Calcutta High Court (Appellete Side)
Kanta Mudi & Ors vs The State Of West Bengal on 26 August, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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 No. 526 of 2006
Kanta Mudi & Ors.
Versus
The State of West Bengal
For the appellants : Mr. Mainak Bakshi
For the State : Mr. Ranabir Roy Chowdhury
Heard on : 01/07/2016, 25/7/2016, 29/7/2016, 2/8/2016 and 3/8/2016
Judgment on: 26/08/2016
Debasish Kar Gupta , J. :
This appeal is directed against conviction of the appellants for commission of offence punishable under Sections 302/448/34 of Indian Penal code (hereinafter referred to as the I.P.C.) and sentence to suffer imprisonment for life for commission of offence punishable under Section 302 0f the I.P.C. and to pay a fine of Rs.2000/- each in default to suffer further simple imprisonment for six months and to pay 50% of the aforesaid fine, if realised, to the widow of the victim and sentence to suffer simple imprisonment for six months for commission of offence punishable under Section 448 of the I.P.C. as also further sentence of the appellant no.1 to suffer simple imprisonment for six months for commission of offence punishable under Section 323 of the I.P.C. with the direction of running the aforesaid sentences of the appellants concurrently, passed by the Additional Sessions Judge, Fast Track Court No.2, Purulia in Sessions Trial No.6 of 2004 arising out of the Sessions Case No.149 of 2001.
According to the prosecution case, on July 10, 2000 at about 00.30 hours one Chkradhar Mudi (deceased) of Village-Banbahal, Police Station- Purulia (Muffasil), District-Purulia, and his son (PW 1) were sleeping on separate cots under tiled shed beside "Khamar" in their dwelling house. Suddenly, the appellants as also Yudhisthir Mudi (since deceased), who were the residents of the adjacent house, came to the aforesaid dwelling house of the victim being armed with rod, spade and tangy. Appellant Srikanta Mudi @ Kanta Mudi assaulted PW 1 on his left cheek with the blunt side of a tangy. He fell down from the cot. The above appellant along with other appellants and Yudhisthir Mudi (since deceased) started assaulting Chkradhar Mudi (deceased). Lying on the ground the PW 1 observed that at one point of time the voice of his father (deceased) stopped. Then the appellants and Yudhisthir Mudi (since deceased) entered into the rooms of their dwelling house where the other family members i.e. PW 5, PW 6, PW 7 and PW 8 were sleeping. They also assaulted the daughter of the deceased (P.W. 5). Villagers came on the call of the PW 1. The appellants and aforesaid Yudhisthir Mudi fled away after ransacking the food grains, papers and documents of their house. The utensils and clothing were also stolen by them.
PW 1 went to the Purulia Police Station with PW 2 and lodged a written complaint there on the same day at about 03.45 hours. Formal FIR bearing Purulia Sadar P.S. Case No.85 of 2000 dated July 10, 2000 was drawn at 03.45 hours on the basis of the G.D. Entry No.353 dated July 10, 2000. Police came to the place of occurrence at about 04.00 hours on the above day. The PW 18 (1st I.O.) held inquest examination on the dead body of the aforesaid deceased person and prepared inquest report on July 10, 2000 at 10.30 hours. Post mortem examination on the dead body of the deceased was held on July 10, 2000 at 13.50 hours by the PW 13 at the Purulia Sadar Hospital. According to post mortem report prepared by the PW 13, the cause of death of the deceased was due to sustaining of head injury which was homicidal in nature.
On June 21, 2002 charge sheet was filed by PW 16 (2nd I.O.) against the appellants. Necessary to mention that the accused Yudhisthir Mudi breathed his last during pendency of investigation of the matter. On January 31, 2004 charge was framed against the appellants for commission of offence punishable under Sections 302/34/448/427/379 of the I.P.C. in addition to that under Section 323 I.P.C. against appellant no.1. Eighteen (18) prosecution witnesses were examined. The statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.). After considering the evidence on record, both oral and documentary, the impugned judgment was passed.
It is submitted by Mr. Mainak Bakshi, learned Advocate appearing on behalf of the appellants that there was inordinate delay of four (4) days in forwarding the FIR to the Court of learned Sub Divisional Judicial Magistrate, Purulia. According to him, the aforesaid delay should have been taken into consideration by the Learned Court bellow at the outset in order to rule out the possibility of false implication of the appellants in the case. It is also submitted by Mr. Bakshi that there was contradiction with regard to the nature of weapon of offence which caused death of the deceased in view of the weapon of offence mentioned in the FIR, the evidence of the eyewitness PW 1 and the injuries mentioned in the post mortem report respectively. It is submitted by him that the assailant of the deceased person could hardly be identified in view of paucity of light at the place of occurrence. According to Mr. Bakshi, there were further contradictions in the evidence of prosecution witnesses of material dimension touching at the root of the prosecution case. It is also submitted by Mr. Bakshi that the common intention of the appellants in furtherance to their act of commission of offence under reference was not proved beyond all reasonable doubts.
