured inner-wear were found on the person of the victim whereas P.W.1 saw the victim was wearing white coloured half pant and white coloured vest.
iii) The charge framed against the accused-appellant on June 18, 2003, not sustainable in law in view of the provision of Section 212 of Cr. P.C. as the specific date, place as also time of occurrence of the incident were not mentioned in the charge framed against the appellant.
iv) There had been serious doubt about the reported recovery of the weapon of offence and blood stained wearing apparel leading to the statements of the appellant as no such statement of the accused-appellant recorded u/s 27 of the Indian Evidence Act was produced and proved before court nor the same was supported by the seizure witnesses.
v) The statement recorded under Section 164 Cr.P.C. of the accused-
appellant should not be taken into consideration being not reliable and trustworthy as accused-appellant was in custody of the police and even no legal aid was provided to her before recording her such statement.
vi) There was no explanation from the prosecution why surathal report was prepared in connection with an U.D. case when the complaint was lodged at the place of occurrence and why no sketch map was prepared by the investigating officer though there was a noting in the case diary about the descriptions of the surroundings.
vii) The evidence of P.W.14 was not fully reliable as he did not submit the charge-sheet and the investigating officer who submitted the charge sheet was not examined by the prosecution.
viii) The evidence of P.W.8 relating to extra judicial confession was not believable as he was not examined by the I.O. during investigation and he stated all these before the court for the first time.
ix) No motive for committing the offence by the appellant was proved. Even the relation with the accused was good, so there was no reason to commit murder of the deceased.
Without prejudice to the rights and contentions of the appellant with regard to the submissions made herein above, it is submitted by Mr. Chatterjee that the decision of the learned Court below with regard to the commission of offence by the appellant punishable under Section 302 of IPC was not based on evidence.
According to Mr. Chatterjee, there was no premeditation in the commission of crime and the act was done in a heat of moment without taking any undue advantage or acting in a cruel manner. According to him, the case of appellant fell within Exception 4 to Section 300 of IPC and the appellant should have been convicted for the offence of culpable homicidal not amounting to murder punishable under Section 304, Part-II, IPC.
According to Mr. Chatterjee, learned Court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment,order of conviction and sentence.
Reliance is placed by Mr. Chatterjee on the decisions of Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs. State of Maharashtra reported in (2010) 13 Supreme Court Cases 657 and the decision of the Hon'ble Supreme Court dated 24.11.2006 passed in Appeal (Crl.) 1635 of 2005 in the matter of Babubhai Udesinh Parmar Vs. State of Gujarat.
According to Ms. Anusuya Sinha, learned amicus curiae, confessional statement of the appellant should not be taken into account at first in holding her guilty of the offence of murder and it should be taken into account only after evidence and other circumstantial evidence lead to prove the guilt of the appellant.
According to Ms. Sinha, no legal aid was provided to the appellant before recording her statement under Section 164 Cr.P.C. and furthermore appellant has retracted from her confessional statement during recording of her statement under Section 313 Cr.P.C. and no time limit has been prescribed for retraction.
According to Ms. Sinha, appellant in order to save herself had taken such drastic steps and as such her conviction u/s 302 I.P.C. was not justified.
Reliance is placed by Ms. Anusuya, learned amicus curiae, in the matter of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India reported in (2011) 1 SCC (Cri) 706; (2011) 2 SCC 490. Alok Nath Dutta and Others Vs. State of West Bengal reported in (2008) 2 SCC (Cri) 264; Chandrakant Chimanlal Desai Vs. State of Gujrat reported in (1992) 1 SCC 473; Yogendra Morarji Vs. The State of Gujrat reported in AIR 1980 SCC 660; Surinder Kumar Vs. Union Terriotory, Chandigarh reported in (1989) 2 SCC 217.
Ld. Advocate representing the state submitted, in his usual fairness, that there was no eye witness of the incident in question and the prosecution is also not relying on the recovery of the weapon of offence. According to him the entire case is based on the evidence of P.W.8 to whom appellant made extra judicial confession telling that she had killed the victim, her own confessional statements made before the Magistrate and her absconsion from the house immediately after the incident.
According to ld. Advocate representing the state, P.W.8 deposed before court almost after 7 years of the incident, so it was not unnatural not to recollect the exact words spoken by the accused-appellant while making her extra-judicial confession.
