Calcutta High Court (Appellete Side)
Basudeb Ghosh vs The State Of West Bengal on 27 August, 2019
Author: Asha Arora
Bench: Asha Arora
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Asha Arora
C.R.A. 74 OF 2017
Basudeb Ghosh ... Appellant
- Versus -
The State of West Bengal .... Respondent
For Appellant : Mr. Soumyajit Das Mahapatra,
Mr. Dhananjay Banerjee,
Mr. S.K. Samiul Haque, learned advocate.
For the State : Mr. Rana Mukherjee,
Ms. Debjani Sahu, learned advocate.
Hearing concluded on : 27.08.2019
Judgement on : 27.08.2019
Asha Arora, J.:
1. Challenge in this appeal is to the judgement and order of conviction and sentence dated 27.01.2017 and 30.01.2017 passed by the Additional Sessions Judge, Fast Track Court, Kalna in Sessions Trial No. 9 of 2014 arising out of Sessions Case No. 23 of 2014 whereby the accused/appellant was convicted for the offence punishable under Section 304 Part - II I.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 3,000/- in default to suffer simple imprisonment for three months for the aforesaid offence.
2. The facts leading to the present appeal may be summarized as follows :
On 01.9.2012 at 12.45 hours one Nemai Tapader (P.W. 1) lodged a written complaint at Purbasthali P.S. alleging that on 31.8.2012 at about 7.30 a.m. when his brother Ananda Tapadar and his son Nitish Tapadar were proceeding to Jhowdanga village with their cows for arranging procreation, on the way accused Basudeb Ghosh who was passing along the road on a bicycle was pushed by a bull in consequence of which he fell down. Being infuriated the accused/appellant inflicted a blow with 'da' on the right hand of Ananda Tapadar and struck on his shoulder with the reverse side of the said 'da'. Consequently the victim sustained serious cut injury on his right hand and there was severe bleeding. The victim was immediately taken to Bethuadahari Hospital where the attending medical officer declared him dead. On the basis of the aforesaid written complaint Purbasthali P.S. case No. 28 of 2012 dated 01.9.2012 under Section 302 I.P.C. was initiated against the accused.
Investigation culminated in the submission of the charge sheet under Section 302 I.P.C. against the accused/appellant.
3. The trial court framed charge under Sections 302 I.P.C. against the accused/appellant who pleaded not guilty to the indictment in consequence of which trial commenced. In course of trial prosecution examined ten witnesses and relied upon several documents which were tendered in evidence and marked as exhibits.
4. Defence version in brief as projected from the trend of cross-examination of the prosecution witnesses as well as from the answers given by the accused during his examination under Section 313 of the Code of Criminal Procedure is innocence and point blank denial of the prosecution case.
5. On the basis of the evidence on record the trial Court convicted the accused/appellant for the offence punishable under Section 304 Part II IPC and sentenced him as aforesaid.
6. Castigating the prosecution case on manifold counts, learned counsel for the appellant sought to impress that the possibility of embellishment, fabrication and subsequent implication of the accused/appellant cannot be ruled out on account of delay of twenty five hours in lodging the F.I.R. (exhibit - 4) and unexplained delayed despatch of F.I.R. to the Magistrate. In this context reference has been made to the case of Meharaj Singh - versus - State of Uttar Pradesh reported in (1994) 5 Supreme Court Cases 188 (paragraph 12) and Rajeevan and another - versus - State of Kerala reported in (2003) 3 Supreme Court Cases 355 (paragraphs 12 to 15). Referring to the evidence of P.W. 1 and P.W. 2 it is pointed out that the F.I.R. was lodged by P.W. 1 on the basis of the information of P.W. 2 who claims to be the sole eye-witness so P.W. 2 ought to have lodged the F.I.R. To buttress such submission reliance has been placed on the case of Ramesh Baburao Devaskar and others - versus - State of Maharashtra reported in (2007) 13 Supreme Court Cases 501 (paragraph 18). Assailing the evidence of the sole eye-witness (P.W. 2) as tutored and untrustworthy, learned counsel sought to impress that the presence of this witness at the place of occurrence is doubtful in view of the fact that he could not mention the name of the accused at the time of inquest though it transpired in his cross-examination that he knew the accused since two/three years. Learned counsel pointed out that for the first time on 19.09.2012 in his statement under section 164 Cr.P.C. P.W. 2 spelt out the name of the accused as the assailant (of deceased) and that was after the surrender of the accused. It has further been argued that P.W. 2 was a minor at the time of his deposition in court