Calcutta High Court (Appellete Side)
Dal Bahadur Gurung vs The State Of West Bengal on 31 July, 2015
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
CRIMINAL APPEAL NO. 314 OF 2001
Dal Bahadur Gurung
Vs.
The State of West Bengal
For the appellant : Mr. P.S. Bhattacharya
For the State : Mr. Manjit Singh
Mr. Pawan Kumar Gupta
Herd on : 26.06.2015
Judgment on: 31 .07.2015.
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated 19.12.2000 and 20.12.2000 respectively passed by the learned Additional Sessions Judge, Darjeeling, in Sessions Case No. 14 of 1999. By virtue of the impugned judgment and order learned Additional Sessions Judge, Darjeeling convicted the appellant u/s 302 I.P.C for having committed the murder of his father and awarded him sentence to suffer imprisonment for life and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for further period of six months and in the event of realisation of fine, 75% of the same shall be paid to the widow of the deceased, Krishna Bahadur Gurung.
The prosecution case, in brief, is as follows:-
On June 13th, 1998 at 20.15 hrs. P.W.7 lodged a written complaint at the Rangli Rangliot P.S., district Darjeeling stating therein that on that day at 15.30 hrs. his brother-in-law, Krishna Bahadur Gurung viz; the victim was hit by his son/appellant by an axe at his house at lower Lamahata Busti causing his death on the spot and the said incident was reported to him by one of the neighbour and appellant's mother.
On receipt of that complaint a case being Rangli Rangliot P.S. case No. 11/98 dated 13.06.98 under Section 302 IPC was started against the appellant by P.W.10 and investigation ensued and thereafter on completion of investigation he submitted charge sheet under Section 302 IPC against the appellant. Charge was framed on September 10th, 1999 against the appellant under Section 302 IPC and trial commenced after the appellant pleaded not guilty to the charge.
Prosecution examined 10 witnesses including appellant's mother, maternal uncle, younger brother, wife besides the doctor who conducted post mortem examination, Judicial Magistrate who recorded the statement under Section 164 Cr.P.C. of the complainant, the constable who took the dead body for post postmortem examination and in whose presence inquest was made and the I.O.
and also produced and proved the complaint, formal FIR, rough sketch map with index of the P.O., statement recorded u/s 164 Cr.P.C., seizure lists, inquest report, postmortem report, FSL report, etc. which were marked Exbts. 1 to 10 and in addition to that one axe, blood stained earth, control earth, polythene bag and wearing apparels of the deceased which were marked Mat. Exbts. I to VI.
Thereafter on completion of trial and after examination of the appellant u/s 313 Cr.P.C. Ld. Court below found the appellant guilty of the offence u/s 302 IPC and accordingly convicted and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for further period of six months.
It is submitted by the Ld. Advocate appearing on behalf of the appellant, that the impugned judgment and order of conviction and sentence cannot be sustainable in law for the following reasons:-
1. There is no eyewitness to the incident and the entire case is based on extra judicial confession which cannot be the sole basis for conviction.
2. As per the FIR one neighbour and mother of the accused/appellant informed the incident to the complainant but the name of the neighbour has not been given in the F.I.R. Complainant has also deposed that on the relevant date appellant came to his house and told him about killing of his father but this has not been mentioned in the FIR.
3. PW8 has deposed that Voju and Motilal besides six/ seven persons were present when the appellant reported her about killing of his father but Voju & Motilal have not been examined by the prosecution.
4. The entire evidence of the prosecution is based on the statement of PW7 and PW8 who are brother-in-law and wife of the deceased and are interested witnesses, so cannot be relied on.
5. P.W.10, the I.O. has not stated who identified the weapon of offence and the reported witnesses to the seizure have also not supported the factum of seizure.
6. The blood group of the stains appearing on the axe, wearing apparels and controlled earth has not been determined as per the FSL and serological test report.
Mr. P.S. Bhattacharya, the learned Advocate for the appellant also submitted that for the sake of argument even if it is accepted that the appellant struck his father with an axe resulting in his death, there is no evidence on the record to show that the appellant had any intention to kill his father, so at best provision of section 304 part-II I.P.C will be applicable and not section 302 I.P.C. According to Mr. P.S. Bhattacharya, the learned Advocate for the appellant, learned Court below did not take into consideration the aforesaid aspects of the matter while passing the impugned judgment and order of conviction and sentence. Mr. Pawan Kumar Gupta,learned Advocate representing the State submitted that both the prosecution witnesses relied on by the prosecution namely PW7 and PW8 are also related to the appellant being his maternal uncle and mother and as such they cannot be said to be interested persons.