According to ld. Advocate representing the state, statements made by the appellant during her examination under section 313 Cr.P.C did not come under the purview of retraction as there was no such statement of the accused-appellant that she was forced, allured and/or threatened by police to make such statements.
According to ld. Advocate representing the state, appellant was given 24 hours time for reflection in the Correctional Home and before recording her statements under section 164 Cr.P.C sufficient caution was also given to her, as it is evident from the confessional statements, so there was no reason not to rely on the same.
According to learned advocate representing the state, the injuries found on the throat of the victim have been proved from the inquest and P.M. reports and the place of recovery of dead body was apparent from the statements of almost all the witnesses.
According to learned advocate representing the state, even if motive is not proved in the case of circumstantial evidence the entire case will not go away and the contradictions as pointed out by the defence are not so vital to disprove the case of the prosecution.
According to learned advocate representing the state, all the above circumstances lead to conclude the guilt of the appellant in commission of murder of the victim and as such ld. court below was justified to pass the impugned order of conviction and sentence.
We have considered the submissions advanced by the Ld. Counsel appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses, the materials on record including the FIR, inquest report, post mortem report, statements recorded u/s 164 Cr.P.C., charge sheet, charges framed, amongst other materials, for examining the propriety of the impugned judgement and the order of conviction and sentence.
The learned Court below took into consideration the entire circumstances leading from the place where from the dead body of the victim, bearing sharp cut injuries on his throat, was found, inquest report, P.M. report, recovery of blood stained wearing apparel of the accused- appellant from her house and Katari from the tank near the place of occurrence at her instance and her bald denial about the seizure of blood stained cloth from her house, extra judicial confession made to her co- villager, P.W.8, evidence of material witnesses, the confessional statement recorded u/s 164 Cr.P.C. of the accused-appellant as also her motive to eliminate the victim to arrive at a conclusion that the above circumstances are so conclusive in nature and tendency that the established facts exclude every possible hypothesis except the guilt of the accused-appellant.
On perusal of the evidence of P.W1, we find that he had fully corroborated the F.I.R. The claim of P.W.1 that his elder brother, Debaprasad Samanta, was murdered and his dead body bearing sharp cut injuries on the throat was found near betel vine of Sasanka Manna found corroboration from P.W.3, P.W.14 and inquest report. P.W.5, the doctor, who conducted postmortem examination over the dead body of the victim also found three incised injuries on the throat besides abrasions over right arm, forearm and right side of the chin of the victim and in his opinion cause of death was due to shock, profuse haemorrhage following fatal injuries which was ante-mortem and homicidal in nature. According to him those incised injuries can be caused by assault with Katari. He was not challenged by the defence on this score. So from the above there appears no reason to disbelieve P.W.1 that the victim was murdered and his dead body bearing cut injuries on the throat was found near betel vine of Sasanka Manna.
Admittedly, none of the witnesses examined by the prosecution are the witness to the occurrence and the entire case is based on the circumstantial evidence, extra-judicial confession as also the confession of the appellant. It is the settled proposition of laws that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the offence of the accused. The chain of circumstances should be of a conclusive nature and must be completed and most clearly point out to the guilt of the accused. Reference may be made to the decision of Hanumant Gobind Nargundkar and another vs. State of Madhya Pradesh, reported in A.I.R. 1952 Supreme Court 343 and Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Cri) 755. This principle of law has been elaborately discussed by us in the matter of Biswajit @ Buro Roy vs. State of West Bengal reported in (2015)4 Cal LT 120(H.C.).
So, the circumstances the prosecution has tried to prove against the appellant are the extra-judicial confession made before P.W.8, confessional statements made before the Magistrate, recovery of blood stained wearing apparel of the accused-appellant from her house and Katari from the tank near the place of occurrence at the instance of accused-appellant, the motive behind the murder and her absconsion from the house immediately after the incident.
