Calcutta High Court (Appellete Side)
Krishna Das vs The State Of West Bengal on 11 August, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 164 of 2006
Krishna Das Vs. The State of West Bengal
With
CRA No. 625 of 2006
Ranjit Das @ Mintu Vs. The State of West Bengal
For the appellant in CRA 164 of 2006 : Mr. Jayanta Narayan Chatterjee,
Mr. Apalak Basu,
Mr. Dwipanjan Biswas,
Ms. Amit Biswas
For the appellant in CRA 625 of 2006 : Mr. Joy Sengupta,
Ms. Minati Gomes,
Mr. Arnab Sengupta,
Mr. Roni Chowdhury
For the State : Mr. Ranabir Roy Chowdhury
Heard on : 06.10.2015, 26.04.2016, 27.04.2016, 28.04.2016,
29.04.2016, 03.05.2016, 04.05.2016, 05.05.2016, 06.05.2016,
10.05.2016 & 11.05.2016
Judgment on : 11.08.2016
Md. Mumtaz Khan, J.
The subject matter of challenge in these appeals are the judgment, order of conviction and sentence dated January 30, 2006 and January 31, 2006 respectively passed by the District and Sessions Judge, 3rd Fast Track Court, Bichar Bhavan, Calcutta in Sessions Trial No. 1(12) 2000 arising out of Sessions Case No. 49 of 2000. By virtue of the impugned judgment appellants were convicted for commissioning of the offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one year with a direction of set off as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). They were, however, acquitted from the charge punishable under section 201/34 IPC.
The genesis of the case is the Amherst Street P.S. G.D. Entries Nos. 2758 and 2766 both dated December 19, 1999.
The prosecution case, in a nutshell, is discussed hereunder:-
On December 19, 1999 at about 6.45 hours P.W.17 received an anonymous telephonic information at Amherst Street P.S. that one gunny bag stained with blood with bad smell coming out from that gunny bag was lying abandoned in front of premises No. 121, Keshab Chandra Sen Street near Harijan Naba Yubak Sangha. Accordingly after diarising the said information in the P.S. G.D. Book, P.W.17 rushed to the spot along with force to ascertain the fact. On arrival at the spot P.W.17 found one gunny bag stained with blood partly covered with cotton wrapper (kantha) and tied up with ropes emitting foul smell was lying abandoned on the lane in front of premises No. 121/H/4, Keshab Chandra Sen Street near Corporation Water Tap behind Sitala Temple and people had already gathered at the spot. On cutting open the gunny bag in presence of the witnesses a dead body of an aged man wrapped up with white synthetic gunny bag bearing injuries on the abdomen, nose, cheeks, both hands and back of the shoulder and the intestine of the victim exposed through the big cut abdominal injury was found. The dead body was defaced due to cut injuries on his nose and cheek and none of the crowd gathered at the spot could recognize the deceased. Arrangement for taking photographs of the victim and the place of occurrence were made, alamats were seized, witnesses were examined and the dead body of the victim was sent to Calcutta Police Morgue for inquest as also post mortem examination.
Thereafter, on returning to the P.S. P.W.17 made another G.D. Entry in the P.S. G.D. Book and registered the case being Amherst Street P.S. Case No. 267 dated December 19, 1999 under Section 302/201 IPC against the unknown persons. Post mortem examination over the dead body of the victim was held at Calcutta Police Morgue on December 20, 1999 where the autopsy surgeon opined the death was due to the effects of the injuries mentioned in the PM report which were ante mortem and homicidal in nature and there was also evidence of attempt of strangulation by ligature.
During investigation involvement of appellants along with Prem Das @ Prema, and Bijoy Das transpired and accordingly appellant Ranjit Das @ Mintu (appellant in CRA 625 of 2006) was arrested on December 14, 1999 and Prema Das @ Prem Das was arrested on December 26, 1999 from his native village in Bihar and thereafter in pursuance of the statement of Prema Das @ Prem and being led by him one blood stained Nepala, the weapon of offence, (Mat. Ext. No. X) and other articles were recovered and seized from the concealed place inside the room of appellant Ranjit Das @Mintu.
