Calcutta High Court (Appellete Side)
Kabir Sk vs The State Of West Bengal on 21 February, 2014
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present : The Hon'ble Justice Jayanta Kumar Biswas
and
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
C.R.A. No. 154 of 2001
Kabir Sk.
vs.
The State of West Bengal
For the appellant : Mr. Tusher Kanti Mukherjee
Mr. Manojit Pal
Mr. S. Parvin
For the State : Mr. Manjit Singh, P.P.
Mr. Rudradeepta Nandy
Heard on : 26.11.13, 27.11.13, 02.12.13, 03.12.13
Judgement on : 21.02.14
Dr. Mrinal Kanti Chaudhuri, J. :-
This appeal is directed against the judgement and order of conviction
and sentence passed by learned Additional Sessions Judge-cum-Judge,
Special Court, Burdwan in Sessions Case No. 120 of 1991 (Sessions Trial
No.12 of 1993) under Section 302 of Indian Penal Code.
The prosecution case in short is that, on 18.11.1989 at about 9 p.m.
the deceased Krishnadhan Chaudhuri along with his father, mother and
his relative Hasirani Chaudhuri were taking dinner in their kitchen. The
wife of the deceased was serving the dinner. Suddenly, the
accused/convict with a sharp cutting weapon in his hand and placing one
step inside and other step outside the kitchen dealt blows over the head of
Krishnadhan Chaudhuri behind his back and fled away. The wife and
father of the deceased identified the assailant/convict in the light of the
kerosene lamp. There was hue and cry and local people came and brought
the injured to Kalna Hospital where he died. On the next day, the father of
the deceased lodged a written complaint with the officer-in-charge,
Purbasthali P.S. Police registered the case under Section 302/34 of the
Indian Penal Code. Police started investigation and arrested the
accused/convict along with another accused namely Manik Chaudhuri. On
the basis of the prayer of the investigating officer, TI Parade was held. The
father and the wife of the deceased identified the convict Kabir Sk. as
assailant of deceased Krishnadhan Chaudhuri. After completion of
investigation, Investigating Officer submitted a charge-sheet against the
convict Kabir Sk. under Section 302 of the Indian Penal Code. Learned
Trial Court, thereafter framed charge against the accused/convict Kabir Sk.
under Section 302 of the I.P.C. The charge was read over and explained to
the accused person who pleaded not guilty and claimed to be tried.
Prosecution examined 9 witnesses and filed the documents which
have been marked exhibit as per list. The accused person was examined
under Section 313 of Cr.P.C.
The defence case as it appears from the trend of cross-examination of
prosecution witnesses and examination of accused person under Section
313 of Cr.P.C., is a plea of innocence and denial of charge levelled against
him. No defence witness has been examined.
Learned Trial Judge after scrutinising the prosecution witnesses and
the version of the accused given under Section 313 of Cr.P.C. found that
the accused person guilty for commission of offence punishable under
Section 302 of I.P.C. and sentenced him to rigorous imprisonment for life
and pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment
for 6 months.
Being aggrieved by and dissatisfied with the judgement and order of
conviction and sentence, the convict has preferred this appeal as appellant.
This appeal has been contested by the prosecution. Now, the points for
consideration are -
1) Whether the judgement and order of conviction and sentence passed
by learned Trial Court are justified or not.
2) Whether the prosecution case has been proved beyond all reasonable
doubts.
Decision with Reasons
P.W.1 Ratan Debnath wrote the written complaint as per testimony of
Harendra Kumar Chaudhuri, the father of the deceased. Having heard the
hue and cry, they came to the house of the deceased and found him lying
on the kitchen with his head on the lap of his mother. He sustained
bleeding injury in his head. The written complaint was marked exhibit. He
also signed in the seizure list by which two kerosene lamps were seized by
the I.O. In his cross-examination, he stated that the accused person was
arrested within 10 days from the date of incident.
P.W.2, Pijush Kanti Bhowmick, a co-villager came to the house of the
deceased after incident.
P.W.3, Smt. Swarnalata Chaudhuri is the mother of the deceased.
She has stated that on 2nd Agrahayan, Saturday, about 3 and ½ years ago
her son was murdered at about 9.30 p.m. while she herself along with her
husband and son were taking meal in their kitchen. She has also stated
that one person struck on the head of her son who fell down, but she could
not recognise the assailant. Her cross-examination was declined by the
defence.
P.W.4, Gouri Shankar Kanjilal, S.I. of police received the written
complaint from the father of the deceased. On the basis of said complaint,
he started Purbasthali P.S. Case No.205/1989 dated 19.11.1989. He filled
up formal F.I.R. and signed on the same. It was marked Exhibit 3. He
endorsed the case to S.I. N. Banerjee for investigation. His cross-
examination was declined by the defence.