Reliance is placed by Mr. Bakshi on the decisions of Ravulappalli Kondaiah & Ors. vs. State of Andhra Pradesh, reported in AIR 1975 SC 216, Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), reported in (2005) 5 SCC 258, Raja Ram vs. State of Rajasthan, reported in (2005) 5 SCC 272, State of Madhya Pradesh vs. Ghudan, reported in AIR 2004 SC 797, Mahbub Shah vs. Emperor, reported in (1945) 47 PC 118, Pandurang Tukia and Bhillia vs. The State of Hyderabad, reported in AIR 1955 216, Kartarey & Ors. vs. State of U.P., reported in AIR 1976 SC 76 and Ishwar Singh vs. The State of U.P., reported in (1976) 4 SCC 355 in support of his above submissions.
It is submitted by Mr. Ranabir Roy Chowdhury, learned State Advocate, appearing on behalf of the respondents that taking into consideration the time and place of occurrence from the FIR, the contents of inquest report and the information available from the post mortem report regarding the time of dispatch of dead body of the deceased person, arrival at the dead-house and time of examination with reference to the documents relating to FIR and inquest examination, the delay in forwarding the FIR to the Court of the learned Magistrate concerned does not help the appellant to cast any doubt with regard to the time, place and the manner of commission of offence under reference. According to him, the commission of offence was proved from the evidence of eyewitness PW 1. The same was corroborated from the other eyewitness, namely PW 11. Therefore, the minor discrepancies with regard to the nature of weapon of offence used by the appellants for commission of offence does not vitiate the trial.
It is further submitted by Mr. Roy Chowdhury that the evidence of the aforesaid eyewitnesses were corroborated by the post occurrence witnesses, namely, PW 4, PW 5, PW 6 and PW 7. According to Mr. Roy Chowdhury, the commission of offence occurred on a moonlight night at an open place with a shade only. The assailants were known persons to the eyewitnesses, i.e. PW 1 and PW 11.Therefore, there was no difficulty in identifying the assailant of the deceased person by the eyewitnesses namely, PW 1 and PW 11. It is further submitted by Mr. Roy Chowdhury that though any sharp cutting weapon had not been recovered in the instant case, injuries except which was mentioned in serial no.3 in the post mortem report of the autopsy surgeon (PW13) had not been sustained from sharp cutting weapon. According to Mr. Roy Chowdhury, the common intention of the appellants in furtherance to their act in commission of offence under reference was proved in the trial. According to him, the impugned order of conviction of the appellant does not require interference in this appeal.
Reliance is place by Mr. Roy Chowdhury on the decisions of Mahesh Janardhan Gonnade vs. State of Maharashtra, reported in 2008 (13) SCC 271, State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand, reported in 2004 (7) SCC 659, Naim & Anr. vs. State of Uttarakhand, reported in 2015 (1) SCC 397, Shyamal Ghosh vs. Sate of West Bengal, reported in 2012 (7) SCC 646 and Nathuni Yadav vs. State of Bihar, reported in 1998 (9) SCC 238 in support of his above submissions.
Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances on the basis of the evidence on record we find that it was surfaced from the evidence of eyewitness (PW 1) that on July 10, 2000 at about 00.30 hours the deceased and his son (PW 1) were sleeping on separate cots under tile shade beside "Khamar" in his dwelling house. The PW 1 witnessed the murder of the deceased at that point of time. In the formal FIR No.85 of 2000, which was drawn on the basis of the written complaint of the PW 1 (son of the deceased), the same time and place was mentioned. According to the inquest report, which was prepared by PW 18 (I.O.) on the same day, the body of the deceased was found lying on the floor under the aforesaid tile shade beside "Khamar" in his dwelling house. The dead body was forwarded by the PW 18 (I.O.) to Purulia Sadar Hospital Morgue for holding post mortem examination with reference to the aforesaid FIR and the aforesaid inquest report. From the post mortem report, which was conducted on the same day at 13.50 hours i.e. after twelve and half hours of murder of the deceased, the rigor mortis was found present in upper part of the dead body. Therefore, the prosecution was able to bring home the case of murder of the deceased so far as the place and time of occurrence of the above murder were concerned.