Investigation of this case was thereafter taken over by Homicide Squad, Detective Department, Lalbazar. Alamats were sent to FSL for examination and reports. Prem Das @ Prema was found to be Juvenile by the Ld. Metropolitan Magistrate Calcutta and accordingly he was sent before the Juvenile Court. Thereafter on completion of investigation charge sheet being No. 34 of 2000 dated March 22, 2000 under Section 302/201/34 IPC was submitted against appellants Ranjit Das @ Mintu, Krishna Das and Bijoy Das by P.W.18 showing Bijoy Das and Krishna Das (appellant in CRA 164 of 2006) as absconder. As Prem Das @ Prema was a minor so a separate charge sheet was filed before the Juvenile Court where he faced the trial.
Charges were framed on December 18, 2000 under Section 302/34 IPC and 201/34 IPC against the appellant Ranjit Das @ Mintu only as other charge sheeted accused namely Krishna Das and Bijoy Das were absconding and thereafter trial commenced after he denied his involvement in the crime. Thereafter Krishna Das was arrested and as such a separate charge was framed against him on February 11, 2004 under Section 302/34 IPC and under Section 201/34 IPC and he also denied his involvement in the crime.
Prosecution examined 18 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellants under Section 313 Cr.P.C. learned court below passed the impugned judgment.
Mr. Jayanta Narayan Chatterjee, learned Advocate appearing on behalf of the appellant Krishna Das (appellant in CRA No. 164 of 2006) submitted that the impugned Judgment, order of conviction and sentence against the appellant Krishna Das cannot be sustained on the ground that there were discrepancies in between the ocular evidence and medical evidence with regard to the time of occurrence. He further submitted that credibility of the evidence of P.W.5, Goutam Das @ Tenia, a minor boy, is doubtful as he was under the custody of the police without permission of court and was compelled to make statements and as such no reliance can be placed on his evidence. He also questioned the discretion of the I.O. in withholding the statements of said witness recorded under section 164 Cr.P.C. According to Mr. Chatterjee, recovery of the weapon of offence was doubtful and more so appellant Krishna Das was not at all present when the alleged recovery was made and as such he can not be held responsible for the offence of commissioning death of the victim.
Mr. Chatterjee relied on the decisions of Prabhu Dayal vs. State of Delhi reported in 1986 CrLJ (Delhi) 383, Nanda Chatterjee vs. State of West Bengal and Ramesh Chandra Pain vs. State of West Bengal reported in 2015(4) CHN (Cal)533, Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra reported in (2008) 1 SCC (Cri) 733, Panchhi and others vs. State of U.P. reported in 1998 SCC (Cri) 1561 and an unreported judgment of this court in the matter of Shyamal Chatterjee vs. State of West Bengal delivered on October 16, 2015 in CRA 643 of 2010 in support of his above submissions.
Mr. Joy Sengupta, learned advocate appearing on behalf of the appellant Ranjit Das @ Mintu (appellant in CRA No. 625 of 2006) also submitted that there were contradictions of material dimension in between the ocular evidence of P.W.3 and P.W.5 with that of medical evidence namely, the PM report with regard to the time of occurrence. According to him, identification of the dead body was suspected as P.W.7, P.W.8, P.W.10, P.W.12 and P.W.14 did not identify the dead body at all though they claim that they knew everybody of the locality and P.W.5 was not taken to the morgue to identify the victim and also raised doubt about the identity of P.W.16 to be the son of the victim. According to Mr. Sengupta, identity of the person who informed the police about lying of a gunny bag was not ascertained by the investigating officer nor the source, who identified the room in question as also the appellant Ranjit Das and Gautam Das, came forward to depose before the court. According to him evidences of P.W.3 as also P.W.5 were not reliable as they did not disclose to any one before December 24, 1999 and even statement of P.W.5 recorded under section164 Cr.P.C was withheld by the prosecution and as such adverse presumption can be drawn. According to him seizure was doubtful being based on the statement of a minor. According to Mr. Sengupta charge against the appellant Ranjit Das @ Mintu was not proved beyond all reasonable doubt. According to him ld. trial court did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment, order of conviction and sentence against the appellants.
Mr. Sengupta relied on the decision of Rupchand Chindu Kathewar vs. State of Maharashtra reported in (2011)1 SCC (Cri) 926, Harikishan vs. State of Haryana reported in (2010)2 SCC (Cri) 991, Sahadevan vs. State of Tamil Nadu reported in (2012)3 SCC (Cri) 146 and Krishna Kanwar @ Thakuraeen vs. State of Rajasthan reported in (2004)2 SCC 608 in support of his above submissions.
