Calcutta High Court (Appellete Side)
Uttam Das @ Jhana Das vs The State Of West Bengal on 16 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. 720 of 2005
Uttam Das @ Jhana Das
Versus
The State of West Bengal
For the appellant : Mr. Partha Sarathi Bhattacharya
Amicus Curiae : Mr. Avishek Sinha
For the State : Mr. Ranabir Roy Chowdhury,
Mr. Arnab Chatterjee
Heard on : 12/07/2016, 14/7/2016, 15/7/2016 and 18/7/2016
Judgment on: 16/08/2016
Debasish Kar Gupta , J. :
This appeal is directed against conviction of the appellant for commission of offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for a further period of six months passed by the Additional Sessions Judge, Kandi, District-Murshidibad in Sessions Trial No.4 of April, 2005 arising out of Sessions Serial No.20 of 2005 on August 20, 2005.
According to the prosecution case, on July 23, 2001 in the morning one Gaya Das (the deceased), wife of Banneswar Das of Bodpur, Police Station-Bharatpur, District-Murshidabad, after sweeping the courtyard of the residence was cleaning the utensils. At that point of time her two sons were present there. She was taken by her brother-in-law (the appellant) to their agricultural land. After some time, when the aforesaid two sons noticed that their mother (the deceased) was not returning back, the younger son (PW 14) proceeded towards their agricultural land. He found that his uncle (the appellant) was assaulting his mother indiscriminately with a sharp cutting weapon "henso". The PW 14 rushed to the field where his father was working. After getting the above information his father (PW 4) arrived at the place of occurrence and found the dead body of the victim.
According to prosecution case, there was an extra marital relationship in between the deceased and the appellant. Subsequently, a further extra marital relationship was developed in between the deceased and an another person of the same village which was the cause of brutal killing of the deceased by the appellant.
A written complaint was lodged to the Bharatpur Police Station by PW 9 on the same day. After recording the above complaint in the general diary of the above police station under Entry No.869 at 15.05 hours, formal FIR bearing Bharatpur P.S. Case No.34 of 2001 was initiated against the appellant for commission of offence punishable under Section 302 of the I.P.C. Inquest examination was conducted by PW 13 (I.O.) on the dead body of the deceased at 15.30 hours on the aforesaid date after the dead body of the victim was identified by her husband (PW 4) as also her brother (PW 9). The appellant was arrested on August 8, 2001. After completion of investigation charge sheet was filed against the appellant for commission of offence punishable under Section 302 of the I.P.C. by the PW 15 (Second I.O.).
Charge was framed against the appellant on April 11, 2005 for commission of offence punishable under Section 302 of the I.P.C. Fifteen (15) prosecution witnesses were examined in the trial. The statement of the appellant was recorded under the provisions of Section 313 of the Cr.P.C. on April 25, 2005. After taking into consideration the evidence on record the impugned judgment was passed.
It is submitted by Mr. Avishek Sinha, learned Amicus Curiae engaged by us that the trial against the appellant was conducted on the basis of the defective charge framed against the appellant. The claim of the prosecution case of "last seen together" was not proved beyond doubt. The recovery of weapon of offence was not proved. The basis of the conviction of the appellant was the ocular evidence of PW 14, a minor witness. The credibility of his evidence was in doubt. The commission of offence by the appellant was not proved beyond all reasonable doubts due to material omission in the evidence of PW 14 and the possibility of tutoring him by his relations from his maternal side.
It is further submitted by Mr. Sinha that the relevant questions were not asked to the appellant at the time of recording his statement under Section 313 of the Cr.P.C. causing prejudice to him. According to Mr. Sinha, the impugned judgment cannot be sustained in law in view of the above infirmities in the decision making process of the learned trial Court.
Reliance is placed by Mr. Sinha on the decisions of Radhey Shyam vs. State of Rajasthan, reported in (2014) 5 SCC 389, Niranjan Panja vs. State of West Bengal, reported in (2010) 6 SCC 525, Varun Chaudhary vs. State of Rajasthan, reported in (2011) 12 SCC 545, Anil Kumar Choulia, Santosh Kumar Choulia & Parul Bala Choulia vs. State of West Bengal, reported in 2003 (3) CHN 276 and Lallu Manjhi & Anr. vs. State of Jharkhand, reported in (2003) 2 SCC 401 in support of his above submissions.
Repeating and reiterating the aforesaid submissions it is submitted by Mr. Partha Sarathi Bhattacharya, learned Advocate appearing on behalf of he appellant that the conviction of the appellant was based on the ocular evidence of the solitary eyewitness PW 14 but due to some material contradictions and in absence of corroboration of his evidence with that of other prosecution witnesses the commission of offence under reference was not proved beyond doubt. According to him, relevant questions in connection with the injuries sustained by the deceased and the absence of opinion of the doctor with regard to cause of her death connecting the weapon of offence with such date were not put to the appellant.
