Calcutta High Court (Appellete Side)
Netai Sen @ Netaipada Sen & Ors vs The State Of West Bengal on 3 April, 2017
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 132 of 2011
Netai Sen @ Netaipada Sen & Ors.
Vs.
The State of West Bengal
For the appellants : Mr. Mainak Bakshi, Ld. Advocate
For the State : Mr. Shatarup Purkayasta, Ld. Advocate
Heard on : 14.02.2017, 15.02.2017, 21.02.2017
Judgment on: 03.04.2017
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellants assailing the judgment and order of conviction dated February 23, 2011 and sentence dated February 24, 2011 passed by the learned Additional Sessions Judge, 1st Court, Bankura in Special Case No. 5 of 1998. By virtue of impugned judgment appellants and one Sanatan Sen, since deceased, were convicted only for commissioning of the offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer imprisonment for life with fine of Rs. 5,000/- each in default to suffer simple imprisonment for a further period of 03 months each with a direction for set off as per provisions of 428 of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).
The prosecution case, in brief, is as follows:-
On February 25, 1992 in the morning while the victim was ploughing their land of plot No. 18 under Kuchaipal Mouza for planting Boro paddy and P.W.1 was sitting there on the 'ail' (ridge) (boundary of the land), then at about 8.30 a.m. all on a sudden appellants along with Sanatan Sen armed with axe, lathi, bow and arrows came there and attacked the victim. Appellant Netai Sen shot arrow towards the victim which struck below his left eye, appellants Baidyanath Sen and Sanantan Sen assaulted victim with lathi as a result he fell down on the ground. Appellants Shiba Sen and Baidyanath Sen then dragged the victim on the 'aile' (ridge) (boundary of the land). Appellant Shiba Sen then struck victim on the back portion of his head with an axe causing cut and bleeding injury therefrom. P.W.3 on hearing cries of P.W.1 came there and informed the villagers. Villagers then came there and took the victim to Gurpahar and therefrom to Raipur Hospital where he was declared dead. P.W.2, who had been to the Raipur PHC to see the victim on hearing about the incident of marpit/katakati and the admission of the victim there, scribed the complaint (Ext.1), as per request and statements of the wife of the victim (P.W.1). P.W.1 then submitted the said complaint at the Raipur P.S. On the basis of above written complaint, a Raipur P.S. Case No. 14/92 dated February 25, 1992 under Section 326/302/34 IPC was started against the appellants and accused Sanatan Sen by S.I. Ram Prasad Banerjee, the then officer-in-charge Raipur P.S. and himself took up investigation of the case. Thereafter, it was investigated by P.W.17 and finally by S.I. Asis Nandi, since deceased, and on completion of investigation charge sheet being No. 1/95 dated January 21, 1995 under Section 302/34 IPC was submitted against the appellants and Sanatan Sen.
Inquest over the dead body of the victim was held by P.W.19 on the same day i.e. on February 25, 1992 at Raipur PHC from 14.45 hrs. to 15.45 hrs. in presence of P.W.1, P.W.10 and one Saikat Kundu and cut injuries were detected below left eye and on the backside of head on the upper neck and swelling on the back of the victim and the name of the appellants and Sanatan Sen were described as assailants and the nature of the weapons used were also recorded therein.
On the same day i.e. on February 25, 1992, P.W.8 and P.W.9 took the dead body of the victim to Bankura morgue for postmortem examination and on February 26, 1992 postmortem examination was held by P.W.15 and during examination doctor found bruises, incised wounds and abrasions on the person of the victim and according to the doctor death of the victim was due to the effects of the injuries sustained by him which were ante-mortem and homicidal in nature.
On April 3, 1996 charge was framed under Section 302/34 IPC and on August 17, 1998 additional charge under Section 3(1)(V) of Schedule Caste and Schedule Tribe (P & A) Act, 1989 was framed against the appellants and Sanatan Sen and after they denied their involvement in the crime, trial commenced.