P.W.5, Harendra Kumar Chaudhuri, the father of the deceased stated
in his evidence that he resided at Uparchapahati under P.S. Purbasthali.
Krishnadhan Chaudhuri had been murdered on 2nd Agrahayan at about
8.30 or 9 p.m. while he himself along with his son Krishnadhan Chaudhuri
and wife Swarnalata Chaudhuri were taking dinner and his son's wife
Saraswati Chaudhuri was serving dinner. At the relevant time, accused
Kabir Sk. (identified by him on the dock) suddenly came and struck on the
head of his son with a Ramdao. His son having sustained severe bleeding
injury fell down on the ground. He was taken to Kalna Hospital where he
died. He narrated the incident to Ratan Debnath who wrote the complaint
and he signed on it. The signature was also marked as Exhibit ½. He also
signed in the seizure list in the matter of seizure of kerosene lamp. He
stated further he did not know the accused from before hand and he came
to know his name on the next day. He also identified the accused/convict
in the TI Parade. He stated further in his cross-examination that
Samudragarh is a big village having number of localities (Para) and Nimtala
is one of such Paras having a bazar known as Nimtala Bazar. He stated
that the assailant wrapped his head and not his face while he came to their
house. He also stated that Manik is his brother in-law's son and Hasirani
Chaudhuri is the mother of Manik Chaudhuri.
P.W.6, Smt. Saraswati Chaudhuri, the wife of the deceased
Krishnadhan Chaudhuri stated that on 2nd Agrahayan, Saturday, at about
9 p.m. while her husband and in-laws were taking dinner and she was
serving dinner by standing in front of them, she heard a noise of barking of
dog and she saw that suddenly one man struck on the head of her husband
who sustained bleeding injury. The local people came after hearing hue
and cry. Her husband was taken into hospital where he died. She has
categorically stated that she saw the man who struck the head of her
husband. In TI Parade and on the dock she identified the accused/convict
who struck on the head of her husband. She also stated that two kerosene
lamps were burning by the side of the dinner and with the help of the light
of lamp she saw the assailant. In her cross-examination, she stated that
she came to know the name of the assailant as Kabir Sk. On subsequent
occasion while she was returning from Doctor's chamber, the accused came
in cycle in front of her. She also stated that she was examined by police.
She cannot say whether head or face of the assailant was covered with
'chadar'. She voluntarily stated at once that she saw the face of the
accused clearly. She came to know that Kabir Sk. was a resident of
Nimtala Bazar. It had been suggested from the end of defence that she had
been deposing what she had been tutored to depose. It was further
suggested from the end of defence that the assailant was shown and known
to him and as such she identified him in the TI Parade.
P.W.7, A.S.I. of police, N. C. Ghose held inquest over the dead body of
deceased Krishnadhan Chaudhuri who was identified by Ratan Krishna
Debnath and Jayanta Choudhury. He held inquest in the Kalna hospital
morgue. The inquest report was written and signed by him and marked
exhibit 4 and he started U.D. Case No.185 of 1989. He sent the dead body
for post mortem examination through dead body challan.
P.W.8, Sri Manas Kumar Pal stated that on 06.12.1989 he was
posted at Kalna. On that date he held TI Parade inside the Kalna Sub Jail
in connection with Purbasthali P.S. Case No.205 of 1989 dated 19.11.1989
under Section 302 of Indian Penal Code. He held TI Parade after observing
all the formalities. He also stated that witness Harendra Kumar Chaudhuri
identified the suspect, Kabir Sk. by touching his hand saying while he was
drinking water after dinner at kitchen, he saw the suspect covered with a
chadar entering into the room and to chop his son with a Dao and running
away. He also stated that Smt. Saraswati Chaudhury also identified the
accused/convict by touching his hand by saying that while she was
standing facing the door of the kitchen in course of serving meal, she saw
the suspect entering and chopping her husband's head with a Dao and
running away. Both witnesses failed to identify suspect Manik Chaudhuri
as assailant of deceased. The report was prepared and signed by him at
Kalna Sub Jail and marked Exhibit 5. In his cross-examination, this
witness stated that the case reference has not been mentioned in the TI
Parade memo. He also stated that the suspect Kabir Sk. stated before him
that the witnesses were his next door neighbours and they had been
noticing him since long and he has been falsely implicated by the witnesses
in this case out of enmity.
P.W.9, Narayan Chandra Banerjee, S.I. of police stated that on
19.11.1989he was posted at Purbasthali P.S. as S.I. On that date he had been entrusted Purbasthali P.S. Case No.205 of 1989 dated 19.11.1989 for investigation. He held investigation. During investigation, he visited place of occurrence. He seized one kerosene lamp and one manufactured lamp of glass. He also seized one 'chatai' made of date leaf under seizure list. He examined witnesses. He arrested the accused Kabir Sk. He submitted prayer before the learned Magistrate for holding TI Parade. He collected TI Parade report and post mortem report and after completion of investigation he submitted charge-sheet against the accused Kabir Sk. under Section 302 of Indian Penal Code. It has been suggested from the end of defence that this witness investigated the case against accused person motivatedly.