With regard to the extra-judicial confession of the accused-appellant made to P.W.8, we find from the evidence of P.W.8 that he had specifically stated on oath that after three days of murder of the victim, appellant Bhagbati Manna told him that she committed murder of victim Debaprasad Samanta with Katari. He was cross-examined by the defence but his evidence remained unshaken during cross-examination. It is true that during cross-examination he could not say the specific date, place and the details of what Bhagbati Manna told him about committing of murder of the victim but it is equally true that the evidence of this witness was recorded long after seven years of the incident. So, it is not expected from a rustic village people to narrate in verbatim and every minute details of conversation taken place after such long period. There is also no rule or law that evidence of a witness can not be believed simply because he was not examined by the investigating officer during investigation. Moreover, no suggestion was put to P.W.8 by the defence to show any enmity or ill-will towards the appellant and/or that appellant was not in a fit state of mind when she made such confession. Under the circumstances, there appears no reason to disbelieve the evidence of P.W.8 made on oath.
It is also well settled proposition in the matter of acceptability of extra-judicial confession that if such extra-judicial confession is made voluntary and in a fit state of mind and the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach and passes the touchstone of credibility it can be accepted and can be the basis of a conviction. Reference may be made to the decisions of State of U.P. vs. M.K. Anthony, reported in (1985) 1 Supreme Court Cases 505 , State of Rajasthan vs. Raja Ram, reported in (2003) 8 Supreme Court Cases 180 and Kulvinder Singh and Another vs. State of Haryana, reported in (2011) 5 Supreme Court Cases 258. This proposition has been elaborately discussed by us in the matter of Dal Bahadur Gurung vs. State of West Bengal, reported in (2015)4 Cal LT 286 (H.C.). Learned court below taking into account the entire circumstances came to the conclusion that the extra-judicial confession of the accused-appellant was true and voluntary. We do not find any error with regard to the above conclusion of the learned court below in the light of the settled proposition of law. Therefore, the propriety of the impugned judgment cannot be questioned on the above ground.
With regard to the confessional statements made before the Magistrate, P.W.4, we find from the evidence on record that on September 28, 1997 appellant was apprehended by investigating officer, P.W.14, and was forwarded to court on the next day with a prayer for recording her confessional statements under section 164 Cr.P.C. but on that date her statements was not recorded. On that date the Magistrate (P.W.4) after giving statutory caution to the accused-appellant sent her to the Correctional Home for reflection and only on the next date of her production from Correctional Home i.e. on September 30, 1997, P.W.4, ld. Magistrate recorded her statements under section 164 Cr.P.C (Ext.4) after giving her statutory caution and being satisfied that accused-appellant made statements voluntarily. The evidence of P.W.4 is clear and consistent and nothing has been elucidated in his cross-examination to discredit his statements.
With regard to the time and place of recording statements, it is not mandatory under section 164 Cr.P.C. that Magistrate should record the time and place of recording statements nor there is any rule or law that non mentioning of the time and place in the statements render the entire statements invalid.
With regard to the providing legal aid to the accused-appellant, though we find that there was no direction to provide her free legal aid either on the first day or second day of her production before court below but from Ext.4, it is evident that learned Magistrate had taken due care in that regard and gave sufficient caution to the appellant on the first day of her production and instead of recording her statements on the very first date sent her to Correctional Home for reflection for 24 hours and on the second day when she was produced from Correctional Home she was again given statutory caution by the Magistrate and only after that her confession was recorded. Thus, we find that learned Magistrate had taken sufficient precaution to rule out any kind of interference by police authority before recording the confessional statements of the accused-appellant. Under the circumstances voluntariness of the confession can not be questioned due to absence of any direction to provide free legal aid to the accused-appellant.
With regard to the plea of retraction of her confession during recording her statements under section 313 Cr.P.C., we do not find any substance in the submission of the learned consels appearing for the appellant, as nowhere accused-appellant has denied during recording her statements under section 313 Cr.P.C. that she did not make any confession but her only claim is that she told all those before the Magistrate as directed by the police though no suggestion was put to the I.O. to that effect during his examination before court. She even did not state this to the Magistrate who gave her sufficient caution on both days of her production and even told her that she is not bound to make confession and she would not be remanded to police custody even if she did not confess her guilt but if she confesses it will be used against her and she would be convicted on the basis of her such confession. She was even kept in the correctional Home for her reflection. Learned court below taking into consideration of the entire aspect came to the conclusion that the confessional statements made by the accused-appellant was voluntary, true and trustworthy. We do not find any error with regard to the above conclusion of the learned court below in the light of the settled proposition of law. Therefore, our interference with the impugned judgment is not required on the above ground.
