Calcutta High Court (Appellete Side)
Anadi @ Bhombal Kaity vs The State Of West Bengal on 27 January, 2014
Author: Shib Sadhan Sadhu
Bench: Aniruddha Bose, Shib Sadhan Sadhu
Form No.J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Aniruddha Bose
And
The Hon'ble Mr. Justice Shib Sadhan Sadhu
C.R.A. 43 of 2004
Anadi @ Bhombal Kaity
Versus
The State of West Bengal
For the Appellant : 1) Mr. P.S.Bhattacharyya, Advocate
For the State : 1) Mr. Manjit Singh, Ld. P.P.
2) Mr. Sekhar Barman, Advocate
Heard on : 11.12.2013, 12.12.2013 and 13.12.2013.
Judgment on : 27.01.2014.
JUDGMENT
Shib Sadhan Sadhu, J.
1) The instant Criminal Appeal is directed against the judgment and order of conviction passed in Sessions Trial No.6 (1) of 2003 arising out of Sessions Case No. 7 (5) of 2002 by the Learned Additional Sessions Judge, 2nd Court, Bankura on 20.09.2003 holding the appellant guilty of the offence u/s 302 Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default one month's S.I. more.
2) Sans unnecessary details the prosecution case may be reproduced in the following words:-
"On 24.10.1999 at about 17.55 hours, the de facto complainant Paresh Karmakar lodged a written complaint before the O.C., Bishnupur P.S. to the effect that on 24.10.1999 at about 4 PM he came to know that his Bhagnipati Shaktipada Karmakar had been murdered at Kaity Para. Hearing that he along with his brother Ganesh and neighbours went to Kaity para and came to learn that his Bhagnipati was murdered in the house of Trilochan Kaity. They then visited the house of Trilochan Kaity and found the dead body of Shaktipada Karmakar was lying in the courtyard. The head of the deceased was totally crushed and the brain matter was exposed. He further found a blood stained wooden 'Mugur' was lying in front of the dead body. On making query Pratima Kaity, wife of Trilochan Kaity disclosed that Tribhanga and Janardhan, sons of her 'Vasur' engaged Rabi Karanga and the deceased Shaktipada Karmakar for thatching their kitchen and accordingly they were working from 23.10.1999. On 24.10.1999 at about 3.30 PM Anadi @ Bhombal, son of Trilochan hit Shaktipada on his head with the help of a wooden 'Mugur'. Shaktipada cried out when other sons of Trilochan came out but seeing Anadi armed with 'Mugur' they could not approach and called others. Shaktipada died on the spot.
3) On the basis of such complaint Bishnupur P.S. case No.137 of 1999 dated 24.10.1999 u/s 302 IPC was registered. That case was investigated into and on completion of investigation charge sheet was submitted u/s 302 IPC against the present appellant. Thereafter, the case was placed for trial before the Ld. Additional Sessions Judge, 2nd Court, Bankura who framed charge u/s 302 of the IPC against the present appellant and after conclusion of the trial he held the appellant guilty and convicted him as aforesaid.
4) Prosecution examined 11 witnesses in all in this case. Out of those witnesses P.W.1 Nemai Kaity, P.W.2 Pratima Kaity, P.W.4 Moloy Kaity and P.W.5 Tribhanga Kaity are the near relations of the appellant; P.W.3 Ganesh Karmakar is the brother-in-law of the deceased; P.W.6 is Rabi Karanga who was working with the deceased at the material time and who witnessed the incident; P.W.7 is Dr. Tarit Kanta Paul who held the post mortem; P.W.8 Paresh Karmakar is the brother of wife of the deceased and the de-facto complainant; P.W.9 is S.I. of police Chittaranjan Batabyal who received the complaint and registered the case; P.W.10 is S.I. of Police Samir Kumar Basak who on receipt of telephonic information from P.W.8 diarized the information and made G.D.Entry No.702 dated 24.10.1999 and he also received the written complaint from P.W.8 and he forwarded the same to the P.S. and he took up investigation from P.O. and conducted the investigation and P.W.11 is S.I. of Police Debasish Majumder who submitted the charge sheet.
5) Thus it is apparent that the prosecution relied on the evidence of the sole eye witness P.W.6 Rabi Karanga to show that the murderous assault in which the victim died had taken place before him and other witnesses for establishing the fact that the accused was detained at the P.O. by the local people and he was arrested therefrom by the police. Besides the prosecution has relied on the evidence of P.W.7 Dr. Tarit Kanta Paul to prove that the death was homicidal one.
6) We have heard Mr. P.S. Bhattacharyya, Ld. Counsel appearing on behalf of the appellant while the respondent State has been represented by the Learned Public Prosecutor Mr. Manjit Singh.