but without testing and ascertaining his competency to depose, the trial court recorded the evidence of P.W. 2. It is canvassed that there are discrepancies in the evidence of P.W. 2 in relation to the medical evidence of P.W. 6 the medical officer who held post-mortem examination on the corpse of the deceased. Learned counsel pointed out that the post- mortem report (exhibit - 5) and P.W. 6 the medical officer who held post-mortem examination referred to two injuries on the person of deceased. The medical officer does not speak about any injury or mark on the neck of deceased although P.W. 2 in his evidence asserted that Basudeb Ghosh also hit Ananda Tapader with the reverse side of 'daa' on his neck. Learned counsel further contended that the multiple abrasions found on the front of right knee joint of deceased remained unexplained by prosecution. Challenging the recovery and seizure of the 'da' it is canvassed that seizure was not in accordance with the provisions of Section 100(4) Cr.P.C. since no independent local witness was called at the time of seizure. It is submitted that the seized 'da' not having been sealed and labelled, its identification in court by the Investigating Officer and the seizure witnesses was not possible so the evidence in this regard is not believable. Learned counsel argued that non-sealing and non-labelling of the seized 'da' was a serious infirmity which cannot be overlooked. To fortify his submission learned counsel relied upon the case of Sahib Singh - versus - State of Punjab reported in (1996) 11 Supreme Court Cases 685 (paragraph 5 and 6) and Amarjit Singh alias Babbu
- versus - State of Punjab reported in 1995 Supp (3) Supreme Court Cases 217 (paragraph 5 and 7). It is argued that recovery of the weapon of offence is not pursuant to any disclosure statement of accused so Section 27 of the Evidence Act finds no application in this case.
7. Repudiating the submissions on behalf of appellant, learned counsel appearing for the State argued that the testimony of the eye witness (P.W. 2) is corroborated by the evidence of P.W. 1, P.W. 3 and P.W. 4 as well as by the medical evidence of the doctor who held post-mortem examination so the conviction of the appellant is justified.
8. It is not in dispute that death of deceased was homicidal in nature. In this context it may be worthwhile to refer to the evidence of P.W. 6 Dr. Ajit Kumar Biswas, the medical officer who held post-mortem examination on the corpse of deceased on 31.08.2012. The relevant portion of the evidence of P.W. 6 is quoted herein below :
"On 31.08.2012 I was attached to District Hospital Nadia at Krishnagar. On that date I conducted post-mortem examination over the dead body of one Ananda Dafader @ Tapadar hindu male aged about 35 years in connection with Nakashi para, P.S. U.D. Case No. 41/12 dt. 31.08.12. The dead body was brought and identified before me by constable no. 769 namely, Ganesh Ch. Dey.
On examination of the dead body Rigormortis was found present. Body was stout. Deformity of right leg and right foot found with wasting of muscles due to poliomyelitis.
Injuries found as follows :
1. Sharp cut deep injury on right fore Arm on lataral aspect obliquely on lower 1/3 extended down up to right wrist measuring 3" X 1 ½" X bone deep with cutting of big vessels like radial Artery and vein along with nerve, soft tissues and radial bone.
2. Multiple abrasions on front of right knee joint.
Other organs are found pale.
In my opinion death was due to hypovolumic shock resulting from haemorrhage from above mentioned sharp cutting injury which was antemortem and homicidal in nature.
Besides this, in my opinion due to profuse blood loss by cutting of radial Artery and vein the person succumbed to the injury."
It is significant to mention that the opinion of P.W. 6 as to the cause of death of deceased remained unchallenged in cross-examination. The evidence of P.W. 6 is virtually unassailed in cross-examination. Being shown in court the weapon of offence (Mat Exhibit - I), P.W. 6 stated that this weapon may cause the injury noted in the post-mortem report (exhibit - 5). Being quizzed in cross-examination regarding the Mat Exhibit - I, P.W. 6 elucidated that due to rust this weapon has become blunt. At this juncture it is pertinent to mention that the incident occurred in the year 2012 while the evidence of the medical officer (P.W. 6) was recorded in the year 2015 after three years. So the weapon of offence (Mat Exhibit - I) which was lying in the 'Malkhana' had obviously become rusty. Nothing could be elicited in the cross-examination of P.W. 6 to discredit his evidence regarding the fatal sharp cutting injury No. 1 found on the right forearm of deceased and his opinion as to the cause of death.