Mr. Ranabir Roy Chowdhury, learned advocate representing the state submitted that case of the prosecution has been proved by P.W.3 an independent witness of the locality who saw the appellant and was corroborated by P.W.5 and they were cross-examined at length by the offence but their evidence remained unshaken. According to Mr. Roy Chowdhury, the room where the incident took place was sealed on December 24, 1999 and it was opened on January 3, 2000 and the Nepala, the weapon of offence was recovered on being led by the accused Prema @ Prem Das who also implicated himself along with the appellants. According to him FSL report clearly showed presence of human blood and matching of group of blood found on the Nepala with that found on the sacks and other seized articles. According to Mr. Roy Chowdhury, prosecution had been able to prove the case against the appellants beyond all reasonable doubt.
Mr. Roy Chowdhury relied on the decisions of Gangabhavani vs. Rayapati Venkat Reddy and others reported in (2014)6 SCC (Cri) 182, Vijay Pal vs. State (GNCT) of Delhi reported in 2015(4) SCC 749 and Sushil Sharma vs. State of NCT of Delhi reported in 2014 (4) SCC 317 in support of his submissions.
We have considered the submissions advanced by learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of the prosecution witnesses and other materials on record for examining the propriety of the impugned judgment, order of conviction and sentence passed by the ld. Court below.
The learned Court below took into consideration the entire circumstances leading from the place where from the dead body of the victim bearing sharp cut injuries kept concealed in a gunny bag was found, inquest report, P.M. report, recovery of blood stained weapon of offence namely Nepala at the instance of Prem Das @ Prema, one of the co-accused who was tried before a Juvenile Court, FSL report clearly showing presence of human blood and matching of group of blood found on the Nepala with that found on the sacks and other seized articles, evidence of eye witness and other material witnesses as also the motive to eliminate the victim to arrive at a conclusion that it was the appellants who along with other miscreants in furtherance of their common intention caused the death of the victim and thereby committed an offence punishable under section 302/34 I.P.C.
It was evident from Ext.20 that on the basis of the information received on December 19, 1999 at 06.45 hrs by P.W.17 at the Amherst Street P.S. from an unknown person about lying of a gunny bag stained with blood emitting foul smell near Harijan Naba Yubak Kendra he went to the spot for holding inquiry and found one gunny bag stained with blood tied with a rope covered with torn cotton wrapper lying on the backside of Sitala Mandir near the Corporation water tap in front of 121/H/4, Keshab Chandra Sen Street, Kolkata near Harijan Naba Yubak kendra and on cutting open the gunny bag in presence of the witnesses a dead body of an old person with several injuries marks was found lying inside it. After making enquiry he then returned back to the P.S. and drawn up the FIR (Ext.23) on the basis of his enquiry report. This also found corroboration from local people namely P.W. Nos. 4, 5, 6, 7, 8, 10, 12 and 14.
From the evidence of doctor, P.W.13, as also the PM report (Exbt.19) it was evident that on examination over the dead body of the victim on December 20, 1999, doctor found eight injuries on the person of the deceased viz;
(1).One incised wound (penetrating) - 7'5'' x 2'' (in the widest Part) x abdominal cavity deep was placed over anterior abdominal wall. On dissection and tracing the tract of the wound it was found to have cleanly cut anterior abdominal wall structure. Peritoneum, intestine (small) - through and through at three (3) places and misentry at places and finally terminated by making an incised cut over spleen in its medial surface measuring 1.5'' x 0.5'' x spleen substance deep. Evidence of protrusion of ceils of intestine through the wound and approximately 1.5 liters of fluid and clotted blood with semi-digested food particles noted in the abdominal cavity.
(2).One chop wound - 2'' x 0.8'' x bone deep over tip of nose with tip of nose found missing with incised clean cut margin including clean cut of nasal cartilages and bones over tip and base with bruising of the margin.
(3). One incised wound 2'' x 0.2'' x S.C. tissue deep placed obliquely on the dorsal aspect and lateral aspect of left hand. (4).One incised cut 1.5" x 0.2" x s.c. tissue deep on left cheek. (5).One incised cut 3" x 0.3" x s.c. tissue on the dorsum of right hand placed obliquely.
(6).Bruise 2" x 2.5" over right side of forehead extending to right frontal eminent.
(7).One abrasion 1" x 1.5" on the back of right shoulder region. (8).One ligature mark measuring 14" x 1", transversly circular, continuous, placed low down in the neck with base of the ligature mark was pale with soft reddish margin. The ligature mark corresponds with ligature materials found in situ in neck with two fixed knots.