Out of the 9 prosecution witnesses P.W.5 Harendra Kumar Chaudhuri is the father of the deceased. P.W.6 Smt. Saraswati Chaudhuri is the wife of the deceased. They are the eye witnesses to the occurrence. It is most crucial to examine whether the evidences of these eye witnesses are reliable or trustworthy so as to prove the prosecution case beyond all reasonable doubt.
It has been submitted by learned counsel for the appellant that Hasirani Chaudhuri, the mother of Manik Chaudhuri was present in the kitchen. But, she being a vital witness was not examined by the prosecution and no explanation was advanced for her non-examination. On a close and careful perusal of the prosecution witnesses including the written complaint it transpires that, at the relevant time of the occurrence, the deceased's father Harendra Kumar Chaudhuri, his mother Swarnalata Chaudhuri and Hasirani Chaudhuri were present in the kitchen and the wife of the deceased Smt. Saraswati Chaudhuri was serving dinner. Prosecution examined the father of the deceased, the mother of the deceased and the wife of the deceased. All these three are vital witnesses. But mother of the deceased could not recognise the assailant while the father and wife of the deceased clearly identified the assailant by the light of the kerosene lamp. It is wise to reiterate the relevant portion of evidence of the eye witnesses namely P.W.5 Harendra Kumar Chaudhuri and P.W.6 Smt. Saraswati Chaudhuri. P.W.5 Harendra Kumar Chaudhuri has categorically stated in his evidence that while he was taking dinner at about 8.30 to 9 p.m. along with wife and son and his son's wife was serving dinner, the accused Kabir Sk. (identified on the dock) suddenly came and struck on the head of his son with a Ramdao. He also stated that he did not know the accused from before hand and he came to know his name on the next day. He also identified the accused in TI Parade. In his cross- examination, he stated that the accused wrapped his head and not his face while he entered at the time of commission of offence. This part of evidence of the father of the deceased in his examination-in-chief has not at all been challenged in his cross-examination. In the cross-examination, it has only been suggested that the accused person has been falsely implicated in this case; but no explanation was ever advanced as to the details of false implication. To that extent, the evidence of this eye witness remains as an unchallenged testimony. We find no reason to disbelieve the testimony of this eye witness. In absence of cogent ground of false implication, the credibility and trustworthiness of this witness cannot be shaken merely because of his relationship with the deceased.
Another eye witness Smt. Saraswati Chaudhuri examined as P.W.6 gave the vivid description of the occurrence. She stated that on 2nd Agrahayan, 1396 BS, Saturday, at about 9 p.m. she was serving dinner to her husband and in-laws. She was in standing position while they were taking meal. She heard a noise of barking of dog and suddenly she saw one man to struck on the head of her husband with a Dao. Her husband fell down after sustaining bleeding injury. She further stated in her cross- examination that she saw the man who struck on the head of her husband with the help of the light of two kerosene lamps which were burning by the side of the dinner. She has further categorically stated that she saw the assailant. She has also stated that she identified the accused at the time of TI Parade. She also identified the accused on the dock stating that "this is the accused who struck on the head of my husband". This part of evidence in the examination in chief of this eye witness has not at all been controverted by any cogent and trustworthy suggestion. It had only been suggested that she deposed what she was tutored. It was further suggested that she identified the accused in TI Parade as the accused was shown and known to her from before hand. It is quite natural and probable for this witness to see the assailant because she was in the standing position in front of her husband and in-laws who were taking dinner. Moreover, it was quite natural to raise her head after having heard the noise of barking of dog and to see at the relevant time, the accused/convict entering into the kitchen and dealting blow by Dao over the head of her husband. The entire testimony of this eye witness remains unchallenged and uncontroverted and, therefore, the testimony of this witness can hardly be disbelieved. The credibility and trustworthiness of both these P.W.5 and P.W.6 cannot at all be doubted.
P.W.3 Smt. Swarnalata Chaudhuri corroborates the evidences of P.W.5 and P.W.6 to the extent that 3 and ½ years ago, at about 8.30 p.m., while she and her son and her husband were taking dinner in the kitchen, one person struck on the head of her son. She however, could not recognise who assaulted her son. Her cross-examination was declined.