9. It is well settled that conviction can be based on the evidence of a single eye-witness if his testimony is found to be reliable and trustworthy. It is the quality of the evidence of the solitary witness whose testimony has to be tested on the touchstone of credibility and reliability. In the case in hand, the sole eye-witness of the incident is P.W. 2 who is the nephew of deceased. He recounted the incident in the following manner which is quoted hereinbelow :
"The incident took place about 2 years ago. Ananda Tapader is my uncle. Ananda Tapader is no more alive and Basudeb Ghosh murdered him at village Jhowdanga at about 7.30 a.m. in the morning.
When I myself and my uncle Ananda Tapader were going to Jhowdanga village with cow for arranging procreation, at that time Basudeb Ghosh riding on a bi-cycle was also going to village Jahowdanga and at that time one bull suddenly dashed Basudeb Ghosh, the accused person of Jhowdanga as a result of which Basudeb Ghosh fell down. Then and there Basudeb Ghosh hit a sharp cutting "Daa"
aiming the neck of Ananda Tapader. At that time, Ananda Tapader tried to resist resulting which he sustained vein cut injury on his right arm.
Basudeb Ghosh also hit Ananda Tapader, my uncle by the reverse side of the 'Daa' on his neck and he fled away.
Thereafter I tied the right arm of my uncle Ananda Tapader and then and there informed the entire incident to my father over telephone. Ananda Tapader, my uncle narrated the entire incident to my father.
There after my uncle was taken to Bethuadahari Hospital by myself, my father and Santosh Tapader and doctor declared my uncle Ananda Tapadar as dead." P.W. 2 was cross-examined extensively but his evidence remained unscathed on the acid test of credibility and reliability. Nothing could be elicited in the cross-examination of P.W. 2 to render his evidence doubtful. There is no merit in the argument that P.W. 2 was a tutored witness and his evidence cannot be relied upon since he was a minor at the time of his deposition. Section 118 of the Evidence Act provides as follows :
"118. Who may testify - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."
During his evidence in Court which was recorded on 7th August, 2014 P.W. 2 gave out his age as sixteen years. He was certainly not a child of tender age as the learned counsel for the appellant sought to impress. At the time of his deposition before the trial court P.W. 2 was a grown up boy of 16 years. The manner in which P.W. 2 deposed in Court and from the answers given by him during his cross-examination it is clear that he was capable of understanding the questions put to him. He answered/deposed rationally, intelligently and coherently. Curiously enough, no suggestion was given to P.W. 2 in cross-examination disputing the factum of his presence at the place of occurrence at the time of incident nor was it suggested to him or to P.W. 1 that P.W. 2 was a tutored witness. It is true that P.W. 2 is related to deceased but on this count his evidence cannot be discarded as untrustworthy. If a witness is found to be reliable, his evidence cannot be rejected by branding him as an interested witness related to deceased. The Supreme Court has time and again reiterated in a plethora of decisions that relationship is not a ground to disbelieve the evidence of a witness who is otherwise found to be truthful and trustworthy. On the contrary, a close relative of deceased would normally not spare the real assailant or murderer and falsely implicate an innocent person. In the given facts of the present case P.W. 2 though closely related to deceased is a natural witness whose presence at the place of occurrence at the time of incident cannot be doubted. The name of P.W. 2 figures in the F.I.R. as the person who had accompanied the deceased for arranging procreation. Nothing could be brought on record during the cross-examination of P.W. 1 or P.W. 2 to show that they had an axe to grind against the accused for falsely implicating him. Nothing has surfaced in the cross- examination of these witnesses to show that they were inimical to the accused. In short, no motive could be attributed to P.W. 1 or P.W. 2 for falsely implicating the accused. It is evident that P.W. 2 deposed spontaneously and consistently. No material contradiction could be pointed out in the evidence of P.W. 2 in relation to his statement under Section 161 Cr.P.C. or 164 Cr.P.C. Simply put, the evidence of P.W. 2 inspires confidence and is beyond reproach. Reference to minor discrepancies in the evidence of P.W. 2 does not render his evidence untrustworthy. It is a well settled proposition of law that while appreciating the evidence of a witness, minor discrepancies on trivial matters not affecting the core of the prosecution case ought not to prompt the court to reject the evidence in its entirety. It is the totality of the situation that has to be taken note of. There is also no essence in the argument that the evidence of P.W. 2 cannot be believed since it is not in conformity with the medical evidence of the doctor who held post- mortem examination. It is clear that the medical evidence of P.W. 6 regarding