Regarding the first contention of the appellants that there was delay in forwarding the FIR with the intention of false implication of the appellants introducing a coloured version or exaggerated story, we would like to refer to the observations made by the Apex Court in Meharaj Singh vs. State of U.P., reported in (1994) 5 SCC 188 for applying the external checks as discussed therein. The relevant portion of the above decision is quoted below:-
"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
(Emphasis supplied) The above settled principles of law was approved by a three Judges Bench of the Hon'ble Supreme Court in Thanedar Singh vs. State of M.P., reported in (2002) 1 SCC 487.
In the instant case, we find that according to the prosecution case, the murder of the deceased took place on July 10, 2000 at 00.30 hours. The written complaint was submitted in Purulia Sadar Police Station on the same day at 03.45 hours. The names of the appellants and Yudhisthir Mudi (since deceased) were available in the above FIR. Immediately, the formal FIR No.85 of 2000 was drawn on the same day on the basis of G.D. Entry No.353. PW 18 (I.O.) held prepared inquest report of dead body of the deceased at 10.30 hours on the same day. The dead body was forwarded to the Purulia Sadar Hospital Morgue alongwith the above inquest report and with reference to the FIR No.85 dated July 10, 2000. Therefore, in consideration of the aforesaid time factors, we are of the opinion that the aforesaid contention of the appellants does not require further consideration by us.
Regarding the next contention of the appellants as to the doubt of death of the deceased as a consequence of assaulting him with the weapon of offence, we find from the written complaint of the PW 1 that the assailants were armed with rod, spade and tangy. According to his evidence, he was assaulted by one of the appellants namely, Sri Kanto Mudi with the blunt side of a tangy. He fell down from the cot. Then the appellants as also Yudhisthir Mudi (since deceased) started assaulting the deceased with their weapons. According to the inquest report, the injuries appeared to have been inflicted with the help of blunt substance. Save and except the third item of injuries mentioned by the autopsy surgeon (PW 13) in his report, all other injuries appeared to have been inflicted by the blunt substance. Therefore, in absence of recovery of a particular weapon of offence claimed by the prosecution to be used by the appellants for commission of offence, if any, cannot vitiate the trial.
In view of the facts and circumstances of this case the principle of law laid down by the Hon'ble Supreme Court in Kartarey & Ors. (supra) and Ishwar Singh (supra) do not help the appellants.
The next contention of the appellant is the doubt cast in respect of identification of the appellants in the darkness of night by the PW 1. The settled proposition of law in this regard has already been discussed by us in details in Ram Chandra Mondal @ Ram Mondal & Anr. vs. The State of West Bengal, reported in (2016) 3 CAL LT 73 (HC) and the relevant portion of the above decision is quoted below:-
"22. In analysing the evidence in a criminal trial the application of settled proposition of law always depends upon the facts and circumstances involved in a particular case. Slightest variation in the facts and circumstances changes the analysis of evidence of eyewitnesses in case of recognizing accused person/persons in the night. In the matter of Nathuni Yadav & Ors. vs. State of Bihar & Anr., reported in (1998) 9 SCC 238, the Hon'ble Supreme Court observed that in ascertaining whether identification of the assailants by the eyewitnesses in a night when there was no moonlight, the proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. In doing so, the Hon'ble Supreme Court further observed that over and above the above factors, the Court must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. The relevant portion of the above decision is quoted below:-
"9. We have considered the said contention from all its angles. Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strangers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. . . ."
In Dalbir Singh vs. State of Haryana, reported in (2008) 11 SCC 425, it was observed by the Hon'ble Supreme Court that it would be possible for a witness to identify an assailant in insufficient light from his voice, gait, features, etc., with whom he was fairly acquainted or was in intimate terms. The relevant portion of the above decision is quoted below:-
"11. In Anwar Hussain v. State of U.P. it was observed that even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gait, features, etc. Therefore, there is nothing to discard the evidence of PW 8 so far as his claim to have recognised the appellant is concerned."
In the instant case, the appellants were neighbors of the deceased. They were well-known to the members of the family of the deceased. Needless to say that the members of the family of the deceased were well- acquainted with the physiognomy of each one of the appellants. The place of occurrence was a tile shaded open place beside "Khamar" in the dwelling house of the deceased. More so, according to the evidence of PW 6, the commission of offence took place on a moonlight night. In view of the above, the impugned judgment does not require our interference on the above ground.
The next contention of the appellants is the discrepancies/contradictions in the evidence of prosecution witnesses. It has been discussed by the Hon'ble Supreme Court time and again that a criminal trial is not like a fairy tale. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its instinct worth and the animus of witnesses. Finally, every case in the final analysis would have to depend upon its own facts and circumstances. Reference may be made to the decision of State of Punjab vs. Jagir Singh, Baljit Singh and Karam Singh, reported in (1974) 3 SCC 277 and the relevant portions of the above decision is quoted below:-
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
(Emphasis supplied) The above proposition of law has been repeated and reiterated in the decisions of Mitter Sen vs. state of U.P., reported in (1976) 1 SCC 723, State of U.P. vs. M.K. Antony, reported in (1985) 1 SCC 505, Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525.