On the face of sworn testimony of the two eye witnesses, non- examination of Hasirani Chaudhuri, a relative of the de facto complainant remaining present in the kitchen, is not fatal to the prosecution case. With regards to the examination of witness Hasirani chaudhuri, learned counsel for the appellant has cited a decision reported in AIR 1988 SC 2154 (State of UP vs. Krishna Gopal and Anr.) in paragraph 13. The principle of law cited in that case, does not render any assistance to the appellant. On the contrary, the ratio of the decision supports the prosecution case in the present facts and circumstances. In the said case, Hon'ble Apex Court held that where the sworn testimony of the eye witness is found credible and trustworthy, medical opinion pointing to the alternative possibilities is not accepted as conclusive. Therefore, eye witnesses would require a careful and independent assessment and evaluation for their credibility. The evidence must be tested for its inherent consistency and inherent probability. It has further been held that consistency with the account of other witnesses held to be creditworthy. It is wise to quote the relevant portion of paragraph 13: "It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witness's account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit- worthy; consistency with the undisputed facts and 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation".
The credibility of the testimony of the aforesaid eye witnesses in their substantive evidence finds, further corroboration from their identification in the IT Parade. The witnesses have stated that there was kerosene lamp and by the light of the lamp the convict Kabir Sk. could be identified by them. P.W.8 Manas Kumar Pal, learned Judicial Magistrate held TI Parade. He stated in his evidence that in connection with Purbasthali P.S. Case No.205 of 1989 dated 19.11.1989 under Section 302 IPC, he held TI Parade inside the Kalna Sub Jail. The witness Harendra Kumar Chaudhuri identified the suspect Kabir Sk. by touching his hand and saying that while he was drinking water at the time of dinner, he saw the suspect covered with chadar having open face entering into the kitchen and chopping his son and running away. Similarly, witness Smt. Saraswati Chaudhuri also identified the suspect saying that while she was standing in course of serving meal, she saw the suspect covered with a chadar entered into the room and chopping on the head of her husband and running away. Test Identification Parade is not a substantive evidence. It is used for corroboration of substantive evidence adduced during the course of trial. The vivid description of the P.W.5 and P.W.6 as to their position of taking dinner and serving meal and also as to the entering the convict and gaving blow to the victim make it convenient for them to identify the accused while there was burning kerosene lamp at the time of taking dinner. With regards to the Test Identification Parade, learned counsel for the appellant has submitted that the learned Magistrate has not mentioned case reference in the TI Parade memo. It is settled principle of law that TI Parade is not a substantive evidence. It is used for corroboration of substantive evidence adduced during the course of trial.
Hon'ble Apex Court in a case Heera and Anr. vs. State of Rajasthan reported in 2007 AIR SCW 4304 held that the substantive evidence is the evidence of identification in the Court. "The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior Test Identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings". It has further been held that "they do not constitute the substantive evidence and these parades are essentially governed by Section 162 of the Code. Earlier to hold a Test Identification Parade would not make inadmissible the evidence of identification in Court. The weight to be adopted to such identification should be a matter for the course of fact".
Similarly, in another decision, Hon'ble Apex Court in Ronny alias Ronald James Alwaris and Ors. vs. State of Maharashtra reported in (1998)3 SCC 625 held that "the evidence of identification of the TI Parade is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The purpose of Test Identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain it if it can be used as reliable corroborative evidence of the witness in Court identifying the accused at his trial in Court. If a witness identifies the accused in Court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such a piece of evidence. But, if a witness has known an accused earlier in such circumstances which lend assurance to identify by him in Court if there is no inherent improbability or inconsistency, his statement in Court about the identification of accused should be relied upon, as any other acceptable but uncorroborated testimony".
The aforesaid ratio of decision of the Hon'ble Apex Court clearly denotes that Test Identification Parade is not a substantive evidence but a corroborative one.
Similarly, Hon'ble Apex Court in another decision reported in 2008 Cr.LJ 2602 Md. Kalam @ Abdul Kalam vs. State of Rajasthan has also clarified that identification in the TI Parade is not a substantive evidence, but it strengthens trustworthiness of evidence of identification given in Court.
From the aforesaid decision of Apex Court, it is quite evident that Test Identification Parade is not a substantive evidence. It only strengthened the substantive evidence of identification in Court by way of corroboration. Hon'ble Apex Court further held that if the accused is known to the witness earlier, having opportunity to interact with him and notice his distinctive features, the evidence of identification in Court by such witness for the first time without participating in TI Parade can be relied upon in absence of any inherent infirmity or inconsistency [(1998)3 SCC 625].
Learned Magistrate in his substantive evidence as P.W.8 has clearly stated that he held TI Parade inside the Kalna Sub Jail in connection with Purbasthali P.S. Case No.205 of 1989 dated 19.11.1989. But in his cross- examination he stated that case reference has not been mentioned in the TI Parade memo.
Non-mentioning of case reference in TI Parade memo which is not a substantive evidence cannot at all be fatal to the prosecution case inasmuch as this witness has stated the case reference in his substantive evidence. At best this non-mentioning of case reference may be treated as irregularity, not an illegality. This irregularity has been subsequently cured by the substantive evidence of learned Magistrate disclosing the case reference of the TI Parade memo as stated above.