He also found rigor mortis in the lower limb. In his opinion death was due to the effects of injuries as noted above, ante mortem and homicidal in nature and there was also evidence of attempt of strangulation by ligature. According to the doctor, the injury nos. 1 and 8 singularly and all the injuries were collectively sufficient enough to cause the death in ordinary course of nature. He also opined that the injury nos. 1 to 6 might have been caused by weapons with sharp cutting edges and with pointed tip with handle in each for sustaining and to have a proper grip, the injury nos. 6 and 7 might have been caused by hard weapon or object, the injury no. 8 might have been caused by a 'Gamcha' or any other material of similar nature used as ligature material. On being shown the Nepala (Mat. Ext. X) he stated that the injury no. 1 to 5 might have been cause with such type of weapon or any weapon in similar nature and the injury nos. 6 and 7 might have been caused by the handle of this weapon or any weapon of similar nature. Defence did not dispute or deny the injuries found on the person of the victim and the cause of his death. Furthermore, during cross- examination P.W.13 clearly stated that the death of the victim in his opinion was due to the effects of injuries which was ante mortem and homicidal in nature and was sufficient to cause death in ordinary course of nature and there was also evidence of attempt of strangulation by ligature which might have been attempted after infliction of the injuries.
Regarding question of identification of the dead body, we find from the evidence on record that P.W.3, a resident of that premises, and P.W.5, a co-villager of the victim who used to reside in the room of Baldeb Das where victim also used to spend his night along with appellant Ranjit Das @ Mintu and others, identified the victim Bagula Majhi on seeing his photographs (Mat. Exts. I and V) which were taken by P.W.2, a constable attached to Detective Department photograph section Lalbazar. P.W.3 was not present when the dead body was found in the lane and admittedly the minor boy P.W. 5 was not taken to the morgue by the I.O. for identification of the dead body. P.W.7, a resident of that locality and witness to the recovery of the dead body in a gunny bag and also witness to the seizure of the wearing apparels of the deceased, gunny bag, kantha, napkin etc., also identified the victim on seeing the photograph (Mat. Ext. I). It was evident from the evidence on record including the P.M. report that several injuries were found on the person of the deceased, intestine protruded through the stomach injury, there was foul smell and his face was also disfigured due to chopping of nose and cut injuries on cheeks which appeared to be the probable reason for non identification at the spot by the local people and only after proper seeing the photographs of the deceased it was identified by the locals. Non identification of the dead body at the P.O. at the relevant time by P.W7, P.W.8, P.W.10, P.W.12, P.W.14 can not be a ground to disbelieve that it was not that of Bagula Majhi. It was evident from the evidence of P.W.16 that he identified the dead of the victim in presence of P.W.17 to be that of his father Bagula Majhi and he also cremated the dead body of his father. According to him also his father Bagula Majhi was working as labour/coolie at Posta Bazar and was residing in the house of Baldeb Das, a neighbour of his native village, at premises no.121/H/3, Keshab Chandra Sen Street, Calcutta-9 where Baldeb Das was residing along with his sons Rajendra Das and Ranjit Das @ Mintu as also employees Prema Das and Goutam Das @ Tenia. This had also been corroborated by P.W.4, landlady, of the adjoining premises. Defence had not dispute or denied that the dead body was not of Bagula Majhi but by putting suggestion to P.W.16 only tried to prove that he was not the son of victim Bagula Majhi to which he did not agree. So, there was no reason to doubt that the dead body was of Bagula Majhi, a porter of Posta market and he was staying in the room of his co-villager Baldeb Das at premises no.121/H/3, Keshab Chandra Sen Street, Calcutta-9.
Now with regard to the contention of the appellants that in view of discrepancies in between the ocular evidence and medical evidence with regard to the time of occurrence there was doubt that P.W.3 and P.W.5 had at all witnessed the commission of offence, we may recollect the time honoured proposition of law laid down by the Hon'ble Supreme Court in the matter of State of Punjab vs. Jagir Singh, Baljit Singh and Karam Singh reported in (1974) 3 SCC 277 that though the benefit of reasonable doubt should go in favour of the accused, the Court should not reject the evidence which is ex facie trustworthy and reading the same as a whole leads to a ring of truth. The relevant portion of the above decision is quoted below:-
"23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
(Emphasis supplied) In the matter of Solanki Chimmanbhai Ukabhai vs. State of Gujrat reported in (1983) 2 SCC 174 it has been observed by the Hon'ble Apex Court that testimony of eye witnesses can not be thrown out on the ground of alleged inconsistency in between it and the medical evidence. The relevant portion of the above decision is quoted below:
"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries:
taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
In the matter of Gangabhavani vs. Rayapati Venkat Reddy and others reported in 2014(6) SCC (Cri)182 it has been held by the Hon'ble Supreme Court that the opinion given by a medical witness need not be the last word on the subject and where the eye witnesses account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The relevant portion of the above decision is quoted below:
" 7.It is a settled legal position that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. "It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'".
Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility."
Similarly in the matter of Vijay Pal vs. State (GNCT) of Delhi reported in 2015(4) SCC 749 it has been observed by the Hon'ble Apex Court that where the eye witnesses account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities can not be accepted as conclusive. The relevant portion of the above decision is quoted below:
"13) .............. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis--vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weightage should be given to the evidence of the doctor who has conducted the post- mortem, as compared to the statements found in the textbooks, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self- contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court.
If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive."
In the instant case, as it appears from the evidence of P.W.5 as also P.W.3, the incident in question took place in the night of December 17th/18th, 1999 at 02.00 hrs. According to P.W.5, Baldev Das is his uncle by village relation and previously he used to reside in his room at 123/H/3, Keshab Chandra Sen Street and in that room Baldeb Das his sons Ranjit @ Mintu and Rajendra Das, Bagula Majhi and others used to reside. Bagula was working as "Mutia" and he used to keep money with Mintu Das and two years back in winter season, on Friday, at about 9.30 P.M. Bagula demanded Rs. 10,000/- from Mintu which he deposited with him as he wanted to go to his native village to which Mintu told him that he will not be able to pay such money as so much money was not with him. Bagula then told him that if money is not paid then he will go to the P.S. and also tell to the Mohalla men. Mintu then told him that he has friends at 'Soar Mari' Tangra and he is going there for collecting money and saying this Mintu left the place. It was 10.30 at night. Then he and Bagula went to sleep in that room. At about 2 A.M. in the night Mintu asked Prema to open the door and he also woke up. Prema opened the door. He then saw Mintu was talking with a Mahalla man. Then Mintu, Bijoy & Krishna entered inside the room and thereafter Mintu bolted the door from inside. Bijoy then tied the mouth of Bagula Majhi by a napkin. Mintu then told Prema to catch hold the hands of Bagula which he did. Mintu also caught hold the legs of Bagula Maji. Then Krishna with the help of a knife assaulted Bagula in his belly as a result belly material came out. On seeing this Prema let loose his hands. Krishna then assaulted Bagula on his hand, mouth etc. Bagula then made a sound. At that time Bijoy tied his neck by napkin. Due to this Bagula died. Thereafter dead body of Bagula was tied by Lungi, half pant, gangi etc. with plastic and put the same in a gunny bag and tied its mouth. The body was then kept in the Macha inside the room along with the blood stained knife. When he cried, Bijoy, Mintu and Krishna told him that if he tell to Mahalla men they will kill him. Thereafter Bijoy and Krishna left the place in that night. Mintu then began to burn "Dhupkathi" from the next morning inside the room where Bagula had been murdered. On the next day night (Saturday) Bijoy and Krishna again came to that room and met Mintu and started discussing how to dispose of the dead body. At 3.00 night when he woke up from his sleep he found that Mintu, Bijoy, Mintu and Krishna were taking out the dead body from the room and after that only Mintu returned into the room. On the next day i.e. on Sunday morning at 6 a.m. there was a shouting in the Mahalla regarding keeping of blood stained gunny bag. The gunny bag was kept near the tap which is near the Sitala Temple. Then police came and opened the gunny bag and saw the dead body of Bagula. On seeing this he entered into the room. Mintu and Prema left the place. Police left the place after taking the dead body. Thereafter 4/5 days Mintu came at night and told that in the next morning he will go to his native place but on the same night he was arrested by police and after arresting him locked the door. There after police took his statement after interrogating him. He identified both the appellants in course of his examination before court and also identified the seized material namely gunny bag in which Bagula's dead body was kept, wearing apparels used by Bagula at the time of incident, napkin used in pushing in the mouth of Bagula and the weapon by which Bagula was killed etc. He was cross- examined by the defence at length but his evidence remained unshaken.