Mr. Bhattacharya relied upon the decisions of Sanatan Naskar & Anr. vs. State of West Bengal, reported in (2010) 8 SCC 249, Attar Singh vs. State of Maharashtra, reported in 2013 (4) AICLR 56, State of West Bengal vs. Laxmikanta Karmakar, reported in (2016) 2 C Cr LR (Cal) 236, and State of West Bengal vs. Babu Molla, reported in (2016) 2 C Cr LR (Cal) 414 in support of his above submissions.
It is submitted by Mr. Ranabir Roy Chowdhury, learned State Advocate at the very outset that assuming that the charge framed against the appellant was erroneous, it was neither misleading nor causing any prejudice to the appellant. It is further submitted by him that the extra marital relationship of the deceased with the appellant, which had been surfaced from preliminary inquiry recorded in the inquest report, was proved from the oral evidence of the prosecution witnesses. According to him, the above fact was also corroborated taking into consideration the acceptable part of oral evidence of those prosecution witnesses who were declared hostile. According to him, the evidence of PW 14 was proved to be credible particularly in view of his deposition in course of cross-examination. The injuries sustained by the deceased were proved to be arising out of assault by sharp cutting weapon in view of the post mortem report of PW 11. It is further submitted by him that the material questions in connection with the commission of offence by the appellant was put to him in question no.6. According to him, no relief can be granted to the appellant on the ground of failure to put entire prosecution evidence to the appellant while recording his statements under Section 313 of the Cr.P.C. because those incriminating facts and circumstances were put to the appellant which were adverse to him.
Reliance is placed by Mr. Roy Chowdhury on the decisions of Santosh Kumar vs. State of Jammu & Kashmir, reported in 2011 (3) SCC (Cri) 657, Shishan vs. State of Rajasthan, reported in 2000 (10) SCC 249, Rameshbhai Mohanbhai Koli & Ors. vs. State of Gujarat, reported in 2011 (11) SCC 111 and Nar Singh vs. State of Haryana, reported in 2015 (1) SCC 496 in support of his above submissions.
We have heard the learned Counsels appearing for the parties at length and great deal. We have also considered the documents forming part of the record.
The fact that the deceased had died homicidal death which was antemortem in nature was not in dispute. The aforesaid fact was also not disputed by the appellant before us or the trial Court. From the evidence of one eyewitness (PW 14), the younger son of the deceased who was 5 years old at the time of murder of his mother, and that of Dr. Nandadulal Biswas (PW
11), who had conducted autopsy on the dead of the deceased person and upon consideration of the post mortem notes, we find not even an iota of doubt that the deceased person had died homicidal death on account of sustaining at least 14 deep cut injuries on her body described as "multiple chop-wounds" in the post mortem report.
The time of occurrence was also not in dispute. It was an admitted fact that the murder of the deceased took place on July 23, 2001 in the morning. However, according to the appellant, he was not the assailant and, therefore, he deserved acquittal from the charge framed against him.
Before examining the propriety of decision making process of the learned trial Judge upon appreciation of the evidence of witnesses examined in course of trial, it would be profitable to record to the criteria for appreciation of oral evidence. In State of U.P. vs. Anil Singh, reported in 1988 (Supp) SCC 686 that it would not be proper to reject a case of the prosecution for want of corroboration by independent witnesses if the case made out was otherwise true and acceptable. It was further observed by the Hon'ble Supreme Court in the above case that there was a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. According to the Apex Court, that could not be a ground to throw the case overboard in the event there was a ring of truth in the main. It was observed that the duty of the Court to cull out the nuggets of truth from the evidence unless there was a reason to believe that inconsistencies or falsehood were so glaring as utterly to destroy confidence in the witnesses. Thereafter, a reminder was given by the Apex Court to a learned Judge presiding over a criminal trial that a Judge does not preside over a criminal trial merely to see that no innocent person is punished but the learned Judge also presides to see that a guilty man does not escape. One is as important as the other. The relevant portion of the above decision is quoted below:-
"17. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is an important as the other. Both are public duties which the judge has to perform."
In course of appreciation of evidence we find that the evidence of PW 14 was the sheet anchor for the trial Court to convict the appellant as observed hereinabove, PW 14 was a child witness being the younger son of 5 years age of the deceased.