7) Learned Counsel for the appellant Mr. Bhattacharyya has taken us through the oral testimonies of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.8 and P.W.10. He pointed out some variations apparent from the evidence adduced by those P.W.s. and highlighted several infirmities in the prosecution case which in broad spectrum are as follows:-
a) That P.W.1, P.W.2, P.W.4 and P.W.5 did not at all support the prosecution case and they were declared hostile by the prosecution;
b) P.W.3 and P.W.8 are not eye witnesses;
c) P.W.3 did not disclose the name of the person from whom he heard that the appellant assaulted the deceased by 'Mugur' and so his evidence is nothing but hearsay;
d) P.W.8, the F.I.R. maker did not disclose the name of the person from whom he heard about the incident and rushed to the P.O. Although in the F.I.R.
he alleged that at the P.O. he came to know from P.W.2 about the incident of assault by the accused upon the deceased but P.W.2 did not corroborate him on this score. So his evidence fails to fetch any evidentiary value;
e) From the Inquest Report (Ext.6) it appears that P.W.2 is the only eye witness but P.W.2 did not depose anything and she was declared hostile;
f) P.W.6 is the sole alleged eye witness who deposed that the incident took place at about 2.30 P.M. but in F.I.R. the time of occurrence is mentioned as 3.30 P.M. This wide disparity regarding the time of occurrence makes the incident doubtful;
g) Version of P.W.6 is contradictory to the F.I.R. which does not bear his reference. Also the inquest report is silent about his presence;
h) The G.D. Entry No.702 dated 24.10.1999 which must be treatedq as F.I.R. being first in point of time has not been produced or exhibited which raises adverse presumption against the prosecution case;
i) The weapon of offence e.g. 'Mugur' was not produced in Court nor was identified by any of the P.W.s. including P.W.6;
j) It is not clear as to what statement was made by P.W.6 before the I.O. (P.W.10) specially when P.W.6 stated that he was not examined by police;
k) The examination of the accused u/s 313 Cr.P.C. was not proper and the conviction cannot be based merely relying upon the answers given by the accused during such examination.
8) Summing up the aforesaid contentions the Learned Counsel concluded that the prosecution has hopelessly failed to bring home the charge brought against the appellant and thus the conviction cannot be sustained and he is entitled to an order of acquittal by setting aside the impugned judgment and order.
9) On the other hand, Learned Public Prosecutor Mr. Singh supported the prosecution case submitting that the principal grounds on which the defence has assailed the judgment and order of conviction is without any substance and merits no consideration. According to the Learned State Counsel, the impugned judgment is well-contained and well-reasoned and thus deserves no interference. His contention may be summarized in the following lines:-
a) The F.I.R. maker P.W.8 is not an eye witness. So it is not fatal for not mentioning the name of the assailant in the F.I.R. He placed reliance on the decision reported in AIR 1970 Supreme Court 1305 (State of Rajasthan Vs. Kartar Singh) on this score;
b) P.W.6 was working together with the deceased at the P.O. at the material point of time on the fateful day and he witnessed the murderous assault upon the deceased by the appellant and nothing is elicited in his cross-
examination to impeach his veracity. Also his version gets corroboration from the Doctor P.W.7;
c) Time of incident was mentioned in the F.I.R. by P.W.8 by guess on hearing from others and as he was not present at the P.O. at the time of occurrence such discrepancy does not matter at all;
d) Non production of seized articles in Court does not hit the merit of the prosecution case specially when such seizure went unchallenged;
e) Laches on the part of the I.O. do not vitiate the trial;
f) There is no bar in taking into consideration the statements made by the appellant during his examination u/s 313 Cr.P.C. as a corroborative evidence specially when such statements support the version of P.W.6 and also the same is reflected from the F.I.R. and the Inquest Report.
10) Therefore, according to him the prosecution has well succeeded in proving the case against the appellant beyond all reasonable doubt and the Learned Trial Court has rightly convicted the appellant and he insisted upon dismissal of the appeal.
11) We have given our anxious and thoughtful consideration to the rival submissions of the parties in the light of the decision placed. We have also very carefully read between the lines of the entire book of the prosecution evidence.
12) Now coming to the prosecution case we find that P.W.6 Rabi Karanga who was working together with the deceased is the main star witness of the prosecution case. He deposed that he and Shaktipada went to the house of Bhombal at Kaity Para for repairing the kitchen of Bhombal about 4 years ago during Laxmi Puja and Bhombal was present at that time. He identified Bhombal as the accused person who is also known as Anadi. He further deposed that on that day at about 2.30 PM suddenly Bhombal began to assault Shaktipada by a 'Mugur' and he tried to save Shakti but he (accused) also tried to hit him (P.W.6). So he took a safe distance but Shakti died on the spot being assaulted by Bhombal and Shakti sustained grievous injury on his head due to said assault and his brain matter came out from the vault of his head and Shakti died.