According to P.W.3, also a resident of 123/H/3, Keshab Chandra Sen Street, on 17th/18th December, 1999 at about 2.00 A.M. when he was going for latrine at the common toilet, he saw Ranjit Das, Bijoy Das and Krishna Das were standing in front of the door of Baldeb Das to knock at the door of Baldeb Das asking Prema Das to open the door. Then, he asked them where from they came at such night, then Mintu Das told him that there was an urgent work at Sealdah, so they came here and knocked the door. Then Prema Das opened the door and he saw Bagula was lying on the ground and Prema and Tenia were standing thereon. Mintu Das then entered the room with his two friends and closed the door. He then went to the latrine but after some time when he came out from the latrine he heard the roaring sound from the house of Baldeb Das. On 19th Morning he went for his work at Rajabazar and when return back at about 6/ 7 p.m. he saw some persons near the mahalla and heard from them that a dead body of an old man was found lying near the tap in the morning. Thereafter, on December 24, 1999 he came to learn from Tara Dutta, Goutam that the dead body was of Bagula Majhi and also heard from Manoj sahu, Tara Dutta, Goutam Nag etc. that Mintu Das was arrested. He identified Mat. Exts. I, to be the photograph of Bagula Majhi. He also identified both the appellants on dock.
It also appears from the evidence of the P.Ws. on record that after recovery of the dead body bearing sharp cut injuries on the abdomen, face, hand, chopping of nose and ligature mark etc. it was sent to the Kolkata Police morgue for postmortem examination. As per the P.M. report (Ext.19) dead body was despatched on December19, 1999 at 9.15 hrs. and it arrived at the dead house on December 20, 1999 at 2.40 P.M. and postmortem examination was held on the same date at 4.10 P.M. So, apparently post examination was held after about 60/62 hrs. of death of the victim. P.W.13, the doctor who held postmortem examination found rigor mortis in the lower limb of the deceased. According to him rigor mortis usually starts 2 to 3 hours after death and usually remain present all over the body up-to 18 to 20 hrs. in winter and approximately 18 hours in summer and then it gradually disappear taking 36 hours in winter and 24 hours in summer but it is approximate and variable. He also opined that decomposition usually starts after 24 to 30 hours in winter in our city at Calcutta provided the dead body was not kept in cool chamber and since there was rigor mortis present in the lower limb he did not mention anything regarding the decomposition. It was not in dispute that it was winter season and dead body was sent to the morgue for postmortem examination. Learned court below took into consideration the entire circumstances as also the fact that in Kolkata Police morgue dead bodies are kept in cool chambers, so there was no chance of decomposition and as such there was no inconsistency about the time of death. Be that as it may, according to the doctor 36 hours of time of disappearance of rigor mortis in winter is approximate. It was evident from the evidence of P.W.5 that he witnessed the incident of causing death of the victim by the appellants and other charge-sheeted accused persons. The injuries as also the cause of death of the victim as mentioned in the post mortem report and nature of weapon used by the appellants for commissioning of offence were corroborating with the deposition of aforesaid eyewitness, namely, P.W. 5. Thus, we find that P.W.5 had fully corroborated the prosecution case and his statements-in- chief remained unshaken during cross-examination and nothing was brought on record to discredit him and as such there was no reason to discard his evidences. The evidence of above eye witness had also been fully corroborated by P.W.3. Their evidence on oath appeared to be trustworthy and believable and as such there was no reason to discard their evidences. Therefore, our interference with the impugned judgment is not required on the above ground.