In the decision of State of U.P. vs. Krishna Master, reported in (2010) 12 SCC 324, the Hon'ble Supreme Court in course of examining the credibility of child/young witness held that it would be doing injustice to a child witness to say that it would be inconceivable for him to recapitulate facts in his memory witnessed by him long ago. Once he could be found possessing a sharp memory. The Hon'ble Supreme Court further added that a child/young witness was not likely to forget the incident of murder of his father, mother, brothers, etc. which he had witnessed, for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the period of gap between the incident and recording of his evidence. The relevant portion of the above decision is quoted below:-
"36. . . . . There is no principle of law known to this Court that it is inconceibable that a child of tender age would not be able to recapitulate facats in his memory witnessed by him long ago. This witness has claimed on oath before the Court that he had seen five members of his family being ruthlessly killed by the respodents by firing funshots. When a child of tender age witnesses gruesome murder of his father, mother, brothers, etc. he is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time, notwithstanding the gap of about ten years between the incident and recording of his evidence.
37. This Court is of the firm opinion that it would be doing injustice to a child witness possessing a sharp memory to say that it is inconceivable for him to recaapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future. . . . ."
In Shishan vs. State of Rajasthan, reported in 2000 (10) SCC 249, the Hon'ble Supreme Court solely relied upon the evidence of a child witness in a case of commission of offence punishable under Section 302 of the I.P.C. taking into consideration the maturity of that witness, the corroboration of his evidence with the medical evidence, so far as the cause of death was concerned. The Apex Court was not inclined to interfere with the conviction of the appellant. The relevant portion of the above decision is quoted below:-
"In this Court, the sole argument advanced by the learned counsel for the appellant is that PW 4, being a child witness, the courts below could not have relied upon the same to base the conviction of the offence under Section 302. We have been taken through the evidence of the said PW 4 and we do not find any substance in the aforesaid arguments. PW 4 has given a picture of the entire occurrence and the fact that PW 4 came and immediately narrated the same to his father and the father thereafter went to the place of occurrence and brought his wife to his house and then gave the report at the police station and the said report fully depicts the entire incident, indicates that the child PW 4 has truthfully stated as to what he saw. So far as the capacity of the child to depose is concerned, not only the learned Sessions Judge before recording his evidence took the precaution of examining and finding out his capacity to depose, but the very deposition itself on a scrutiny would indicate that though he was 11 years old, yet had sufficient maturity to depose as to what he saw and we see nothing brought out in the cross-examination to have an iota of doubt about his capacity to depose. While placing the evidence of PW 4 nothing has been brought to our notice in the cross- examination to impeach his testimony. In that view of the matter, we see no infirmity in that evidence being taken as the basis of conviction both by the learned Sessions Judge as well as by the High Court. As stated earlier, the fact that the medical evidence also indicates two injuries, one on the head and the other on the neck corroborates the oral evidence of PW 4. In this view of the matter, we do not find any merit in this appeal."
On a mere perusal of the evidence of PW 14 in course of his cross- examination, apart from the observations made at the very out set with regard to his capability of answering questions reasonably, in course of cross-examination we find that he could remember that he had been reading Class-II at the material point of time. He used to read "Kisholaya", "Sahaj Path", "Ganit", and one "English Book" as a student of village school. There were 29 students in his school. There were three teachers in his school. He could even remember the name of one of those teachers namely, "Prakash Sir".
Keeping in mind the sharpness of memory he was possessing, we would like to consider his evidence. According to the evidence of the above eyewitness PW 14, he was eating food in the morning along with his elder brother which had been served by his mother. At that point of time the appellant, his uncle, took her to their land where there was bush of "Patal". After some time, he noticed that his mother was not returning back. He proceeded towards the bush. As soon as he had reached the place of occurrence, he noticed that his "kaka", the appellant, was chopping his mother with "henso". He became frightened and rushed to the field where his father was working. He informed his father about the incident. Immediately, the above witness alongwith his father went to the place of occurrence. They found the dead body of his mother there. According to his evidence, the appellant had left the place of occurrence before their arrival.
The injuries found on the body of the deceased in surothal examination leads to the conclusion of acceptability of the statements made by the aforesaid eyewitness PW 14. The PW 1, PW 2, PW 4, PW 6 and PW 9 were the witnesses of the above surathal report. Similarly, as observed hereinabove, it was revealed from the post mortem report that the cause of death of the deceased was sustaining as many as 14 deep cut injuries in different areas over the body of the deceased and in the opinion of the autopsy doctor, PW 11, the cause of death of the deceased was severe haemorrhagil shock resulting from the above mentioned injuries which was homicidal and antemortem in nature.
PW 4 was the husband of the deceased and the elder brother of the appellant. Though he was declared hostile and prosecution was permitted to cross-examine him, we find corroboration of the evidence of PW 14 from his statement recorded in course of examination-in-chief up to the extent that on the date of occurrence he was in the field. After returning home he found that his son was in search of the deceased. He also began to search for his wife. Ultimately, he found the body of the deceased lying in a low land adjacent to their 'danga' field.