Prosecution examined 19 witnesses and also produced and proved the FIR, seizure lists, inquest report, PM report etc. and thereafter on completion of trial and after examination of the appellants as also Sanatan Sen under section 313 Cr.P.C. learned trial judge passed the impugned judgment.
Mr. Mainak Bakshi, learned advocate appearing for the appellants submitted that the impugned judgment, order or conviction and sentence cannot be sustained in law for the following reasons:-
i) There were material discrepancies with regard to the place of occurrence which gave rise to serious doubt regarding the veracity of the prosecution story.
ii) There was no independent eye witness to support the prosecution case and the evidence of P.W.1 was not trustworthy as neither P.W.3 who first came at the place of occurrence and saw the victim lying injured and reported the villager nor P.W.12 who came there along with others had supported her.
iii) FIR was ante-dated and was lodged after arrival of P.W.7, a police personnel and brother-in-law of P.W.1, with whom there was longstanding dispute with the appellants over landed properties and at his instance she falsely implicated the accused persons.
iv) There were contradictions relating to the description of the wearing apparel of the victim as according to P.W.1 and inquest report victim was wearing dhuti with red colour border but Mat. Ext. I and FSL report shows seizure and examination of a saree. There was also doubt with regard to the seizure of arrow reportedly used in the commission of the offence, as seizure list shows seizure of one bow and four arrows one of which bore blood stains from the house of the appellants though according to P.W.1 she pulled out the arrow from below the eye of her husband and thrown the same at the place of occurrence.
v) There was no evidence on record with regard to the proof of criminal act of the appellants in furtherance of their common leading towards the commission of murder of the victim by the appellants.
vi) The motive behind the commission of murder of the victim has not been proved beyond doubt by the prosecution.
Mr. Mainak Bakshi relied upon the decision in the matter of Raja Ram vs. State of Rajasthan reported in (2005)5 Supreme Court Cases 272, Syed Ibrahim vs. State of Andhara Pradesh reported in AIR 2006 Supreme Court 2908 and one unreported Judgement of this court dated August 11,2016 passed in CRA 840 of 2013 in the matter of Asraf Biswas vs. State of West Bengal with CRA 892 of 2013 in the matter of Jahiruddin Molla & Ors. vs. State of West Bengal.
Mr. Shatarup Purkayastha, learned advocate representing the State submitted that wife of the victim namely, P.W.1, who was all along with the victim is the prime eyewitness and the other witnesses examined by the prosecution are the post occurrence witnesses. According to Mr. Purkayastha, the evidence of P.W.1 remained unshaken and only because P.W.3, Sundari Hembram was declared hostile, the evidence of P.W.1 cannot be thrown away. According to Mr. Purkayastha, there was a land dispute between the parties and it was the reason behind the gruesome murder of the victim by the appellants who in a preplanned manner suddenly attacked him while he was ploughing his land of plot no.18 of Kuchaipal mouza under P.S. Raipur. He also submitted that if the evidence of eyewitness is believed then the motive becomes immaterial. According to Mr. Purkayastha, discrepancies as pointed by the learned Advocate for the appellants were not of material dimension which goes to the root of the case making the prosecution case doubtful. According the Mr. Purkayastha, case against the appellants was proved beyond doubt.
Mr. Shatarup Purkayasta, relied upon the decision in the matter of Subedar Tewari vs. State of U.P. and others reported in AIR 1989 SC
733. We have considered the submissions advanced by learned counsels appearing for the respective parties and given our thoughtful consideration to the evidence of prosecution witnesses and the materials on record for examining the propriety of the impugned judgment and order of conviction and sentence.