In Cross-examination P.W.6 stated that Tribhanga and Janardhan Kaity engaged them to repair their kitchen. They worked two days in their house but they failed to collect their daily labour charge from them. He further disclosed that he was on the roof and Shakti was standing on the ground because he was supplying tiles to him (P.W.6) and he was placing tiles on the roof of that kitchen. He denied the suggestion that Shakti was working on the roof wherefrom he fell down and sustained injury on his head and died and that Bhombal did not assault by any wooden 'Mugur'. Although he stated further that he was not examined by police regarding the incident but the I.O. (P.W.10) discredited him by stating that he examined P.W.6 under Section 161 Cr.P.C.
In cross-examination P.W.10 further made it clear that he examined P.W.6 on 26.10.1999 because on 24.10.1999 he was not available up to late night. In the cross-examination of P.W.6 there are no material omissions or contradictions. It is very much surprising to see that he was not at all confronted with reference to his previous statements made before the I.O. Surprisingly enough he was not even given any suggestion that he did not at all see any incident or that no such incident took place at all. Further interesting and noticeable fact is that P.W.10 was also not confronted with reference to the statement made by P.W.6. On the contrary from the cross- examination of P.W.6, it appears that the presence of P.W.6 and the death of the deceased at P.O. are admitted facts. To be more precise, evidence of P.W.6 remains unimpaired. Therefore, we find no scar in the evidence of P.W.6 and we find it to be impeccable and trustworthy and can be safely relied upon.
13) P.W.1, the brother of the appellant and P.W.2 mother of the appellant stated before the police that Tribhanga and Janardhan employed P.W.6 and the deceased Shaktipada Karmakar for thatching their kitchen room from the preceding day and when their inmates were watching T.V. suddenly they heard shout and came out from their room and saw that Anadi was assaulting Shaktipada with 'Mugur' and the brain matter of Shaktipada had come out and thereafter Shaktipada died and they also found the 'Mugur' was lying beside the dead body. But while deposing as P.W.1 and P.W.2, they denied to have made such statements before the police. However, P.W.1 admitted that subsequently police came to their house. He also identified his signature on the seizure lists. Both of them were confronted in their cross-examinations by the prosecution with their statements to the police and they denied that they had made such statements. However, the I.O. (P.W.10) has confirmed that P.W.1 and P.W.2 made such statements before him. Although a statement to the police is ordinarily not admissible in evidence in view of Section 162(1) Cr.P.C. but as per provision of the Proviso to that section, it can be used to contradict the testimony of a witness.
We are of the opinion that the statements of P.W.1 Nemai Kaity and P.W.2 Pratima Kaity to the police can be taken into consideration in view of the Proviso to Section 162 (1) Cr.P.C. and their subsequent denial in Court is not believable because they obviously had afterthoughts and wanted to save their brother and son respectively from punishment. We derive authority to make such observation from the decision of the Hon'ble Supreme Court reported in 2011 Cr.L.J. 2903(S.C.) (Bhagwan Dass Vs. State (NCT) of Delhi).
14) P.W.3 and P.W.8 are not eye witnesses but they are post occurrence witnesses. They went to the P.O. on hearing the incident and found the dead body of the deceased Shaktipada Karmakar was lying on the courtyard of the house of the appellant and they further found that there was a grievous wound on the head of the deceased. P.W.8 further found that the appellant was detained in his house by public. He further confirmed seizure of the blood stained weapon 'Mugur' and a blood stained striped 'lungi' of the appellant from the P.O. Such evidence of P.W.3 and P.W.8 remained unassailed in their cross-examinations.
15) As has already been stated P.W.6 is the co-worker of the deceased, P.W.1 is the brother of the appellant, P.w.2 is the mother of the appellant, P.W.3 and P.W.8 are the brother-in-laws of the deceased. So their appearance in the scene of occurrence was quite natural and normal. Rather their absence would have been abnormal and unmatched with the facts and circumstances of this case. On the contrary cumulatively we find that there is ring of truth in the oral testimonies of those witnesses which cannot be discarded merely on the ground of some technicalities.
16) P.W.,7 Dr. Tarit Kanti Paul conducted Post Mortem Examination (Ext.3) over the dead body of Shaktipada Karmakar on 25.10.1999 and found the following injuries:-
i) Lacerated wound on the right frontal region bone deep 4" x 3" ;
ii) Lacerated wound parietal and frontal bone deep 5" x 3' ;
Brain matter came out from the vault of the brain.
iii) Dr. Paul opined that the cause of death was due to the head injury which was ante mortem and homicidal in nature. He has further deposed that such sort of injuries may be caused by 'Mugur' or 'club';
iv) In cross-examination he emphasized that due to fall from high place such sort of injuries shall not be caused.