the nature and situs of injury, weapon of assault and the cause of death of deceased due to the effect of the injury mentioned in the post-mortem report is in conformity with the ocular evidence of P.W. 2. There is no reference to neck injury in the evidence of P.W. 2 who stated that the accused struck his uncle Ananda Tapader on the neck by the reverse side of 'da'. P.W. 2 has not stated anywhere in his evidence that the victim sustained injury on the neck being struck by 'da'. At this juncture it may be useful to refer to the evidence of P.W. 1 who testified that Basudeb Ghosh also hit Ananda Tapader with the reverse side of the 'da' on his neck in consequence of which his brother Ananda Tapader fell down on the ground. Then Nitish Tapader, his son informed him over phone. From the evidence of PW-1 which is corroborated by the evidence of PW-2 it is evident that PW-2 informed about the incident to his father over phone and on getting such information PW-1 rushed to the place of occurrence where he found his brother lying with blood all over his body. According to PW-1, his brother (deceased) was then alive and on query by PW-1 the victim Ananda Tapader narrated the incident to him. It is clear from the evidence of PW-1 that being struck by 'da' on his neck the victim fell on the ground. This explains the "multiple abrasions on front of right knee joint" of the victim as found by PW-6 in course of post-mortem examination. Even PW-1 has not spoken in his evidence about any injury on the neck of the victim. Therefore there is no merit in the argument that there is inconsistency between ocular evidence of PW-2 and the medical evidence of PW-6. In this context it may be useful to refer to paragraph 12 of the decision of the Supreme Court in Solanki Chimanbhai Ukabhai versus State of Gujarat reported in 1983 CRI.L.J. 822 which is quoted hereinbelow:
"12. 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."
10. In Radha Mohan Singh alias Lal Saheb - versus - State of U.P. reported in (2006) Cri. L.J. 1121 (Supreme Court) the Supreme Court held that the proceeding under Section 174 Cr.P.C. has a very limited scope and is confined to the ascertaining of the apparent cause of death. It is concerned with ascertaining whether in a given case death was accidental, suicidal or homicidal. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceeding under Section 174 Cr.P.C. Therefore in the case in hand, non-mention of the name of the accused by P.W. 2 at the time of inquest does not affect the prosecution case. The name of the accused has clearly been mentioned in the F.I.R. which was lodged on the following day that is, on 01.9.2012. It was suggested to P.W. 1 in cross-examination that the accused fell down on the ground from bi-cycle then the 'daa' suddenly came out from the carrier of the cycle by jerking and the said 'daa' suddenly hit the hand of his brother Ananda Tapader. It was further suggested to P.W. 1 in cross-examination that his brother Ananda Tapadar tried to save the accused Basudeb Ghosh so he came in touch with the 'daa' as a result of which he sustained injury. This suggestion given to P.W. 1 in cross-examination on behalf of the accused completely demolishes the plea that someone other than the accused was the assailant of the deceased.
11. In the written complaint (Exhibit-4) it is stated that there was delay in lodging the complaint since the defacto complainant was busy with the cremation of his brother. Therefore it cannot be said that delay of 25 hours in lodging the complaint is without any explanation. The explanation given by the defacto complainant is convincing, plausible and reasonable. Ramesh Baburao's case (supra) is clearly distinguishable on facts from the case in hand. In the decision cited, parties were at loggerheads and there was enmity between them. It was observed therein that in such cases lodging of a First Information Report is always considered to be vital. In the case in hand, there is no suggestion or indication of enmity or strained relationship between the parties. This apart, delay of 25 hours in lodging the FIR has been satisfactorily explained in the FIR itself so the question of concoction or fabrication does not arise. In paragraph 13 of the decision in Sunil Kumar and another versus State of Rajasthan reported in 2005 CRI.L.J. 1402 (Supreme Court) the Apex Court held as follows :
"13. Great stress was laid on the alleged delay in dispatch of the FIR to the Ilaka Magistrate. FIR was recorded on 29-10-1999 at about 11.00 A.M. and reached the Magistrate on 30-10-1999 at about 12 noon. It cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the concerned magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. In the instant case as appears from the records the investigation was taken up immediately and certain steps in investigation were taken. Therefore, the plea that there was no FIR in existence at the relevant time has no substance. Additionally, no question was asked to the investigating officer as to the reason for the alleged delayed dispatch of the FIR. Had this been done, investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn."