Moreover, it is not the case of defence that appellant had been prejudiced for non-mentioning of case reference in TI Parade memo. Even appellant during his examination under Section 313 of Cr.P.C. did not utter a single word of his being prejudiced save and except that the witnesses are his next door neighbours. Therefore, submission of learned counsel for the appellant has no merit in the instant case.
Learned counsel for the appellant further referred to a decision reported in AIR 1981 SC 1392 (Wakil Singh and Ors. vs. State of Bihar) and submitted that the witnesses in their oral evidence do not give any description of the assailant whom they identified nor gave any identification marks namely stature of accused or whether they were fat or thin or of fair or black colour.
In reply, learned prosecution submitted that in the aforesaid decision, one witness was examined. But in the present case two eye witnesses were examined and they identified the accused/convict. Moreover, it was not possible for those witnesses to give detailed description of the assailant with the physical stature including the colour because the assailant just left one step inside the kitchen and another step outside and in a very few seconds he dealt blow and ran away. The submission of learned prosecution has sufficient merit as the evidence of the prosecution of the witnesses including the averment of written complaint discloses that when the de facto complainant along with son and wife and relative were taking dinner to be served by daughter-in-law, the assailant with his one step inside and another step outside the kitchen suddenly dealt blow and fled away. The complaint further reveals that the de facto complainant and his daughter-in-law could identify the assailant. The substantive evidence of de facto complainant examined as P.W.5 and another eye witness P.W.6, the daughter-in-law of de facto complainant sufficiently reveal that the assailant suddenly struck on the head of the deceased who fell down having sustained severe bleeding injury. Both of them not only identified the assailant in the Court but also during the time of Test Identification Parade. P.W.5 has further stated that the assailant wrapped his head and not his face while he came to their house. P.W.6 has stated that with the help of the light of the kerosene lamps which were burning by the side of the dinner, she saw the appellant and, therefore, she identified both in the Court as well as during the TI Parade. In her cross- examination, this P.W.6 volunteered that "I saw his face clearly". Therefore, it was not possible for the eye witnesses to give description of physical stature including his complexion as the assailant dealt blow, all on a sudden, probably within a few seconds and ran away. Therefore, the decision cited by the learned counsel for the appellant does not help the appellant in any way. The submission of learned counsel for the appellant does not find any merit on this score.
On a close and careful scrutiny of the evidences of the eye witnesses namely P.W.5 and P.W.6 together with the evidence of the learned Magistrate who held Test Identification Parade, we do not find any scope to doubt the sworn testimony of both eye witnesses whose substantive evidences of identification in the Court have been strengthened by the corroborative evidence of Test Identification Parade where the witnesses clearly described how they identified the assailant. In the Test Identification Parade, the appellant stated before the learned Magistrate that the witnesses falsely implicated him out of enmity. But the details of enmity have not at all been disclosed either in the examination of the accused under Section 313 of Cr.P.C. or by adducing any defence witness. No explanation is forthcoming as to why he did not disclose the details of enmity for which he had been allegedly falsely implicated during his examination under Section 313 of Cr.P.C.
It is the settled principle of law that the examination of accused person under Section 313 of Cr.P.C. is not a mere formality. It gives ample opportunity to the accused person to explain the ground for his alleged false implication for previous enmity. In absence of details of enmity and false implication, the substantive evidence of P.W.5 and P.W.6 with reference to identification as assailant cannot be ruled out.
The appellant has further stated before the Magistrate that the witnesses were his next door neighbours and they had been noticing him since long. But it can hardly be believed how the accused and witnesses are closed door neighbours and they are noticing for a long time. The witnesses are the resident of Uparchapahati, P.S. Purbasthali as it appears from the evidence of P.W.5 and P.W.6 whereas the appellant is a resident of Nimtala Bazar. Cross-examination of P.W.5 reveals that Samudragarh is a big village having number of localities (Paras) including Nimtala Bazar. Therefore, the appellant and the eye witnesses cannot be stated to be the resident of same locality and they cannot be stated to be the next door neighbours. In case, for argument's sake, the witnesses have been noticing him for a long time as they are resident of same locality, the substantive evidence of identification in Court is to be relied upon because of absence of inherent infirmity and inconsistency of the statement of witnesses as held by Hon'ble Apex Court in the decision reported in (1998)3 SCC 625. In the instant case, occurrence took place on 18.11.1989. Test Identification Parade was held on 06.12.1989. Therefore, we do not find any inordinate delay in holding TI Parade which was held as early as possible soon after the occurrence.