From the evidence of the P.Ws. on record together with the evidence of the doctor, P.W.15 and the P.M. report, Ext.7, it was crystal clear that the death of the victim was due to the effects of the injuries sustained by him which were ante-mortem and homicidal in nature. According to the doctor, injury no.1 namely one abrasion ¼'' x ¼'' placed below lateral cantos left eye might have been produce by an arrow provided the velocity of the arrow was low, injury no.8 namely one incised wound 2 ½'' x 3/4'' x bone placed obliquely in the scalp 1'' above and ½'' to the left of occipital protuberance might have been produced by moderately heavy sharp-cutting weapon like that of axe and was sufficient to cause death in ordinary course of nature while the other injuries namely abrasion 2'' x 1'' lateral aspect of right elbow joint, abrasion 2'' x 2'' back of right shoulder joint, abrasion 4'' x 3'' in the right side of back just to the right of 12 thoracic spine, abrasion 5'' x 3'' over blade of right scapula, parallel line of bruises 10'' x ½'' and defused bruise varying from 2'' 1'' to 3'' x 2'' of back of chest and abdomen found on the person of the victim might have been resulted from hard and blunt weapon like that of lathi. Interestingly he was not challenged by the defence on this score. Defence had also not disputed or denied the injuries found on the person of the victim by the doctor, P.W.15, on February 26, 1992 at the time of conducting post-mortem examination and/or the cause of his death. So, the question had arisen how victim sustained those injuries on his person and/or who caused those injuries? In this regard it was the specific allegations of the prosecution that the appellants along with accused Sanatan Sen being armed with lathi, axe, bow and arrows in furtherance of their common intention attacked the victim on his land at plot No. 18, under Kuchaipal Mouza, P.S. Raipur where he had been for planting 'Boro' paddy thereby causing injuries on his person resulting in his death. Defence had denied the above allegation of the prosecution and had taken the plea of false implication.
Now let us see how far the prosecution had been successful to bring home the charge against the appellant beyond all reasonable doubt before the learned court bellow.
Learned court below took into consideration the evidence of P.W.1,the only eyewitness, with the inquest report (Ext.9), post-mortem report (Ext.7) and the evidence adduced by PW 15 who prepared the post mortem report and also the evidence of other witnesses who came immediate after the occurrence including those of P.W.2,P.W.5, P.W.6, P.W.10 and P.W.14 to arrive at the conclusion that the appellants and Sanatan Sen, since deceased, in collusion with each other killed the victim by causing injuries on his person and thereby committed the offence punishable under Section 302/34 IPC.
With regard to the submissions of the learned advocate for the appellants that the place of occurrence was not proved beyond doubt, we find from the F.I.R., seizure list (Ext.4/1) as well as evidences of the PW.1, the eye witness, P.W.5, P.W.6, P.W.10 and P.W.14, post occurrence witnesses, that place of occurrence is the land of the victim situated at Kuchaipal mouza P.S. Raipur.
P.W.1 had specifically stated on oath that on the relevant date and time while her husband, the victim, was ploughing their land of plot No. 18 for cultivating 'Boro paddy' and she was sitting on the 'aile' of the plot (boundary, ridge of the plot) with meal then suddenly appellants and Sanatan Sen being armed with axe, lathi, bow and arrows attacked her husband causing cut and bleeding injuries on his person resulting in his death. She also affirmed the same during her cross-examination stating that on the date of incident her husband was ploughing that land. During cross- examination, a suggestion was put to her by the defence that she had illicit relation with Gosai Mandi of Masterpara during the lifetime of her husband and accordingly she in collusion with Gosai Mandi murdered her husband in the early morning and took the dead body of her husband to plot No.18, which she denied. Interestingly, not asingle cogent and reliable evidence was brought on record by the defence in support of the above allegation against P.W.1. So, from the trend of cross-examination, it was evident that defence had not disputed or denied the murder of the victim on the relevant date and/or the presence of dead body of the victim on plot No.18. P.W.1 was cross-examined at length but her statements-in-chief remained unshaken during cross-examination and nothing was brought on record to discredit her and as such there was no reason to discard her evidence.
P.W.5, though could not recollect the plot number but specifically stated that P.W.1 told him that on the relevant date and time when the victim was ploughing his land of Kuchaipal mouza accused persons assaulted her husband by arrow, lathi and axe on that land. During cross- examination also he specifically stated that since prior to the date of incident victim was ploughing the said land where he was ploughing on the date of incident.