Regarding credibility of the evidence of P.W.5, Goutam Das @ Tenia, a minor boy and withholding of his statements recorded under section 164 Cr.P.C., we find from the evidence of the P.W.17, the investigating officer, that when he arrested the appellant Ranjit Das from his room after examining minor boy Goutam Das he did not find anyone else in that room and as such he sent minor Goutam Das @ Tenia to the P.S. under escort for his safe stay. It may be true that no permission was obtained from court for keeping the minor Goutam Das @ Tenia at the P.S. but fact remains that Goutam Das @ Tenia was a witness only and not a juvenile in conflict with law nor he was an abandoned child. It was evident from his evidence that after seeing the incident when he cried he was threatened by the appellants with dire consequences, if he disclosed the incident to para people. He even did not dare to say anything to anybody due to fear, as was evident from his evidence made during cross-examination. So, providing him safe custody in such hostile situation was quite natural. Defence by putting suggestion to P.W.5, without bringing any iota of evidence, tried to prove that he is a pocket witness of police and deposed falsely as per instruction of police to which he denied. It may be true that the statements of P.W.5 recorded under section 164 Cr.P.C. was not produced by the prosecution on the ground of some deviation from his earlier statements recorded under section 161 Cr.P.C. but it is well settled proposition that statements of a witness recorded under section 164 Cr.P.C. is not a substantive piece of evidence and it can be used only for the purpose of corroboration or contradictions. There is no doubt that a person making a statements before a Magistrate under section 164 Cr.P.C. should speak the truth, but if he does not, the least he can do is to tell the truth when he subsequently goes into the witness box. Only because of withholding of the statements recorded under section 164 Cr.P.C., his statements made before the court on oath standing on witness box and duly tested in cross-examination can not be disbelieved. More particularly nothing was brought on record by the defence to show any ill-will or enmity in between P.W.5 and the appellants rather evidence on record shows cordial relation between them. Nothing also brought on record to show any iota of doubt about his capacity to depose nor the defence could be able to bring our notice to impeach his testimony. On other hand it has already been found out that the medical evidence corroborated his oral evidence. Therefore, our interference with the impugned judgment is not required on the above ground.
With regard to the issue relating to the recovery of the weapon of offence and using same in commissioning of murder of the deceased by the appellants, we find from the evidence of the investigating officer, P.W.17, that he had vividly narrated the incident relating to the recovery of the weapon of offence leading to statements of one of the miscreants and on being led by him. He has specifically stated that on December 24, 1999, he with source information went to 121/H/3, Keshab Chandra Sen Street, Kolkata where the source identified him a room of that house which was bolted from inside. He then knocked at the door of the room and Ranjit Das @ Mintu came out. He also saw P.W.5. there and thereafter on examining P.W.5 revealed direct complicity of Ranjit Das @ Mintu, Krishna Das, Bejoy Das and Prem Das in the commission of the murder of the victim. Accordingly he arrested Ranjit Das @ Mintu and sealed and locked the room. He thereafter took attempt to apprehend the other miscreants and on December 26, 1999 he went to Bihar in search of the miscreants and arrested the accd. Prem Das @ Prema therefrom and on December 27, 1999 he came back to Amherst P.S. with the accd. Prem Das @ Prema Das and produced him before the A.C.M.M., Calcutta. On January 3, 2000 he interrogated accd. Prem Das @ Prema and recorded his revealing statement and pursuing to his statement (Ext.25) and being led by accd. Prem Das @ Prema accompanied went to 121/H/3, Keshab Ch. Sen St. Kolkata - 9 at the room of accd. Ranjit Das and after reaching there he opened the sealed lock of the room in presence of P.W.4 and P.W.6, both of same address. Accd. Prem Das then led them along with witnesses inside the room and pointed out towards the wooden bunk of that room and therefrom Prem Das took out a blood- stained Nepala which was kept under the rexin sheet on the Bunk and gave it to him in presence of the witnesses. He then seized the blood- stained Nepala (Mat. Ext.X) and other articles by a seizure list (Ext. 24) on which one witness put his L.T.I. and one witness signed and the accd. Prem Das put his L.T.I and thereafter he packed, labelled and sealed the same in presence of the witnesses who signed on the labels. P.W.4 as also P.W.6 also fully supported the factum of seizure by P.W.17 on January 3, 2000. The blood stained weapon of offence (Mat. Ext.X) and other blood stained articles were kept concealed in the room of Baldeb Das on the Bunk by the miscreants was evident from the evidence of P.W.5, the eye witness. FSL report clearly showed presence of human blood and matching of group of blood found on the Nepala with that found on the gunny bag where dead body was kept and some other seized articles. It is true that recovery of the weapon of offence was not made in the presence of the appellants but from the evidence of the eye witness, P.W.5, it was evident that he vividly narrated the presence of these appellants along with other miscreants and parts played by them in commissioning of the offence. Nothing had been brought on record to show that the appellants were not present in the room on the relevant date and time of incident and/or that their presence in the room was for some other purpose. It would not be out of place to mention here that Prem Das @ Prema was tried before Juvenile court where he was convicted for commissioning of murder of Bagula Majhi in collusion and conspiracy with other accused person and the said conviction was upheld by this court on appeal in CRA No.164 of 2001 reported in (2006)1 CAL LT 142(HC).