The PW 9, the brother of the deceased was the de facto complainant. His house was situated at a distance of 6/7 kilometers from the place of occurrence. He got the information of murder of his sister. He arrived at the place of occurrence after receiving the above information. The fact of extra marital relationship of the deceased with the appellant was surfaced also from his evidence. The information with regard to murder of his sister as had been derived from the PW 14 after arriving at the place of occurrence was fully corroborated with the evidence of PW 14.
Similarly, PW 8, mother of the deceased obtained information of murder of her daughter from the PW 14. The description of commission of offence of the appellant which he had derived from his grandson PW 14 was fully corroborated with the evidence of PW 14.
The decision of Radhey Shyam (supra) does not help the appellant in the instant case. We find adequate corroboration to the evidence of child witness PW 14. In the instant case, the testimony of the hostile witnesses have been taken into consideration by us up to the extent the same corroborated by that of the evidence of PW 14. Therefore, the decision of Attar Singh (supra) also does not help the appellant in any way.
We cannot accept the submission that the prosecution case was based on circumstantial evidence or more particularly on the basis of the claim of "last seen together". As discussed hereinabove, the learned trial Judge accepted the PW 14 as eyewitness and his decision making process was based on such finding.
We do not find any substance in the submission made to the effect that the impugned conviction requires our interference on the ground that the recovery of the weapon of offence was not proved beyond all reasonable doubts. When the prosecution case is based on the evidence of eyewitness then there is no scope of acquittal of the accused person on the above ground. The decision of Niranjan Panja (supra) was relating to a prosecution case based on circumstantial evidence. Therefore, the same does not help the appellant.
With regard to defective charge, according to the provisions of Section 215 of the Cr.P.C. read with Section 464 of the Cr.P.C. the impugned judgment cannot be interfered with in absence of any misleading factor in the charge framed against an accused person. Reference may be made to the decision of Santosh Kumari vs. State of Jammu & Kashmir, reported in 2011 (3) SCC (Cri) 657, and the relevant portion of the above decision is quoted below:-
"7. Like all procedural laws, the Code of Criminal Procedure is devised to subserve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973.
The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. . . . ."
From the charge framed against the appellant we find that the date, time and the village in which the murder of the deceased took place were mentioned therein. The charge was read over and explained to the accused person. He pleaded not guilty and claimed for trial. Therefore, it does not require our interference in view of the settled principles of law.
In view of the above distinguishable facts and circumstances the decision of Anil Kumar Choulia, Santosh Kumar Choulia & Parul Bala Choulia (supra) has no manner of application in the instant case. In that case the prosecution failed to prove the continuous torture or ill-treatment of the deceased by framing a proper charge unlike the defect pointed out in the instant case.
While considering the contentions of the appellants in this case, an important cardinal rule of recording the statement of an accused under Section 313 of the Cr.P.C. is required to be considered. It is a part of fair trial to give opportunity to an accused while recording his statement under Section 313 of the Cr.P.C., to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. It means and purports that the entire prosecution evidence need not be put to the accused for obtaining elicit answer thereto but failure to put those circumstances which are adverse to him and obtaining of explanation thereto which would help the Court for evaluating the evidence properly would vitiate the trial provided when on fact it is found that it had occasioned a failure of justice. Reference may be made to the decision of Dharampal Singh vs. State of Punjab, reported in (2010) 9 SCC 608 and the relevant portion of the above decision is quoted below:-
"21. As part of fair trial, Section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution. The purpose behind it is to enable the accused to explain those circumstances. It is not necessary to put the entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. It is not an idle formality and questioning must be fair and couched in a form intelligible to the accused. But it doe not follow that omission will necessarily vitiate the trial. The trial would be vitiated on this score only when on fact it is found that it had occasioned a failure of justice."
(Emphasis supplied) In order to examine the contention of the appellant, question no.6 is relating to the evidence of PW 14 is noteworthy and the same together with the reply of the appellant is quoted below:-
"Q.6. PW 14 also said, after a while when her mother did not return he went towards the hental bushes with his brother calling 'Mother, mother' and found his uncle, i.e. you hacking Gaya Das. What do you say about this?
A.6. No."
From the above question and reply of the appellant thereto we find that the circumstances which was adverse to the appellant was put to him and no explanation was offered by the appellant save and except bald denial "No". In view of the above the contention of the appellant does not lead us to interfere with the impugned judgment.
The decision of Lallu Manjhi & Anr. (supra) does not come to an aid to the appellant in view of the facts and circumstances of the instance case that incriminating pieces of evidence available in the prosecution evidence was made available to the appellant by way of asking question no.6, amongst others, affording a opportunity to him for offering an explanation. For the same reason the decisions of Sanatan Naskar & Anr. (supra) and State of West Bengal vs. Babu Molla (supra) do not help the appellant in any way.
In view of the discussions and observations made hereinabove the impugned judgment does not require our interference and the appeal fails.
The appeal stands 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.)