Learned Advocate representing the State fairly submitted that there is no eyewitness to the occurrence and the entire case is based on the extra judicial confession of the appellant and there is no evidence on record showing any motive behind the murder of the victim.
We have considered the submissions made by the learned Counsels for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses, statement recorded u/s 164 Cr.P.C., the materials on record including the FIR, inquest report, rough sketch map, seizure list, PM report, FSL and serological test report, charge sheet, charge framed amongst other materials for examining propriety of the impugned judgment and order of conviction and sentence.
Admittedly none of the witnesses examined by the prosecution are the witness to the occurrence and the case, as it appears, is based on the circumstantial evidence and extra judicial confession. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. The chain of circumstance should be of a conclusive nature and must be complete and most clearly point out to the guilt of the accused. Reference may be made to the decision of Hanumant Gobind Nargundkar and another vs. State of Madhya Pradesh reported in A.I.R. 1952 Supreme Court 343 and also Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Cri) 755. This has been elaborately discussed by us in a judgement dated July 15th, 2015 delivered in the matter of Biswajit Jamadar @ Habla vs. State of West Bengal (in re:C.R.A. No.671 of 2013) with the matter of Kanaiya @ Hukka Yadav vs. State of West Bengal (in re:CRA 594 of 2014).
The learned Court below took into consideration the entire circumstance leading from conduct of the appellant, his presence and arrest from the house where the dead body of the victim bearing sharp cut injuries was found, inquest report, P.M. report, recovery of blood stained weapon of offence from the spot, forensic report, extra judicial confession made before mother and maternal uncle, evidence of maternal uncle and mother of the appellant as well as statement recorded u/s 164 Cr.P.C. of the maternal uncle of the appellant.
It is evident from the evidence of maternal uncle of the appellant namely P.W.7, that he had fully corroborated the F.I.R. and the prosecution case and his statements-in-chief remained unshaken during cross-examination. He had specifically stated that on the relevant date at about 3.30 p.m. while he was at his house appellant came and told them that he had killed his father and after murdering his father and reporting the matter to them appellant was sitting by the side of dead body of his father. Thereafter, police came and arrested him therefrom. During cross-examination he even affirmed his statements made in his examination-in-chief relating to the extra judicial confession and clearly stated that appellant said both in Nepali as well in Hindi that "Hamne apna bap ko mara kisika bap ko nahi mara". Surprisingly, he was not challenged by the defence on that score nor he was challenged that appellant did not make any such extra judicial confession at all. Even not a single suggestion was put to the witness touching his credibility or whatsoever. He also made statements u/s 164 Cr.P.C (Ext. 4) before the Magistrate, P.W.9, where also specifically stated about making of extra judicial confession by the appellant about killing of his father. This also found corroboration from P.W.9, the Judicial Magistrate. P.W.8, mother of the appellant, also corroborated the above statements of P.W.7. She had specifically stated on oath that on the relevant date at about 3.30/4 p.m. while she was returning back to her house appellant met her on the way and told her that he had assaulted his father by an axe as a result he died. She then rushed there and found the dead body of her husband lying on the slope of the road just below their house and she also saw cut and bleeding injury on the neck of her husband. Seeing this she rushed to her house and started crying and raising halla and hearing these villagers started assembling in her courtyard and at that time appellant was also present in the house. Thereafter, police came and made inquest and removed the dead body for postmortem examination and arrested the appellant from the house. During cross-examination she also affirmed her statements made in her examination-in-chief relating to the extra judicial confession and clearly stated that appellant himself reported her in Nepali that he murdered his father. Interestingly she was also not challenged by the defence on this score nor she was challenged that appellant did not make any such extra judicial confession at all. Even not a single suggestion was also put to her touching her credibility.
P.W.5, the doctor, who conducted postmortem examination over the dead body of the victim also found incised wounds and lacerated deep cut injuries on the left side of the neck of the victim and opined that death was due to shock and haemorrhage due to multiple injuries which were antemortem and homicidal in nature and those injuries could be caused by axe. He was not challenged by the defence on this score. P.W.2, wife of the appellant though pleaded her ignorance as to who caused death of her father-in-law but it is evident from her evidence that on the relevant day at about 4 p.m. when she came back to her house after collecting firewood she found the dead body of her father-in-law in the courtyard and her husband in the house. P.W.4, constable who came at the P.O. along with the I.O. and was present during the inquest over the dead body of the victim also corroborated about the recovery of the dead body of the victim from that place. P.W.10, the I.O. had also vividly narrated about the receipt of the complaint on the relevant date from P.W.7 upon which he drawn F.I.R.(Ext.5) and started a case of murder against the appellant and took up investigation of the case and during investigation visited P.O., drawn up rough sketch map with index (Ext.6), held inquest over the dead body of the victim and found sharp cut injuries on the face, neck and head of the victim(Ext.7), sent the dead body for P.M. examination, arrested the appellant from the house and seized the blood stained weapon of offence namely Axe ( Mat. Ext.I), blood stained wearing apparels of the deceased (Mat. Exts.II & III), blood stained earth, controlled earth from the P.O.( Mat. Exts. IV & V) by a seizure list (Ext.2) and sent those articles for FSL examination and collected the report (Ext.10). The above statements of P.W.10 went on unchallenged.