With regard to the defect in framing of charge, as submitted by the learned advocate for the appellant, we find that charge against the appellant was framed on June 18, 2003 under section 302/201 I.P.C. It is evident from the Charge that excepting time of occurrence, date and place of occurrence has been mentioned therein. It is apparent from the record that there was no eye witness to the occurrence and the case was based on the circumstantial evidence ranging from extra-judicial confession before co- villager, confession before Magistrate, absconsion from the house after the incident, recovery of bloodstained articles etc. So, in such a situation it was not expected to mention the exact time and exact place of occurrence. Moreover, charge is an accusation made against a person in respect of an offence alleged to have been committed by him/her and the basic requirement is that it must be so framed as to give the accused person a fairly reasonable idea of the case which he/she has to face. The mere irregularity in framing the charge against the accused, does not vitiate the trial, unless some prejudice is caused to the accused.
Section 215 of the Code of Criminal Procedure clearly states that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Section 464 of the Code of Criminal Procedure also provides that no finding sentence or order by a competent Court shall be deemed to be invalid merely on the ground that no charge has been framed or that there are some errors, omission or irregularity in the charge unless some failure of justice has occurred on that ground.
In order to take the benefit of the same the accused must establish that failure of justice has been occasioned by an error or defect in stating the particulars in the charge. No such plea of any prejudice and/or any defect in framing of charge was taken by the appellant before the learned court below and even no evidence was adduced by her suggesting failure of justice due to defect in framing of charge. There is also nothing on record to show that any prejudice has been caused to the appellant due to such omission. Under such circumstances omission to mention the exact time and exact place of occurrence in the charge does not vitiate the trial. Therefore, our interference with the impugned judgment is not required on the above ground.
With regard to the discrepancies, as pointed by the learned advocate for the appellants, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525. It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247. In the matter of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon'ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The above principles of law have been elaborately discussed by us in the Judgement delivered on January 29, 2016 in the matter of Tutul Sk @ Noor Alam & Anr. vs. State of West Bengal.(In re: CRA 824 OF 2006) In the case in hand, the discrepancies in between the FIR, inquest report and the evidence of the doctor as to the number of the injuries sustained by the victim was minor in nature. Moreover, at nowhere in the written complaint it is mentioned that only one cut injury was found on the throat of the deceased. P.W.1 has clearly stated on oath that he saw 2/3 cut injuries on the throat of the deceased. This also found corroboration from the inquest report as well as the doctor. Similarly the discrepancies as to the wearing apparel of the deceased in between the inquest report and P.W.1,we find that those are natural as P.W.1 deposed after 7/8 years of the incident but certainly those are not so vital going to the root of the case making the prosecution's case doubtful. Therefore, our interference with the impugned judgment is not required on the above grounds considering the same were not contradictions of material dimension.
With regard to the issue relating to the recovery of the blood stained cloth of the appellant from her house and the weapon of offence namely Katari from the tank near the place of occurrence leading to the statements of the appellant, we find from the record that no such statements u/s 27 of the Evidence Act leading to the recovery of the weapon of offence was produced and proved before the court. So, such part of evidence of recovery leading to the statements of the appellant can not be relied on. According to the P.W.14 those recoveries were made on September 28, 1997, the day appellant was arrested and he sent those articles for FSL examination and the reports (Exts.10, 10/1 and 10/2) were collected by the I.O. who succeeded him. On perusal of the evidence of the seizure witnesses, P.W.9 to P.W.13, it appears that they had turned hostile and did not support the prosecution case though they identified their signatures on the seizure lists. But it is evident from the evidence of the P.W.14, I.O., that during investigation P.W.9, P.W.10, P.W.12 and P.W.13, narrated before him about recovery of weapon of offence from the tank in their presence at the instance of the appellant and her confession about commission of murder of the victim by her while P.W.11 narrated about recovery of blood stained from the house of appellant in his presence. Surprisingly, P.W.14 was not challenged by the defence on this score nor any suggestion was put to him that he did not record the statements of the above witnesses and/or that they did not state before him about the recovery of the blood stained cloth of the appellant from her house and the Katari from the tank near the place of occurrence at the instance of the appellant nor she made any confession before them. In such circumstance, there appear no reason to disbelieve the evidence of P.W.14. Moreover, according to the settled proposition of law, the entire evidence of such hostile witnesses cannot be washed off the record rather it is admissible to use the examination-in-chief as well as cross-examination of those witnesses in so far as it supports the case of the prosecution and there is no bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. This issue has also been elaborately discussed by us in the Judgement delivered on May 7, 2015 in the matter of Shyam Sabar & Anr. vs. State of West Bengal & Ors.(In re: CRA 146 of 2014). While delivering the judgement we relied upon the decision of Bhajju @ Karan Singh (supra) and Periyasami vs. State, reported in (2014) 6 SCC 59.
