Calcutta High Court (Appellete Side)
Bikash Lakra vs The State Of West Bengal on 29 July, 2015
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present :
THE HON'BLE JUSTICE ANIRUDDHA BOSE
AND
THE HON'BLE JUSTICE SANKAR ACHARYYA
Criminal Appeal No. 585 of 2013
In the matter of -
Bikash Lakra
Vs.
The State of West Bengal
For the appellant : Mr. Amit Roy; adv.
Mr. Abhijit Mondal; adv.
For the State : Mr. Subir Banerjee; Ld. APP.
Heard on : 8.5.2015
Judgment on : 29.07.2015
SANKAR ACHARYYA, J.
This appeal has been preferred by the appellant against the judgment and order of conviction dated 26.4.2013 and sentence dated 29.4.2013 passed by learned Additional District and Sessions Judge, Islampur, Uttar Dinajpur in Sessions Trial No. 17 of 2010 arising out of Sessions Case No. 93 of 2010 under Sections 326/307/302 of the Indian Penal Code (hereinafter called as I.P.C.).
The appellant preferred this appeal sending petition of appeal from correctional home and on his prayer this appeal has been registered appointing State Advocate for conducting his appeal.
Brief history of the case in the Trial Court is that on 26.3.2010 at 18:35 hours, one Pusha Oraon lodged FIR at P.S. Chopra under District Uttar Dinajpur to the effect that on 26.3.2010 at about 4 P.M. accused Bikash Lakra assaulted his wife Rajani Oraon, son Kalyan and daughter. In that incident he committed murder to his said daughter and caused grievous hurt to his wife and son with intention to murder. Police started Chopra P.S. Case No. 68/10 dated 26.3.2010 under Sections 326/307/302, I.P.C. Investigation was done by police. Investigating Police Officer submitted charge sheet against the accused under Sections 326/307/302, I.P.C. before the learned Additional Chief Judicial Magistrate, Islampur. Thereafter, copy was supplied to the accused under Section 207, Code of Criminal Procedure (hereinafter called as Cr.P.C.). Then the case was committed to the Sessions Court under Section 209, Cr.P.C. Cognizance was taken under Section 203, Cr.P.C.
In the Trial Court, charges under Sections 326/307/302, I.P.C. were framed, read over and explained to the accused when the accused pleaded not guilty and the case was tried by the learned Additional Sessions Judge, Islampur. Concluding the trial learned Judge in the Trial Court convicted the accused Bikash Lakra finding him guilty of the charges under Sections 326/307/302, I.P.C. and sentenced him to suffer rigorous imprisonment for ten years with fine of Rs.5000 in default rigorous imprisonment for six months more for committing the offence under Section 326, I.P.C., rigorous imprisonment for life together with fine of Rs.10000 in default, rigorous imprisonment for one year more for committing the offence under Section 302, I.P.C. Be it noted that punishment similar to the punishment of the charge under Section 326, I.P.C. has also been awarded and it is apparent that due to accidental mistake in the impugned judgment Section of the offence has been mentioned as 302, I.P.C. instead of 307, I.P.C. Said mistake is ignored in this judgment. As per impugned judgment, the sentences shall run concurrently.