Learned court below took into consideration the entire circumstances one after another and the evidence of mother and maternal uncle of the appellant and came to the conclusion that confession made before the mother and maternal uncle was a voluntary confession since the mother and maternal uncle had an independent character having no enmity with the accused and there is no whisper from the defence that such confession was made under any threat, provocation or any kind of force was applied on the appellant. The evidence of both P.W.7 and P.W.8 appear to be trustworthy and credible and there is no reason to disbelieve them.
It is well settled in the matter of acceptability of extra-judicial confession is that if such extra-judicial confession is made voluntary and in a fit state of mind and the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach and passes the touchstone of credibility it can be accepted and can be the basis of a conviction. Reference may be made to the decision of State of U.P. v. M.K. Anthony reported (1985) 1 Supreme Court Cases 505 and the relevant portion of the above decision is quoted below:-
"15. There is neither any rule of law nor of prudence that evidence furnished by extrajudicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extrajudicial confession a weak piece of evidence. (See Jagta v. State of Haryana and State of Punjab v. Bhajan Singh.) In Sahoo v. State of U.P. it was held that "an extrajudicial confession may be an expression of conflict of emotion, a conscious effort to stifle the picked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime". Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extrajudicial confession is corroborated by circumstantial evidence. However, in Piara Singh v. State of Punjab this Court observed that the law does not require that evidence of an extrajudicial confession should in all cases be corroborated. It thus appears that extrajudicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extrajudicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extrajudicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extrajudicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."
Reference may be made to another decision in the matter of State of Rajasthan v. Raja Ram reported in (2003) 8 Supreme Court Cases 180 and the relevant paragraphs of the above decision are as follows:-
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak of such a confession. Such a confession can be relied upon the conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
The above proposition of law and the decision was also repeated and reiterated by the Hon'ble Supreme Court in the matter of Kulvinder Singh and Another v. State of Haryana, reported in (2011) 5 Supreme Court Cases 258. That apart, it is the settled principle of law that the reliability of a witness cannot be questioned on the ground that he is an interested witness. Reference may be made to the decision dated May 7th,2015 of this court in Shyam Sabar & another versus State of West Bengal in CRA 146 of 2014. We do not find any error with regard to the above conclusion of the learned court below in the light of the settled proposition of law.
With regard to the non-discloser of the name of the neighbour and about extra judicial confession of the accused in the FIR, it is a settled principle of law that FIR is not proof of a crime but it is a piece of evidence which can be used for corroborating prosecution case. Reference may be made to the decision of Jitender Kumar - Vs. - State of Haryana, reported in (2012 ) 6 SCC 204 and the relevant portions of the above decision are quoted bellow :
"18. The court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference is this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P."
So in view of the above we are of the opinion that non-disclosure of the name of the neighbour and non mentioning about extra judicial confession of the accused in the FIR had no adverse effect on the finding of the learned court below.
With regard to the submission of the non examination of the witness named Voju and Motilal and non corroboration from the seizure witnesses about the factum of seizure of weapon of offence, we are of the opinion that according to the settled proposition of law of evidence, examination of any particular number of witnesses is not required for proving the prosecution case. Reliance can be placed on the solitary witness, if the court comes to the conclusion that the said statement is true and correct version of the case of prosecution. Reference may be made to the decision of State of U.P. vs. Krishna Master, reported in (2010) 12 SCC 324 and the relevant portion of the above decision is quoted below:-
"47. It is a well-known principle of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where the court finds that the testimony of the solitary witness is neither wholly reliable nor wholly unreliable, it may, in a given set of facts, seek corroboration, but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution."