P.W.6, a witness to the seizure of blood stained earth and controlled earth specifically stated that on February 25, 1992 at about 8 a.m. she heard from P.W.1 that while victim was ploughing his land of plot No. 18 of mouza Kuchaipal then at that time appellants came there and assaulted her husband with arrow, lathi and axe causing injuries on his person. She also stated that police came at the place of occurrence at plot No. 18 and seized blood stained earth in her presence by preparing a seizure list on which she signed (Ext.4). Surprisingly, she was not challenged by the defence that nothing was seized in her presence from the place of occurrence at plot no.18.
P.W.10, a post occurrence witness and the witness to the seizure of wearing apparel of the victim and the inquest, also corroborated P.W.1. According to her, in the morning of February 25, 1992 appellants and Sanatan Sen assaulted her brother-in-law, the victim, on the land of plot No. 18 of Mouza Kuchaipal and being assaulted he fell down on the ground and died. She then went to Raipur PHC and found the victim lying dead having marks of injury below his left eye caused by arrow, bleeding injury on his neck just below the back side of his head and swelling injuries on the back. Surprisingly, she was not challenged by the defence that no such incident took place on the land of plot No. 18 of Mouza Kuchaipal and/or that appellant were not responsible for the injuries on the person of the victim. She was merely challenged by the defence that on being instructed by her husband and the police officer she signed on the seizure list and deposed falsely to which she denied.
According to P.W.14, on February 25 at about 10 years ago victim was killed by sharp cutting weapons on his own land situated within Kuchaipal mouza where he had been with his wife. He also stated that after coming to know about the incident from P.W.3 he went to the place of occurrence and found P.W.5, P.W.12 and Mongal Murmu there. They then took the victim from his land to his house and from his house to the hospital. During cross-examination also he stated that he, P.W.5, P.W.12 and Mongal Murmu went to the place of occurrence at first and therefrom they took the victim to his house.
From the FSL report of Scientific Officer-cum-Assistant Chemical Examiner being No.1153 FSL/ B 759/92 dated April 7,1994, addressed to Sub-divisional Judicial Magistrate, Bankura as also the report of Assistant Serologist and Chemical Examiner to the Government of India being No.8172 dated March 9,1994,addressed to Director-cum-Sr.C.E., F.S.L., Government of West Bengal, it was evident that blood was detected on the seized earth besides other articles but it's origin could not be detected nor the blood group was ascertained due to disintegration. But failure to lead forensic evidence with regard to the origin of the blood or blood group by itself does not jeopardize the success of the prosecution case where there is other reliable evidence including the eye witness to fix the scene of occurrence.
Thus from the above, we find that the eye witness had given vivid and consistent account of the place of occurrence at their land of plot no.18 of Kuchaipal mouza P.S. Raipur which also found corroboration from other witnesses including the FSL report. The evidence of eye witness appears to be worthy of reliance to fix the scene of occurrence. In view of the above, the submission of the learned advocate for the appellant that the place of occurrence was not proved beyond reasonable doubt did not appear to be correct.
Therefore, the impugned judgment need not require our interference on the above ground.
In view of the distinguishable facts and circumstances involved in this case, the decisions of Syed Ibrahim (Supra) and Asraf Biswas (Supra) do not help the appellants.
With regard to the reliability on the evidence of solitary witness, it is a settled proposition of law of evidences that examination of any particular number of witnesses is not required for proving the prosecution case and reliance can be placed on the solitary witness, if the court comes to the conclusion that the said statement is true and correct version of the case of prosecution. Reference may be made to the decision of State of U.P. vs. Krishna Master reported in (2010) 12 SCC 324 and the relevant portion of the above decision is quoted below:-
"47. It is a well-known principle of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where the court finds that the testimony of the solitary witness is neither wholly reliable nor wholly unreliable, it may, in a given set of facts, seek corroboration, but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution."
Regarding the question of credibility of the evidence of interested witness, it was observed by the Hon'ble Apex Court in the matter of Sarwan Singh & Ors. vs. State of Punjab, reported in (1976) 4 SCC 369 that even though an eyewitness might have belong to the group of the deceased and that witness came from one particular group was sufficient to show the interested nature of evidence. But it was not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care and once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. The relevant portion of the above decision is quoted below:-
"10. . . . . Moreover, it is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts requires as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness."