We find that the learned Trial Judge relied upon the statements made by the investigating officer, P.W.14, and also the evidence adduced by the above witness to the extent which were corroborated as also the post mortem report, FSL reports and the confessional statements of the appellant made before the Magistrate. Therefore, the above part of the impugned judgment does not require our interference.
Regarding preparation of surathal report in connection with an U.D. case in-spite of lodging the complaint, we find from the evidence of P.W.14 that in the morning of September 24,1997 information with regard to unnatural death Deba Prasad Samanta was received at the Sutahata P.S. and accordingly Sutahata P.S. U.D Case no. 29/97 was started and inquest was conducted by P.W.14 over the dead body of the deceased and thereafter written complaint was submitted by P.W.1, brother of the deceased which was sent to the P.S. for registration. It appears from the letter of complaint that the same was received at the place of occurrence on September 24, 1997 at 11.15 hrs. and at the P.S. at 12.10 hrs. on the same date whereas the inquest was started on September 24, 1997 at 9.10 hrs. in connection with Sutahata P.S. U.D Case no.29/97. The purpose of holding inquest is to ascertain whether a person has died under the circumstances which were doubtful or an unnatural death and if so what is the cause of death. The inquest report is a document of vital importance and has to be prepared promptly. Non mentioning of lodging of FIR or the P.S. case no. in the inquest report is not fatal for the prosecution case. Moreover, no such question was put in this regard to the investigation officer who held the inquest.
Similarly, the purpose of preparation of the sketch map with index during investigation is to identify the place of occurrence and it's surroundings. P.W.14 has specifically stated on oath that he noted in the C.D the surroundings of the place of occurrence where dead body was found. During cross-examination he clearly stated that he prepared the sketch map of the place of occurrence. No such suggestion was put to P.W.14 disputing the place where dead body was found. On the other hand photographs (Ext.9) of the place where dead body was found, taken by the photographer, are produced and proved by the prosecution. The description of the place where dead body was found had been vividly narrated by the P.W.1 and corroborated by P.W.3 and P.W.14 as also from the inquest report. It is true that during trial the said rough sketch map was not produced but non production of the sketch map will not lead to rejection of the prosecution case which has otherwise been proved.
Admittedly, P.W.14 did not submit the charge sheet and the I.O. who submitted the charge-sheet was not examined by the prosecution. But it is evident from the evidence of P.W.14 that it is he who did the entire work of investigation and the police officer who succeeded him merely did the formality of collection of the FSL report and submission of the charge-sheet. It is only when prejudice is shown, non examination assumes importance. In this case, nothing has been brought on record to show that non examination of the police officer who submitted the charge-sheet has caused any prejudice to the appellant. In such circumstances, non examination of the police officer who submitted the charge-sheet will not render the conviction vulnerable. Therefore, our interference with the impugned judgment is not required on the above grounds.