It is further submitted by the learned counsel for the appellant that witnesses in TI Parade did not identify another suspect Manik Chaudhuri. Manik Chaudhuri is a relative of the de facto complainant. He is the son of Hasirani Chaudhuri who was present at the time of dinner. It is, therefore, submitted that the witnesses were not identifying Manik Chaudhuri in the TI Parade and motivatedly implicated the appellant Kabir Sk. Learned public prosecutor has submitted in reply that the witnesses were called for to identify the assailant who actually dealt blow by Dao over the head of the deceased. Both the eye witnesses P.W.5 and P.W.6 have unequivocally stated in their substantive evidence that it is Kabir Sk. who dealt blow by Ramdao while de facto complainant and his wife and deceased were taking dinner. Learned counsel for appellant submitted that it was Manik Chaudhuri, not Kabir Sk. who dealt blow by Dao over the head of victim because of bitter relation between victim and Manik in the matter of latter's mixing with one girl named Ranu. Learned prosecutor submitted in reply that had Manik dealt blow, the parents and wife of victim would not have spared Manik in any way. The submission of learned public prosecutor has sufficient merit. In fact, Test Identification Parade was held in order to ascertain and identify the actual culprit who had committed the offence. Since Manik Chaudhuri did not commit any offence, according to the prosecution, the witnesses did not identify Manik Chaudhuri as assailant. In addition to that, both the witnesses by touching the assailant Kabir Sk. have given a detailed picture as to how they could identify the assailant. One eye witness namely P.W.5 stated that after dinner while drinking water he saw the assailant and P.w.6 stated while she was serving dinner, she heard the sound of barking of the dog and there was light of burning kerosene lamp and thereby she identified the assailant and she clearly saw the face of assailant by the light of the kerosene lamp. Therefore, the question of identification of Manik Chaudhuri as assailant does not arise. The submission of learned counsel for appellant has no merit on the aforesaid argument.
P.W.7, A.S.I. N. C. Ghose held the inquest over the dead body of deceased Krishnadhan Chaudhuri. The inquest was held at Kalna hospital morgue. The inquest report was marked Exhibit 4. This witness sent the dead body for post mortem examination through relevant challan. Inquest was held on 19.11.1989 at 8.45 a.m. Inquest report reveals the head injury of the deceased with blood emitting therefrom over the bandage. At the same time, it further reveals that the victim died due to head injury. Post Mortem report has been marked as Exhibit 7. Post Mortem report reveals wound from left eye lid to occipital about 8 inches into ½ into brain with sharp margin covered and divided to right side skull. The report reveals that the death was due to shock and hemorrhage as a result injury of head which were ante mortem and homicidal in nature. Learned counsel for the appellant has raised objection as to the marking of the exhibits and its admissibility without examining of the autopsy surgeon. Learned Court below in the judgement has observed that conclusion of post mortem report cannot be assumed as incorrect in absence of cross-examination of Doctor conducting the post mortem. Learned Court below also held that the Doctor who had held post mortem was not available for cross-examination. Learned Court below relied upon Section 294 (3) of Cr.P.C. Learned Court below in the order No.88 dated 08.03.2001 relied upon the provision of Section 294(3) of Cr.P.C. and marked post mortem report as Exhibit 7.
It is contended by the learned counsel for the appellant that the appellant did not get any opportunity to cross-examine the Doctor who held post mortem examination. Therefore, post mortem report cannot be taken into evidence and marked exhibit and conviction cannot be based upon the report of post mortem examination. Learned counsel has referred to a decision reported in 2004 C.Cr.L.R. (SC) 586 (Meera vs. State of Rajasthan). The said decision reveals that the Doctor admitted that the medical papers on which he recorded, have been destroyed and there is no entry in the outdoor register about the deceased having been brought to the hospital. There is no reference in the outdoor ticket number in the post mortem report. In the said decision it was held that apart from oral statement of the Doctor, no documentary evidence had been produced to substantiate his claim. His original writings on which the treatment given to the patient was recorded, admittedly was destroyed by him, even though he knew it to be a medico legal case, as admitted by him. The facts and circumstances of the said decision is not applicable to the present case. In the present case, Doctor could not be traced out in spite of repeated summons as it appears from Order No.88 dated 08.03.2001 in the Trial Court Records. However, the question marking P.M. report as admissible evidence under Section 294(3) of Cr.P.C. is a matter of serious consideration.
Section 294(1) of the Cr.P.C. provides that where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. Section 294(3) provides; where the genuineness of any document is not disputed, such document may be read as evidence in any enquiry, trial or other proceeding under this code without proof of the signature of the person to whom it purports to be signed. Therefore, Section 294(1) provides that the party or the pleader must be called upon to admit or deny the genuineness of the document and Section 294(3) provides that where genuineness of any document is not disputed, the same may be admitted in Court as evidence without the examination of person who signed in the document.
Learned Public Prosecutor has cited the following decision in the matter of marking of the post mortem report as exhibit and admissibility to of its evidence without the Doctor being examined.
1) 2003 Cri.L.J. 1031 (Karnataka High Court Full Bench).
2) Criminal Law Journal 1997 (High Court at Calcutta)
3) (2009)13 SCC 722 (Akhtar and Ors. vs. State of Uttaranchal).