(Emphasis supplied) In the matter of Alamgir vs. State (NCT, Delhi), reported in 2003 SCC (Cri) 165 it was also observed by the Hon'ble Court that reliability of a witness cannot be questioned on the ground that she is an interested witness. The test of creditworthiness ought to be the guiding factor. The relevant portion of the above decision is quoted below:-
"13. The circumstances noticed above, if read with the evidence of PW.6, Shamim Bano as to the date of departure of the accused with his wife Hazra @ Halima from Bombay to Delhi and the telephonic message after two days that Halima had died in a bus accident and that she had been cremated at a cremation ground in Nizamuddin - this piece of evidence, as noticed above, if read along with the circumstances noticed above, would form a chain without there being any snap. Strenuous submissions have been made as regards the admissibility of the Handwriting Expert's opinion as also a challenge thrown to the non-admissibility of the entire evidence of Shamim Bano, PW.6. This evidence of Shamim Bano has been challenged on two counts: on the first Shamim Bano, being the sister of Halima, was an interested witness and secondly, she did not say so in a statement before the police under Section 161 Criminal Procedure Code Interested witness by itself cannot possibly be a ground to reject the evidence on record. The test of creditworthiness or acceptability, in our view, ought to be the guiding factor and if so, question of raising and eye- brow on the reliability of witness being an interested witness would be futile - in the event the evidence is otherwise acceptable, there ought not to be any hindrance in the matter of prosecutor's success. The evidence must inspire confidence and in the event of unshaken credibility, there is no justifiable reason to reject the same. It is on this score the issue of interested witness thus stands negated, as raised by the appellant. The second limb pertains to the statement under Section 161 Criminal Procedure Code. Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 Criminal Procedure Code, but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence - the answer, in our view, cannot but be in the negative. In that view of the matter, the evidence of PW. 6 thus ought to be treated as creditworthy and acceptable and it is to be seen the effect of such an acceptablity."
(Emphasis supplied) In the instant case, we find from the evidence of P.W.1, the only eye witness, that she had fully corroborated the prosecution case. She is an illiterate village lady who deposed before the court after about 8 yrs. of the incident but she withstood the cross-examination with courage and boldness and her testimony could not be impeached by the defence. In such circumstances, there was no reason to reject the same. Moreover, FIR was lodged at the P.S. on the same day immediate after the death of the victim directly naming the appellants and Santanu Sen, since deceased. From the inquest report (Ext. 9) it was evident that the same was done in between 14.45 hrs. to 15.45 hrs. by P.W.19 in presence of P.W.1,P.W.10 and one Saikat Kundu and during inquest he also found injuries on the left side below the eye, on the back side of the head on the upper neck etc. on the person of the deceased. The names of the appellants and Sanatan Sen as assailants and the weapons used in the causing those injuries were also evident from the copy of the inquest report. However, fact remains that inquest report is not a substantive piece of evidence and contents thereof can not be treated as evidence. Moreover, the evidence of above eye witness also found corroboration from P.W.2, P.W.5, P.W.6, P.W.10 and P.W.14 who were the post occurrence witnesses, as well as the doctor, P.W.15. P.W.3 though denied that she went to the place of occurrence and informed the villagers about the incident but P.W.14 had specifically stated that he heard about the incident from P.W.3 and accordingly went to the place of occurrence and found P.W.5,P.W.12 and Mangal Murmu there and they brought the dead body of the victim to his house. It is true that P.W.3 and P.W.12 did not support the prosecution case for which they were declared hostile by the prosecution and Mangal Murmu and Saikat Kundu were not examined but that would not render the prosecution case doubtful and discard the unimpeachable evidence of the eye witness.
Therefore, the impugned judgment need not require our interference on the above ground.
In view of the distinguishable facts and circumstances involved in this case, the decisions of Raja Ram (Supra) does not help the appellants.