It has also been observed by the Apex Court in the matter of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247 that minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of the context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
While examining the decision making process of the learned trial Court in the instant case, it has already been observed hereinabove that the commission of offence occurred on a moonlight night at an open place having a tile shade only, the assailants were known persons to the eyewitnesses namely PW 1 and PW 11. The evidence of PW 1 was fully corroborated by the evidence of PW 11. While PW 1 sleeping in a separate cot at the place of occurrence, the PW 11 was laying on his bed inside their residential house. He was not sleeping. He came out of the house immediately after hearing the shouting of his father. He witnessed the killing of his father by the appellants. He fled away. The PW 2 was guarding fishes at Bamon Bandh nearby. After being informed by PW 1, the aforesaid PW 2 came to the place of occurrence. The deceased expired in the meantime and the appellants fled away. They found PW 4, PW 5, PW 6 and PW 7, who were the other family members of the deceased. They came out of the house of the deceased hearing the hue and cry. From the evidence of the aforesaid post occurrence witnesses, we find corroboration of the post occurrence series of events as stated by PW 1. Therefore, we find no substance in the above contention of the appellants that the physical assault of PW 1 by the appellants was not proved beyond reasonable doubt or that the claim of the PW 1 of informing others could not be accepted since he had not raised his voice witnessing the commission of murder of his father. Those cannot be considered as contradictions of material dimension touching the root of the prosecution case.
In the matter of Ravulappalli Kondaiah & Ors. (Supra), the credibility of interested eyewitnesses having enmity with the accused persons were considered by the Apex Court in the light of the facts and circumstances involved in the above case. But in view of the distinguishable facts and circumstances involved in the instant case, the above decision has no manner of application. Similarly, the ratio laid down in the matter of Ghudan (supra) to extend the benefit of omission on the part of the prosecution witnesses was given to the accused person in the light of the facts and circumstances of that case. Therefore, in view of the distinguishable facts and circumstances involved in that case the above decision does not help the appellants. In the matters of Mukhtiar Ahmed Ansari (supra) and Raja Ram (Supra), the credibility of the evidence and the benefit arising out of the evidence of hostile witness was under consideration as discussed hereinabove. The commission of offence by the appellants was proved in the instant case on the basis of evidence of the eyewitnesses as also the corroboration of the same by the documentary evidence. Therefore, there was not scope for the appellants to get any relief arising out of the ratio laid down in the aforesaid two decisions.
So far as the next contention of the appellants regarding their common intention in furtherance to their action in commission of offence was concerned, we would like to refer to our decision in Ram Chandra Mondal (Supra). The settled proposition of law was discussed by us elaborately in the light of the decision of Privy Council in Barendra Kumar Ghosh vs. Emperor, reported in AIR 1915 PC 1, in Mahabub Shah vs. Emperor, reported in AIR (32) 1945 PC 118 and the observation of the Hon'ble Supreme Court made in Pandurang, Tukia and Bhillia vs. State of Hyderabad, reported in AIR 1955 SC 216 and Joginder Singh vs. State of Haryana, reported in 1995 SCC (Cri) 178.
According to the settled principles of law, the common intention within the meaning of section implied a prearranged plan, and to convict accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. It is difficult if not impossible to procure direct evidence to prove the intention of an individuals, in most cases it has to be inferred from his act or conduct or other relevant circumstance of the case.
In the instant case, it has been proved on the basis of the ocular evidence of eyewitnesses, namely, PW 1 and PW 11 as also the evidences of post occurrence witnesses, namely, PW 4, PW 5, PW 6 and PW 7. According to the above evidence, the appellants came to the place of occurrence at late night at about 00.30 hours in a group. They assaulted the deceased with different types of weapons (both blunt surface and sharp cutting). There cannot be any other intention of any of the appellants to arrive at the place of occurrence at late night. Therefore, the only intention of each and every appellant which could be inferred from their act or conduct in the facts and circumstances of the instance case leads to a pre-arranged plan to conduct murder of the deceased.
We have considered the argument advanced on behalf of the appellants on the issue of pre-arranged plan in furtherance to their action in commissioning of offence on the basis of the settled principle of law depending on two decisions of the Privy Council as also a number of decisions of the Hon'ble Supreme Court including those of Mahabub Shah (supra) and Pandurang (supra). Therefore, we do not find any substance in the submissions made on behalf of the appellants that the decision making process of the learned trial Judge was erroneous in the light of the decisions of Mahabub Shah (supra) or Pandurang (supra).
The appeal is, therefore, dismissed.
Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)