During trial in the Court below, prosecution examined as many as 13 witnesses, namely informant Pusha Oraon as PW 1, Pratap Bara as PW 2, Titri Oraon as PW 3, Rajani Oraon (wife of the accused) as PW 4, Sakhi Oraon (brother of PW 4) as PW 5, Budhua Lakra (father of the accused) as PW 6, Dr. Debkumar Kundu as PW 7, Buddhadeb Oraon as PW 8, Kishor Kumar Bara as PW 9, Vadho Oraon (parent of PW 4) as PW 10, Mainak Paul as PW 11, Saikat Sheet as PW 12 and the Investigating Police Officer Bidhan Banerjee as PW 13. It comes to our notice that PW 2 and PW 9 are names of same person. As such 12 persons have been examined as 13 witnesses during trial. In addition to the oral evidence of said witnesses prosecution has adduced the written complaint (FIR) as Exhibit- 1/1. One inquest report over the dead body of Parboti Lakra (daughter of the accused) as Exhibit- 2, a seizure list claiming seizure of 15 inches long knife (Kalam-Chhuri which is generally used for working in tea garden) as seized from accused on the very date of occurrence as Exhibit- 3 read with Exhibit- 12, Post Mortem Examination Report of Parboti Lakra as Exhibit- 4, one injury report of PW 4 Rajani Oraon as Exhibit- 5, injury report of Kalyan Oraon as Exhibit-6, O.T. note of Kalyan Oraon as Exhibit- 7, formal FIR as Exhibit- 8, rough sketch map with index of the locality of place of occurrence as Exhibit- 9, seizure list showing seizure of blood stained earth and control earth as Exhibit- 10, another seizure list showing seizure of wearing apparels of deceased Parboti as Exhibit- 11, a report of forensic science laboratory as Exhibit- 13, statement of PW 4 Rajani Oraon recorded under Section 164, Cr.P.C. as Exhibit- 14 and the charge sheet submitted in the case as Exhibit- 15. Defence of the accused, during trial, as disclosed from the trend of cross- examination of the prosecution witnesses and result of examination of the accused under Section 313, Cr.P.C. is denial of each and every allegation brought by prosecution against the accused and the accused claimed himself as innocent.
In this appeal, the appellant prays for setting aside the impugned judgment and orders of conviction and sentence passed against him and for his acquittal of the charges levelled against him as per arguments advanced before us.
Points for decision
(i) Are the findings made in the impugned judgment prejudicial to the appellant and miscarriage of justice has been caused thereby?
(ii). Is the impugned judgment liable to be set aside?
Decisions for reasons Point no. 1 + Point no. 2:-
Both the points are taken up together for discussion in the interest of brevity and convenience. In the instant case allegation against the appellant is that he caused grievous injury to his wife Rajani Oraon and his son Kalyan Lakra with an intention to commit them murder and he committed murder to his minor daughter Parboti Lakra. Alleged occurrence took place on 26.3.2010 in the afternoon at about 4 P.M. During trial all the twelve witnesses have deposed in favour of the case of prosecution. Learned Judge in the Trial Court has believed the prosecution case as proved beyond reasonable doubt.
In this appeal learned counsel for the appellant has drawn our attention to the evidence of PW 4 and has argued that according to PW 4, the relationship between PW 4 and her husband (accused appellant herein) was good and the accused did such act all on a sudden on that day. It has also been brought to our notice that PW 4 has also stated during her cross-examination that at the relevant time Bikash (appellant) was drunk. Learned counsel has advanced arguments that no mens-rea of the accused has been proved but the appellant has been found guilty of the charge under Section 326/307/302, I.P.C. illegally by the learned Court below. It has also been argued before us that 'murder' has been defined in Section 300 of the Indian Penal Code which consists of four ingredients and five exceptions. According to the learned counsel for the appellant, following the exception- 1 to Section 300, I.P.C. Learned Court below ought to have held that the accused is not guilty of the charges under Section 307/302 of the Indian Penal Code. In reply, learned counsel for the State-respondent has argued that mens rea has been clearly proved by PW 8 in his evidence and that there is no scope of mistake or accident. He has advanced his arguments that there is no special defence of the accused appellant that either due to grave or sudden provocation at the instance of the victims of the occurrence or due to mistake or accident the occurrence took place.
We have carefully gone through the evidence adduced by prosecution, result of examination of accused under Section 313, Cr.P.C. and the impugned judgment.
In the impugned judgment evidence of witnesses has been thoroughly discussed. Some golden principles regarding role of Court in a criminal trial, appreciation of evidence to find out the truth separating grains from the chaff, extent of reliability on relative witnesses, applicability of the phrase "Benefit of doubt" in a criminal trial have been followed by the learned Judge of the Trial Court in the Impugned judgment.