With regard to the submission of the learned Advocate for the appellants that the FIR was ante-dated and was lodged after arrival of Kalipada (P.W.7) and at his instance P.W.1 falsely implicated the accused persons, we find from the evidence of P.W.1 that on the same day of incident complaint was scribed as per her instruction at Raipur PHC by P.W.2 which she submitted at the Raipur P.S. on the very date. P.W.2 also affirmed the same. From the endorsement made on the written complaint (Ext.1), it was evident that the same was received at the Raipur P.S. on February 25, 1992 at 14.10 hrs and the Raipur P.S. case no. 14/1992 was started against the appellants and Sanatan Sen on that very date. From the formal FIR, seizure lists relating to seizure of blood stained and controlled earth (Ext.4), weapons of offence (Exts.2/3,3/3), blood stained saree (Ext.6), inquest report (Ext.9) it was evident that those were made on February 25,1992 in between 14.00 hrs. to 17.00 hrs. in connection with the above case and were forwarded to the Magistrate on February 26, 1992 and were placed before the Magistrate on that date. Copies of the dead body challan and the P.M. report (Ext.7) also show that the dead body was sent for P.M. examination on February 25, 1992 in connection with this case. From the evidence of P.W. 7, it was evident that before his arrival at the Raipur P.S. FIR was already lodged, arrest and seizures were made and the inquest was also done. In view of the above, the submission of the learned advocate for the appellants that complaint was written after arrival of Kalipada and at his instance P.W.1 falsely implicated the accused persons did not appear to be correct.
Therefore, the impugned judgment need not require our interference on the above ground.
With regard to the contradictions relating to the description of wearing apparel of the victim and seizure of bow and arrows used in the commission of the alleged offence, we find that those are natural as witnesses deposed after eight year of incident. 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. But discrepancy has to be distinguished from contradiction. While minor discrepancy or variance in evidence will not make the prosecution's case doubtful, contradiction in the statement of witness is fatal for the case. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247 and the relevant portion of the above decision is quoted below:-
"7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person."
(Emphasis supplied) In the instant case, as it was evident from the evidence on record that the original CD of this case was lost from the custody of P.W.17 and accordingly it was reconstructed with the permission of the court and superior officer. It also appears that S.I., R.P. Banerjee who initially investigated this case could not been examined as being retired from service and unable to move and S.I. A. Nandy who simply submitted the charge-sheet was also not examined being dead. P.W.17, who took charge from S.I., R.P. Banerjee, collected the duplicate inquest report and P.M. reports and also proved the seizure lists prepared by S.I. R.P. Banerjee. P.W.19 who accompanied S.I. R.P. Banerjee to the hospital and prepared the inquest report and seized the wearing apparel of the deceased proved the seizure list. 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 above police officers has caused any prejudice to the appellants. In such circumstances, non examination of the police officers will not render the conviction vulnerable. However, it was evident from the evidence of P.W.1, P.W.10 as also the inquest report (Ext.9) that on the day of incident victim was wearing dhuti with red border which was stained with blood. P.W.8 and P.W.9 who took the dead body for post-mortem examination as well as the dead body challan also corroborated the same. P.W.10,a witness to the inquest and seizure of the wearing apparel also stated that she saw victim was wearing dhuti with red border which was stained with blood but on being shown a white saree with red border (Mat. Ext.I) stated that victim was wearing the same at the relevant time. P.W.19 who seized the wearing apparel of the deceased identified the seizure list (Ext.6/1) being prepared by him. As Mat. Ext. I was identified as saree, it found such reflection in the FSL report and serological test report. From Ext.2/4, it was evident that one bow and four arrows one of which bore slight blood stains were seized from the house of the appellant Baidyanath Sen though according to P.W.2 she pulled out the arrow from the person of her husband and thrown the same at the place of occurrence. But such discrepancies were not of material dimension which goes to the root of the case making the prosecution case doubtful. Therefore, in view of the settled proposition of law the above discrepancies cannot affect the credibility of the evidence of the witnesses concerned, as pointed by the learned advocate for the appellants.