The injuries sustained by the deceased as a result of assaulting him by the appellants with the participation of other miscreants were corroborated by the post mortem report of dead body of the deceased. In Raju @ Narinder Kumar vs. State of Haryana, reported in (2011) 14 SCC 636, the Apex Court took into consideration the fact of recovery of weapon of offence at the disclosure of the accused, nature of injury sustained and the post mortem report to arrive at a conclusion that both the Court below committed no error in awarding life imprisonment to the appellant. Relevant portions of the above decision are quoted below:-
"13. The injuries which were caused on the vital parts of the deceased stand fully corroborated from the evidence of PW 3 Dr Benu Gupta, who had performed the post-mortem on the three dead persons. The injuries on the persons of the deceased are at the same vital parts of the bodies, described by the aforesaid witnesses. Thus their ocular evidence is fully corroborated with the medical evidence.
14. It is also to be noted that the weapon of offence (knife) was recovered at the disclosure of the appellant, which was kept concealed in a heap of rubbish in the corner of the residential house. The said statement was duly signed by the appellant and was attested by the prosecution witnesses. At the time of recording of the evidence of PW 3 Dr Benu Gupta, the said knife was shown to her, who categorically deposed that with the aid of the said knife, the nature of injuries sustained by all the three deceased, could be caused. There is consistency in the evidence of the prosecution witnesses. There is no reason to doubt their credibility or trustworthiness."
In Bakhshish Singh vs. State of Punjab & Ors., reported in (2013) 12 SCC 187, the Hon'ble Supreme Court took into consideration the testimony of the doctor who had prepared the post mortem report that the injuries of the deceased had been caused by a sharp-edged weapon, to arrive at a conclusion that it was quite consistent with the use of dagger for the offence. The relevant portion of the above decision is quoted below:-
"27. It was further urged that the dagger which was produced in the court could not have been used as an instrument for the crime because the dagger was not shown to the doctor during post-mortem examination and the doctor has only stated that the injuries could have been through the sharp-edged weapon given in the court. We find from the testimony of the doctor that he deposed that the injuries were caused by a sharp-edged weapon, which is quite consistent with the use of dagger for the offence."
On perusal of the evidence on record, particularly the evidence of P.W.5 who was an eye witness to the occurrence, we find that the appellants took active part in commission of murder of the victim Bagula Majhi in the room of Baldeb Das where the victim used to spend his nights. The statements of P.W.5 was sufficiently corroborated from surrounding facts and circumstances as revealed from the deposition of several witnesses examined by the prosecution and that apart recovery of the weapon of offence and the FSL report lends sufficient support to the prosecution case against the appellants.
In the instant case the learned trial Court took into consideration the evidence of eyewitnesses, sufficiently corroborated from surrounding facts and circumstances as revealed from the deposition of several witnesses examined by the prosecution, the injuries detected on the body of the deceased in course of preparing surathal report, the injuries and cause of death of the victim as recorded in the post mortem report, the evidence of the doctor concerned, weapon and other blood stained articles recovered and seized leading to the statements and being led by one of the co-accused Prem Das @ Prema from the room, where victim used to spend his nights, which had been produced before the Court during trial together with seizure lists, FSL report to arrive at a conclusion that the aforesaid weapon had been used by the appellants for commissioning the offence under reference. The motive behind such gruesome killing as narrated by P.W.5 and corroborated by P.W.16 was also taken into consideration by the learned trial Court. We do not find any impropriety in the decision making process of the learned trial Court in this regard.
In view of the facts and circumstances involved in this case the decisions of Prabhu Dayal vs. State of Delhi (Supra), Nanda Chatterjee vs. State of West Bengal and Ramesh Chandra Pain vs. State of West Bengal (Supra), Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra (Supra), Panchhi and others vs. State of U.P. (Supra) and an unreported judgment of this court in the matter of Shyamal Chatterjee vs. State of West Bengal (Supra), Rupchand Chindu Kathewar vs. State of Maharashtra (Supra), Harikishan vs. State of Haryana, Sahadevan vs. State of Tamil Nadu (Supra) and Krishna Kanwar @ Thakuraeen vs. State of Rajasthan (Supra) do not help the appellants due to distinguishable facts and circumstances of those cases.
Therefore, taking into consideration the entire facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed herein above.
We, therefore, dismiss both the appeals and affirm the conviction and sentence imposed on the appellants.
Copy of this judgement along with the lower court records be sent down to the trial court forthwith for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)