Supporting evidence in this regard is also furnished by the Inquest Report ( P.W.6 ) in which the I.O. noted the injuries seen by him on Shaktipada's dead body during the Inquest. The defence did not make any cross-examination to the Doctor (P.W.7) on his opinion so as to rule out the factum of homicidal death of the deceased Shaktipada Karmakar.
17) The appellant while giving answers to the questions put to him by the Learned Trial Court during his examination u/s 313 Cr.P.C. clearly admitted that P.W.6 and the deceased Shaktipada had gone to their house during Laxmi Puja to thatch their kitchen room and he was then present there. He further admitted that he was detained in his house by the para people and on arrival of police, they handed him over to police and that the I.O. arrested him from their house and that the I.O. seized his blood stained 'lungi' from his possession and the blood stained 'Mugur' from the P.O. and he put his signature on those seizure lists.
18) In this context we think it appropriate to quote the observation made by the Hon'ble Supreme Court in the case of Brajendrasingh Vs. State of Madhya Pradesh reported in 2012 Cr.L.J. 1883 which is as follows:-
"It is a settled principle of law that the statement of an accused under Section 313, Cr.P.C. can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under Section 313, Cr.P.C. simpliciter normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced. We may refer to a recent judgment of this Court in the case of Ramnaresh & Ors. V. State of Chhattisgarh, (being pronounced today) wherein this Court held as under:-
" In terms of Section 313, Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313, Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. [Ref. Rafiq Ahmed alias Rafi V. State of Uttar Pradesh [(2011 ) 8 SCC 300 : (AIR 2011 SC 3114 : 2011 AIR SCW 4732)].
It is a settled principle of law that the obligation to put material evidence to the accused under Section 313, Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313, Cr.P.C., insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
19) Deliberating upon the contention raised by the Learned Counsel for the appellant to the effect that the G..D. Entry No.702 dated 24.10.1999 must have been treated as F.I.R. being first in point of time we would like to say that mere giving intimation to the police over telephone and making a G.D.Entry on the basis of such information is not sustainable in absence of any cross-examination of the I.O. with regard to the F.I.R. (vide 2010 Cr.L.J.1880). Further it is well settled position that cryptic message regarding an occurrence cannot be termed as First Information Report (vide 2010 Cr.L.J. 2815 (S.C.). Yet further the Hon'ble Supreme Court held in the case of Ram Singh Baiji Jadeja Vs. State of Gujarat reported in 1994 Cr.L.J. 3067 that any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as First Information Report.
20) Further contention raised by the learned Counsel for the appellant centering the non-production of the seized weapon of offence i.e. the 'Mugur', we find that the defence has failed to show that they have at all been prejudiced on account of such lapse committed by the I.O., moreover, the seizure of the offending 'Mugur' and the wearing apparels of the appellant was not disputed during trial. In such position any failure or omission on the part of the I.O. or any irregularity or even any illegality during investigation should not be treated as a ground to reject the prosecution case. (vide A.I.R. 1999 Supreme Court 3717/2003 A.I.R. SCW
717).
21) The oral testimony of Dr. Paul as well as the Ext.3 altogether unerringly leads to the only conclusion that the injuries on the right frontal region bone deep and on parietal and frontal bone deep of head of the deceased Shaktipada Karmarkar were caused by weapon like 'Mugur' or 'Club' and caused his death and the injuries were ante mortem and homicidal in nature.
22) The evidence of the eye witnesses received full corroboration from the medical evidence and also from the answers given by the appellant during his examination under Section 313 Cr.P.C. which leaves no room for harbouring any doubt that on 24.10.1999 at about 2.30 PM the appellant had hit the deceased Shaktipada Karmakar with a wooden 'Mugur' on his head while he was engaged in thatching tiles in the kitchen room of the appellant's house. Shaktipada sustained grievous injury and his brain matter came out and he died on the spot. P.W.6 who was working together with the deceased witnessed the assault. Also the other witnesses rushed to the spot on hearing shout and saw the incident and the appellant was detained and being informed police came and arrested him therefrom and seized his blood stained wearing apparels and the blood stained 'Mugur'.
23) We therefore, have no hesitation to hold that the prosecution has been able to prove the guilt against the accused to its hilt and the Learned Trial Court has rightly held that the guilt is proved against the appellant.
24) The sum total of the foregoing discussion is that the Trial Court has properly appreciated the evidence on record and has held the appellant guilty. We do not find any merit in the appeal. No interference is called for in exercise of our appellate powers. The appeal must fail and stands dismissed.
The office is directed to send down Lower Court Records at once.
(Shib Sadhan Sadhu, J.)
25) I agree,
(Aniruddha Bose, J)