Hon'ble Apex Court in decision (2009)13 SCC 722 (Akhtar and Ors. vs. State of Uttaranchal) in Para 21 held "it is settled position of law that if genuineness of any document filed by a party is not disputed by one opposite party it can be read as substantive evidence under Sub- Section (3) of Section 294 Cr.P.C. Accordingly, the post mortem report, if its genuineness is not disputed by the opposite party, the said post mortem report can be read as substantive evidence to prove correctness of its contents without a Doctor concerned being examined".
A Division Bench of this Court, in a decision reported in Cri.L.J. 1997-0-2441 held that if the post mortem report was tendered by the prosecution and its genuineness was not objected by the defence, the same could be admitted as a substantive evidence under Section 294 of the Cr.P.C. where in spite of efforts the whereabouts of the Doctor who held the post mortem examination could not be traced out. It was held in the said decision that Full Bench of Allahabad High Court in its decision in case of Saddique vs. State of U.P. reported in 1981 Cr.L.J. 379 held that post mortem report or injury report becomes substantive evidence where genuineness of such report is not disputed by the defence.
In another decision reported in 2003 Cri.L.J. 1031 (Karnataka High Court Full Bench) it was held that the post mortem report or any other document of which genuineness is not disputed by the accused can be read as substantive evidence without formal proof. Full Bench observation of Karnataka High Court in the said decision reveals that party seeking to avail the benefit of Section 294 of Cr.P.C. should file a list containing the particulars of every such document and shall call upon the other side to admit or deny the genuineness of such document only. Where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry or trial without the proof of the signature of the person to whom it purports to be signed. Hon'ble Court further held that this provision indicates that there must be something on record to show that either the prosecution or the defence was called upon to admit or deny the genuineness of certain document and it is only where the genuineness of the document is not disputed, such document may be read in evidence without the proof of the signature of the person to whom it purports to be signed. We may quote the relevant portion: "Section 294 of Cr.P.C. dispense with only the proof of the signature of the persons to whom it purports to be signed. That being so, there must be enough indication in the report to show that the party against whom a document is sought to be put was called upon to admit or deny the genuineness of such document. If there is no such indication and if the document is simply marked without being objected to by the other side, then it cannot be read in evidence as it does not fulfil the requirements of Section 294 of the Cr.P.C. But when once the requirement of Section 294 are fulfilled, there could be no difficulty in treating such document as substantive evidence in the case". It is wise to quote further the relevant portion of the judgement "Section 294 of Cr.P.C. requires the prosecutor or the accused as the case may be, to admit or deny the genuineness of the document sought to be relied against him at the outset in writing and on his admitting or indicating no dispute as to the genuineness of such document, the Court is authorised to dispense with its formal proof thereof. In fact, after indication of no dispute as to the genuineness of a document proof of document is reduced to a sheer empty formality".
On a close and careful perusal the provision of Section 294(1) coupled with the aforesaid decision of law mentioned above, it is quite evident that there must be proper tender of the document to the party to admit or dispute the genuineness of the document sought to be used against him. The provisions of law containing section 294 as well as aforesaid decision, make it crystal clear that there must be some sort of indication at the outset as to the acceptance or refusal of the genuineness of such document. In the present case,, we do not find anything on record to show that the defence was called upon to admit or deny the genuineness of the post mortem report. On the other hand, Order No.88 dated 08.03.2001 of the case record reveals that the prosecution filed an application on 07.03.2001 for getting the post mortem report marked as exhibit. It further appears from the said order that objection was raised by the defence in getting the post mortem report marked as exhibit. This objection raised by the defence in getting the post mortem report marked as exhibit does not at all denote that the genuineness of the post mortem report is undisputed. However, learned Court below in the said order observed that despite due diligence the attendance of the Doctor could not be procured and, therefore, under provision of Section 32 and 35 of the Evidence Act read with Section 294(3) of Cr.P.C., the post mortem report was marked as Exhibit 7. Law does not envisage the acceptance of post mortem report as substantive evidence when genuineness of the document is disputed. If for argument sake, filing of the application by the prosecution to get the post mortem report as exhibit is taken as a tender to the defence in order to call upon him to admit or dispute the genuineness of the same, then raising objection by the defence for to getting the document marked is sufficient enough to denote that the defence did not accept the genuineness of the post mortem report and admit the same as substantive evidence. In absence of valid tender of the post mortem report to the defence and in view of raising objection by the defence on the application filed by the prosecution to get the PM report marked as exhibit, we are constrained to hold that the post mortem report cannot be admitted into substantive evidence. Therefore, it would be precarious to admit the post mortem report as substantive evidence in view of non-compliance of Section 294(1) and Section 294(3) of Cr.P.C. and raising objection by the defence against the petition filed by the prosecution for getting PM report as exhibit is indication of non-compliance.