Now with regard to the question of matching of blood group of the deceased with the blood stains found on the weapon of offence, we are of the opinion that non-acertainability of the blood group cannot be made a basis in all the cases to discard the evidence of the witnesses who otherwise inspire the confidence of the Court and are believed. Reference may be made to the decision of Keshavalal vs. State of M.P., reported in (2002) 3 SCC 254 and the relevant portion of the above decision is quoted below:-
"4. After going through the judgment of the trial court we find that the High Court was justified in setting aside the same because the judgment of acquittal is based upon surmises, conjectures and assumed contradictions. The High Court rightly found that in fact there was no contradiction in the depositions of the eyewitnesses and omissions or improvements noticed by the trial court did not amount to contradictions for the purposes of discarding the testimony of otherwise trustworthy natural witnesses. The trial court totally ignored the testimony of the eyewitnesses while holding that they had not seen the injury because, according to the FIR, the injury allegedly had been inflicted on the nose of the deceased. All the witnesses had deposed in the court that the injury was caused on the body of the deceased from behind near the right shoulder and the force with which it was caused resulted in the cutting of the vital inner parts of her body. Non-examination of the fingerprint expert has not, in any way, affected the case of the prosecution because it has come on record that before the seizure of the weapon of offence many person had handle it. Though the report of the Serologist is not available on the record, yet the report of the Chemical Analyser clearly and unequivocally shows that the clothes of the appellant and the weapon of offence were stained with human blood. Non- ascertainability of the blood group cannot be made a basis to discard the evidence of the witnesses who otherwise inspire the confidence of the court and are believed. No fault can be found with the judgment of the High Court by which the finding of the acquittal recorded by the trial court were set aside."
We find that the learned Court below took into consideration the evidence of P.W.7,maternal uncle and PW 8, mother of the appellant before whom appellant confessed his guilt and on rushing to her house P.W.8 found dead body of her husband lying on the slope just below her house having cut and bleeding injury on his neck and corroboration of the nature of injuries by P.W.4 as well as P.W.10 who held inquest and also recorded in post mortem report as also the opinion of PW 5, who had conducted the post mortem examination. In view of the above we do not find any substance in the submissions of learned Advocate for the appellant with regard to non-ascertaining of blood group of the blood stain detected on the weapon of offence.
The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I or Part II, IPC? Once the elements mentioned in Exceptions to Section 300, IPC are not established, the offence is murder. In the event a case comes within the elements prescribed in Exceptions to Section 300, IPC, it is culpable homicide not amounting to murder. The provisions of Section 300, IPC are set below:-
"300. Murder. - Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
The above provisions are interpreted by the Hon'ble Supreme Court in the matter of Virsa Singh vs. State of Punjab, reported in AIR 1958 SC 465 and the relevant portions of the above decision are quoted below:-
"14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";
15. First, it must establish, quite objectively, that a bodily injury is present;
16. Secondly, the nature of the injury must be proved; These are purely objective investigations.
17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
18. Once these three elements are proved to be present, the enquiry proceeds further and,
19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has noting to do with the intention of the offender."
In the matter of Jagrup Singh vs. State of Haryana, reported in (1981) 3 SCC 616, the Hon'ble Supreme Court altered the conviction of the appellant under Section 302, IPC, to one under Section 304, Part-II, IPC considering the natural injury on the head of the deceased with a blunt side of gandhala in the heat of the moment consequent upon a sudden quarrel and without any intention to cause the death of the deceased. The relevant portions of the above decision are quoted below:-
"14. . . . .
In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of the moment which resulted in the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly erred in applying clause Thirdly of Section 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre-meditation and in a sudden fight, the case was covered by Exception 4 to Section 300. It is not suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus, all the requirements of Exception 4 are clearly met. That being so, the conviction of the Appellant Jagrup Singh, under Section 302 of the Code cannot be sustained."
In the case in our hand we find that though the appellant struck the victim with an axe but we do not find any evidence on record that he had preplanned or had any intention to kill the victim, his own father. On the other hand it is apparent from the evidence on record that after striking his father namely the victim with an axe he went to the house of his maternal uncle and confessed his guilt to him and also to his mother and thereafter came back and sat by the side of the dead body of the victim and allowed the police to arrest him. Even the learned court below also observed while sentencing the appellant that it was not a preplanned cold blooded murder on the basis of long time conspiracy but it was an act of anger on sudden provocation. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellant under Section 302 of IPC. The learned Court below failed to consider at the time of passing the judgment that no evidence was brought on record to prove that there had been an intention to inflict the body injury to the deceased to cause death.
Attention of this Court has not been drawn by Mr. Gupta towards any material on record to take a different view. Therefore, the impugned judgment and the order of conviction and sentence are liable to be interfered with.
We allow this appeal to the extent that the conviction of the appellant under Section 302 is altered to one under Section 304, Part II of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed upon the appellant and the default sentence awarded to him remain unaltered. The period of detention of the appellant undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428, Cr. P. C. Copy of this judgement along with the lower Court records be sent down to the trial court immediately by a Special Messenger of this Court for information and taking necessary action.
This appeal is thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above.
Urgent Photostat certified copy of this judgment, 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.)