With regard to the motive behind the murder, we find that the learned court below took into consideration the evidence of the younger brother of the victim (P.W.1), mother of the victim(P.W.3) and father of the deceased(P.W.7) as also the confessional statements (Ext.4) to arrive at the conclusion that there was illicit relation between the accused-appellant and the victim and the accused-appellant had taken a loan of Rs. 25,000/- from the victim on the occasion of marriage of her daughter and on the date of the incident victim demanded repayment of at least Rs. 5,000/- from the accused under the threat of killing her husband and the accused wanted to wriggle out of the liability for making repayment of loan and to regain her reputation before the members of her family and the villagers by making an end of her illicit relationship with the victim. On going through the evidence of above witnesses as also the statements recorded under section 164 Cr.P.C (Ext.4), we do not find any error with regard to the conclusion of the learned court below towards illicit relation between the accused-appellant and the victim but we do not agree with the observation of the learned court below that accused-appellant had taken a loan of Rs.25,000/- from the victim on the occasion of marriage of her daughter as save and except P.W3 none of the above witnesses has corroborated the same. P.W.7 though claimed that accused-appellant had taken a loan from the victim but has not specified the amount and admitted that he had no direct knowledge in the matter. P.W.1 even did not whisper about advancement of any loan by the deceased to the appellant. Even there was no evidence on record to show that the accused-appellant had any weapon with her at the relevant point of time rather it is evident from the record that it was the deceased who had the katari with him and by showing it he was threatening the accused-appellant for dire consequences unless she yield to his demand. Learned court below did not take into account the above aspect and was in error in arriving at the conclusion that appellant had motive in committing murder of the victim.
With regard to the issue relating to the absconsion of the accused- appellant from the house after the incident, it is a settled legal position that mere absconding by itself does not necessarily lead to a firm conclusion of guilt of mind unless corroborated from other circumstances. We find that the learned court below took into consideration the evidence of the younger brother of the victim, P.W.1, co-villager, P.W.9, the I.O., P.W.14, as also the confessional statements (Ext.4) of the accused-appellant to arrive at the conclusion that the appellant absconded after the incident of murder of the victim. On perusal of the evidences of the above witnesses as also the confessional statements (Ext.4) of the accused-appellant, we do not find any irregularity in the same.
The next issue which requires our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I or Part II, IPC? Once the elements mentioned in Exceptions to Section 300, IPC are not established, the offence is murder. In the event a case comes within the elements prescribed in Exceptions to Section 300, IPC, it is culpable homicide not amounting to murder. Exception 4 to Section 300 IPC reads as under:
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.-- It is immaterial in such cases which party offers the provocation or commit the first assault.
In the matter of Surider Kumar vs. Union Territory, Chandigarh, reported in (1989)2 Supreme Court Cases 217, the Hon'ble Supreme Court altered the conviction of the appellant under Section 302, IPC, to one under Section 304, Part-I IPC considering the nature of the injury on the shoulder, elbow and chest of the deceased with a knife in the heat of the moment consequent upon a sudden quarrel and unpremeditated in a fit of anger.
In the matter of Jagrup Singh vs. State of Haryana, reported in (1981) 3 SCC 616, the Hon'ble Supreme Court altered the conviction of the appellant under Section 302, IPC, to one under Section 304, Part-II, IPC considering the natural injury on the head of the deceased with a blunt side of gandhala in the heat of the moment consequent upon a sudden quarrel and without any intention to cause the death of the deceased.
In the case in our hand we find that though the appellant struck the victim with an Katari but we do not find any evidence on record that she had preplanned or had any intention to kill the victim and/or that she was armed with any weapon. On the other hand it is evident from the record that it was the deceased who had Katari with him and was threatening the appellant, a married lady having children, by showing Katari to yield to his demand, and in doing so when he fell down due to intoxication then the appellant at the spur of the moment struck him with that katari resulting in his death. It was not a preplanned cold blooded murder on the basis of long time conspiracy but it was in a fit of anger on sudden provocation. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellant under Section 302 of IPC. The learned Court below failed to consider at the time of passing the judgment that no evidence was brought on record to prove that there had been an intention to cause death and/or that it was a preplanned cold blooded murder on the basis of long time conspiracy. Attention of this Court has not been drawn by the learned counsel appearing for the State towards any material on record to take a different view. Therefore, the impugned judgment and the order of conviction and sentence are liable to be interfered with.
Accordingly, we allow this appeal to the extent that the conviction of the appellant under Section 302 is altered to one under Section 304, Part-I of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed upon the appellant and the default sentence awarded to her remain unaltered. The period of detention of the appellant undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428, Cr. P. C. This appeal is thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above.
Copy of this judgement along with the lower Court records be sent down to the trial court immediately by a Special Messenger of this Court for information and taking appropriate steps.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)