It is true that marking of a document does not include the proof of the contents thereof. The defence does not admit the contents of the post mortem report. The defence did not get any opportunity to cross-examine the Doctor who held post mortem examination. Therefore, we are unable to accept the admissibility of P.M. report as substantive evidence.
But the prosecution has examined the two vital eye witnesses whose evidences are essential to unfold of the prosecution case. This salutary principle of the criminal trial has been upheld by Hon'ble Apex Court in a decision reported in AIR 1971 SCC 1586 (State of U.P. and Anr. vs. Jaggo @ Jagdish and Ors. as well as in the decision reported in 1954 SCR 475 (AIR 1954 SC 51). Therefore, the substantive evidences of P.W.5 and P.W.6 strengthened by the substantive evidence of learned Magistrate P.W.8 in the matter of TI Parade establish the prosecution case beyond all reasonable doubts. Moreover, the mother of the deceased who was taking dinner along with her husband and deceased son has categorically narrated the scene of occurrence. Her evidence in examination-in-chief is that on 2nd Agrahayan, Saturday, about 3 and ½ years ago her son was murdered at about 8.30 and 9.30 p.m. while she herself along with her husband and son were taking meal in their kitchen. She has also stated that one person struck on the head of her son who fell down, but she could not recognise who assaulted her son. This part of evidence remains unchallenged. No cross-examination has been made by the defence. But P.W.5 and P.W.6 have also stated this incident and identified the assailant. The entire evidences coupled with their identification in TI Parade remain totally unshaken and the trustworthiness and credibility of these evidences are not at all shrouded with doubt. The non-examination of Hasirani Chaudhuri, the mother of Manik Chaudhuri is not at all fatal to the prosecution case on the face of examination of two other vital eye witnesses coupled with the evidence of learned Magistrate (P.W.8) who held TI Parade.
Reliance may be placed on Section 167 of the Evidence Act. Section 167 of the Evidence Act provides: "The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it shall appear to the Court before which such objection is raised, that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision". Section 167 of the Evidence Act applies where inadmissible evidence has been admitted or where evidence which according to rules contained in the Act should have been rejected, has been improperly admitted. Such improper reception or rejection of evidence shall not of itself be a ground for new trial or reversal of any decision in any case, unless in the opinion of the Court before which such objection is raised, substantial wrong or miscarriage of justice has been thereby occasioned. If the Court considers that after leaving aside the evidence that has been improperly admitted, there is enough evidence on record to justify the decision of lower court, no court of appeal should set it aside. If it is found that the remaining evidence are sufficient to justify the decision, then Court should not arrive at for reversal of decision. Therefore, the rejection of P.M. report does not justify the reversal of decision of trial Court in view of sufficiency of residuary evidence of prosecution already elucidated above.
Learned counsel for the appellant has finally submitted that prosecution has not been able to prove any motive behind the murder of the deceased Krishnadhan Chaudhuri by the appellant, Kabir Sk. It is further submitted that there was a dispute between Manik Chaudhuri and the deceased in the matter of mixing of Manik Chaudhuri with one girl namely Ranu of bad reputation and out of the said grudge Manik Chaudhuri murdered the Krishnadhan Chaudhuri. This verbal submission finds no place in the cross-examination of the prosecution witnesses. Moreover, both the eye witnesses clearly saw the assailant to deal blow over the head of the deceased by Dao in the light of the kerosene lamp. With regards to motive, learned public prosecutor has cited two decisions of Hon'ble Apex Court reported in AIR 1997 SC 2780 (State of Gujarat vs. Anirudh Singh and Anr.). Hon'ble Apex Court held that "motive gets locked upon into mind of the makers and it is difficult to fathom it". Hon'ble Court held that "if motive is proved that would supply a chain of links but absence thereof is not a ground to reject". In another decision reported in AIR 1976 SC 2499 (Molu vs. State of Haryana), it has been held " it is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes, the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye witnesses is creditworthy and is believed by the Court which has placed implicit reliance on them, the question where there is any motive or not becomes wholly irrelevant". In the light of the aforesaid decision of Hon'ble Apex Court, we are constrained to hold that on account of absence of proof of motive, the prosecution case cannot be brushed aside because the evidence of eye witnesses are trustworthy and credible.
Under the facts and circumstances and the provision and decisions of law cited above, we are satisfied to hold that the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. Therefore, judgement and order of conviction and sentence passed by learned trial court call for no interference and are hereby affirmed. We find no merit in the appeal.
The appeal fails and is dismissed.
The appellant is directed to serve the remaining part of sentence as per judgement and order of conviction passed by learned trial court.
A copy of judgement be made over to the appellant free of cost.
Lower court record along with a copy of judgement be sent down to the court concerned. Photostat copy of the judgement be supplied to the party, if applied for, after compliance and usual formalities.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Jayanta Kumar Biswas, J.)