In the impugned judgment at page 12 learned Trial Judge has discussed the evidence of PW 8 and has taken that evidence into consideration for believing existence of motive of the accused to commit the crime.
Before discussion on the question of 'mens-rea' we like to mention that this first appeal is continuation of the trial for which this Court undertakes to re-appreciate the evidence and other materials on record relating to facts and law. In course of hearing of this appeal it was brought to our notice by the learned Counsel for the appellant that during trial, learned Additional Sessions Judge omitted to put question to the accused during his examination under Section 313 of the Code of Criminal Procedure about definite statement that the accused used to suspect his wife Rajani Oraon. This omission, according to us is curable and the omission does not vitiate the entire trial. It is our view that in the overall context or perspective of the case, omission to put such a question to the appellant could not have resulted in invalidation of the judgment under appeal. The allegation of the prosecution that the Appellant used to suspect his wife was not the foundation on the basis of which the Trial Court decided the trial. Circumstance was the determinant factor for holding the accused guilty.
Section 313 of the Code of Criminal Procedure, 1973 reads as:-
"Power to examine the accused.- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain and circumstances appearing in the evidence against him, the Court -
(a) May, at any stage, without previously warning the accused, put such questions to him as the Court considers necessary:
(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case :
Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under Sub-Section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed".
In that view of the matter, we found it necessary, without causing prejudice to the accused-appellant and without passing order of re-trial and without setting aside the impugned judgment, to examine ourselves the accused-appellant in addition to his earlier examination under Section 313 of the Code of Criminal Procedure, 1973 recorded by the Trial Court. Accordingly, we have further examined him under Section 313, Cr.P.C. but the situation which was prevailing before the learned Additional Sessions Judge in Trial Court before deciding the appeal has not been changed as the appellant did not answer the question referring to evidence of PW 8 about the appellant's suspicion towards his wife.
We also take the evidence of PW 8 for consideration independently. Moot question relating to deposition of PW 8 is whether his statements are hearsay under Section 60 of the Evidence Act. Admittedly, PW 8 is not eye witness of the occurrence of assault by accused to his wife, son and daughter. PW 8 has stated that Bikash (accused) used to suspect his wife Rajani Oraon. During his cross-examination he has stated that he heard that Bikash used to suspect his wife. In our view, the statement of PW 8, made during his examination-in-chief regarding mental state of accused is direct evidence but question arises because he heard about such mental state of accused as stated during cross-examination. In fact, during cross-examination he was not even suggested on behalf of accused that accused did not suspect his wife. It may be presumed under Section 114 of the Evidence Act that according to common course of human nature, the person who bears some suspicion in mind is the only person who may express it before others and unless he discloses it before others nobody can acquire knowledge about such suspicion. Since during cross-examination, he has stated about his knowledge regarding suspicion of accused on the basis of hearing it requires to be presumed that he heard it from accused although in so many words he has not stated such source of his hearing for want of specific question on this point. In that view of the matter we hold that the evidence of PW 8 cannot be treated as hearsay under Section 60, Evidence Act. In all probability according to Section 114 Evidence Act, the knowledge of PW 8 regarding suspicion of accused against PW 4, behind the back of PW 4, who under good faith believed that the relationship between herself and her husband (accused) was good, gathered from the accused only and none else. Said evidence is sufficient to prove mens-rea of the accused for committing the crime. In our opinion, any say, on the basis of hearing is not 'hearsay' in the eye of law. Rather, if a person hears with his own ears from the original source and says on oath in Court without tincturing his own opinion about it is not 'hearsay' but it is direct evidence under Section 60, Evidence Act. Whether the source of hearing is or is not 'hearsay' is to be decided according to the facts and circumstances of each case independently. In the instant case, had there been statement of PW 8 during cross-examination specifically that he heard the fact from others without mentioning the particular name it would be 'hearsay'. Here PW 8 has not stated that he heard from others.
Learned counsel for the appellant has also advanced his arguments that without admitting but if for the sake of arguments it be presumed that evidence of PW 8 is not 'hearsay' then also the mens-rea of the accused centres around the wife (PW 4) of accused and not against his son and daughter.