Accordingly, after considering the lower Court's record, we do not find any substance in the submissions made on behalf of the appellant that the case of the prosecution is full of contradictions and lacunae which goes to the root of the case. Therefore, the impugned judgment need not require our interference on the above ground.
With regard to the absence of motive, we do not find any substance in the contention of the learned advocate for the appellants in view of the ocular evidence. It also is well settled that when independent testimony is available to prove the murder charge against the accused persons the question of motive becomes more or less academic. Moreover, absence of motive does not disprove a murder charge.
Furthermore, in the matter of Subedar Tewari vs. State of U.P. and others reported in AIR 1989 SC 733 it had been held by the Hon'ble Apex Court that the evidence regarding existence of motive which operates in the mind of the assassin is very often than not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil thought in the mind of the assassin. A crime can take place even without premeditation or pre-planning in the context of a particular situation, on the spur of the moment.
With regard to other contention as to the proof of criminal act of the appellants in furtherance of their common intention, we also do not find any substance in view of the consistent eye witness account of entire incident. The cardinal principle of analysing the evidence to find out the answer to the question of a criminal act of the accused persons in furtherance of their common intention was laid down by 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, the Privy Council repeated and reiterated the same view. The above proposition of law was adopted by a Bench consisting of three Hon'ble Judges of the Supreme Court in Pandurang, Tukia and Bhillia vs. State of Hyderabad, reported in AIR 1955 SC 216. The above well settled proposition of law was repeated and reiterated time and again by the Apex Court.
The above principles of law with regard to the common intention has been elaborately discussed by us in the matter of Gopal Chandra Das & Ors. vs. The State of West Bengal reported in (2016) 4 CAL LT 306 (HC).
In the instant case, we find from the evidence of the eye witness that she had vividly narrated about participation of all the appellants in attacking the deceased. It was evident from the evidence of eye witness that these appellants, who belonged to the same family, being armed with deadly weapons like axe, lathi, bow and arrow attacked the victim indiscriminately assaulting him on his head, chest, back and other parts of his body inspite of his falling down on the ground thereby critically wounding him resulting in his death. The entire circumstances and the evidence on record lead to the conclusion that the appellants shared common intention and caused death of the victim with prearranged plan.
Therefore, our interference with the impugned judgment is not required on the above grounds.
Taking into consideration the entire facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed herein above.
However, we find from the record that with regard to the charge framed under Section 3(1)(v) of the Schedule Casts and Schedule Tribe (Prevention and Atrocities) Act, 1989, no finding was recorded by the Ld. Trial Judge as required under Section 354 of the Code of Criminal Procedure. But such omission to record any finding on that charge is no ground for unsettling the conviction recorded under Section 302/34 IPC taking into consideration the entire facts and circumstances and the materials on record which the prosecution has been able to prove beyond all reasonable doubt.
This case relates back to the incident occurred in the year 1992. The impugned judgment was passed in the year 2011. Therefore, considering the age of the case and also considering that omission to record finding on the charge framed under Section 3(1)(v) of the Schedule Casts and Schedule Tribe (Prevention and Atrocities) Act, 1989 will have no bearing and effect on the conviction recorded for the offence under Section 302/34 IPC, we do not think it prudent to remand back the case to the Trial Court for recording finding on the said charge. Considering the peculiar facts and circumstances of the instant case, we are of the view that the omission to record a finding on the charge framed under Section 3(1)(v) of the Schedule Casts and Schedule Tribe (Prevention and Atrocities) Act, 1989 deemed to an implied acquittal from the said charge.
Therefore considering the entire facts and circumstances and the discussions made hereinabove, we record the finding of acquittal of the appellants from the charge under Section 3(1)(v) of the Schedule Casts and Schedule Tribe (Prevention and Atrocities) Act, 1989. In view of the above the impugned order passed by the Ld. Trial Judge is modified to that effect.
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellants with certain modification as indicated herein above.
Copy of this judgement along with the lower court records be sent down to the trial court immediately for information and taking necessary action.
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.)