On this point, a significant fact comes to our notice from the evidence on record and attending circumstances that although PW 4 is the only eye witness of the incidents of assault on her and her sucking son (aged 3 months) on her lap by accused but there is no witness of assault on Parboti, the daughter of PW 4 and the accused. Incident of assault on PW 4 and her son first occurred in their house and when PW 4 was trying to flee away then accused assaulted her on the second occasion on the road resulting the grievous injuries and loss of consciousness of PW 4. Circumstances speak that Parboti was assaulted on the road later. Nature of injuries found on the dead body of Parboti has similarity in the injuries of PW 4 and the son Kalyan as appears from the evidence of PW 7, exhibit- 4, PW 11, exhibit- 5, PW 12 and exhibit- 6. Scrutinizing the totality of evidence on record we firmly believe and hold that Parboti was also assaulted by same person who assaulted PW 4 and Kalyan with same weapon and we also believe that soon after the occurrence the appellant took to his heel and then was apprehended with the incriminating weapon from Devijhora Tea Eatate where he was hiding as proved by post occurrence witnesses and I.O. together with the seizure list. Totality of said evidence on record proves beyond shadow of doubt that the accused had mens rea for committing murder to his wife, son and daughter.
We should consider also the matter as to whether due to grave and sudden provocation the appellant assaulted his wife Rajani (PW
4), son Kalyan and daughter Parboti (deceased) on the date, time and place or due to mistake or accident the incident occurred.
Learned counsel for the appellant has claimed that from the evidence on record it has been established that at the relevant time, the accused was drunk and therefore, it is very much possible that due to temptation under intoxication he became provoked losing his normal understanding and self control for which due to mistake or accident he caused hurt to his wife, son and daughter. As such, benefit of doubt should have been extended in his favour by the learned Court below according to the exception- 1 to Section 300 of the Indian Penal Code.
In our opinion, this interesting point of law is not confined within the exception- 1 to Section 300, I.P.C. but it also attracts the provision of Section 85 of the I.P.C. It also involves the question of fact as to whether the accused became drunk voluntarily with premeditation for committing the crime or he became drunk due to administering something by any other person which intoxicated him without his knowledge or against his will.
We have already discussed that the accused had mens rea for committing the crime. Very much reliable evidence of PW 4 together with her statement recorded under Section 164, Cr.P.C. (exhibit- 14) speaks that accused administered country liquor to his wife Rajani (PW 4) and daughter Parboti (4 years old) before occurrence and accused was also drunk at the time of assault on PW 4 and her son after 10-15 minutes of administering country liquor to PW 4 when PW 4 already became intoxicated. Here, we rely upon the settled principle, "Witness may lie, document may lie but circumstances do not". From the totality of materials on record we find and hold that the accused administered country liquor to his wife and daughter with his premeditation for committing the crime and he also made himself drunk to fulfil his desire which fact is proved beyond any shadow of doubt. By preponderance of probability it is not established that he was intoxicated at the instance of any other person beyond his knowledge or against his will and the degree of his intoxication was such that he lost his normal sense of understanding. As such, he is not entitled get the advantage of the guideline, 'benefit of doubt' even following the exception- 1 to Section 300, I.P.C. and he is also not entitled to be found a person committed no offence doing the acts by reason of intoxication in view of the provisions under Section 85, Indian Penal Code.
In summing up, we do not find any cogent reason to differ with the findings made by Sri R.k. Gupta, learned Additional Sessions Judge, Islampur, Uttar Dinajpur in the impugned judgment of conviction and sentence of the accused. In our view, the findings made in the impugned judgment are not at all prejudicial to the appellant and no miscarriage of justice has been caused by the impugned judgment. Therefore, impugned judgment is upheld and not set aside. Both these points are decided against the appellant.
Accordingly, this appeal fails.
A copy of this judgment along with L.C.R. be sent to the Trial Court.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
I agree.
(SANKAR ACHARYYA, J.,) (ANIRUDDHA BOSE, J.,)