Meharaj Singh's case (supra) and Rajeevan's case (supra) are not apposite for the purpose of the present case. Delayed despatch of FIR to the Magistrate does not render the evidence of PW-2 and the other witnesses as untrustworthy. In the case in hand, investigation was taken up immediately and the Investigating Officer was not questioned regarding delayed dispatch of FIR to the Magistrate. Once investigation commenced after receipt of the FIR, delayed receipt of FIR by the Magistrate does not affect the prosecution case.
12. Coming to the evidence of PW-1, PW-3 brothers of the deceased, and PW-4 wife of the deceased, who are the post occurrence witnesses, it transpires that they reached the place of occurrence immediately after the incident. According to PW-1, his son Nitish Tapader (PW-2) informed him over phone about the incident. Getting such information he rushed to the place of occurrence and saw his brother (victim) lying on the ground in bleeding condition. The relevant portion of the evidence of PW-1 is quoted hereinbelow :
"My brother was then alive and asked him who committed this type of injury. My brother Ananda Tapader and my son Nitish Tapader told me that Basudeb Ghosh hit him by Daa on his neck and also when he tried to resist the hit of Daa by hand he sustained vein-cut injury on his hand.
Then and there I myself and Radheshyam Sarkar, Susanta Tapader took my brother to Bethuadahari B.P.H.C. where the doctor declared him dead."
The evidence of PW-1 in this regard finds corroboration from the evidence of PW-2 who categorically stated in his evidence that he informed the entire incident to his father (PW-
1) over phone and his father immediately came to the place of occurrence where his uncle Ananda Tapader (victim) narrated the incident to him. No material contradiction could be pointed out in the evidence of these two witnesses interse or in relation to their statement made under Section 161 CrPC. PW-3 another brother of the victim testified in his evidence that he rushed to the place of occurrence and found Ananda Tapader lying in a pool of blood. On query by him, the victim stated that he was hit with a sharp cutting 'Daa' by Basudeb Ghosh. According to PW-3, Nitish Tapader (PW-2) also narrated the incident. PW-4 wife of the victim has also deposed in the same manner that on reaching the place of occurrence she found her husband lying in a pool of blood and he told her that Basudeb Ghosh had assaulted him with a sharp cutting 'Daa'. No material contradiction could be pointed out in the evidence of these witnesses in relation to their statement under Section 161 CrPC. At this juncture it may be profitable to refer to paragraphs 8 and 9 of the decision of the Supreme Court in Ramashray Yadav and others versus State of Bihar reported in 2006 CRI.L.J. 133 (Supreme Court) quoted herein below :
"8. Section 157 of the Evidence Act reads as under:
"157. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." The import of this Section was examined and explained in considerable detail in State of Tamil Nadu v. Suresh & Anr. (1998) 2 SCC 372 and paragraphs 26 to 28 of the reports are being reproduced below :
"26. The section envisages two categories of Statements of witnesses which can be used for corroboration. First is the statement made by a witness to any person "at or about the time when the fact took place". The second is the statement made by him to any authority legally bound to investigate the fact. We notice that if the statement is made to an authority competent to investigate the fact such statement gains admissibility, no matter that it was made long after the incident. But if the statement was made to a non-authority it loses its probative value due to lapse of time. Then the question is, within how much time the statement should have been made? If it was made contemporaneous with the occurrence the statement has a greater value as res gestae and then it is substantive evidence. But if it was made only after some interval of time the statement loses its probative utility as res gestae, still it is usable, though only for a lesser use.
27. What is meant by the expression 'at or about the time when the fact took place"? There can be a narrow view that unless such a statement was made soon after the occurrence it cannot be used for corroboration. A broader view is that even if such statement was made within a reasonable proximity of time still such statement can be used for corroboration. The legislature would not have intended to limit the time factor to close proximity though a long distance of time would deprive it of its utility even for corroboration purposes.
28. We think that the expression "at or about the time when the fact took place"
in Section 157 of the Evidence Act should be understood in the context according to the facts and circumstances of each case. The mere fact that there was an intervening period of a few days, in a given case, may not be sufficient to exclude the statement from the use envisaged in Section 157 of the Act. The test to be adopted, therefore, is that : Did the witness have the opportunity to concoct or to have been tutored ? In this context the observation of Vivian Bose, J. in Rameshwar v. State of Rajasthan, AIR 1852 SC 54 is apposite :
"There can be no hard and fast rule about the "at or about" condition in Section 157. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction." (Emphasis supplied)
9. In Smt. Chander Kala v. Ram Kishan & Anr., AIR 1985 SC 1268, an incident which took place on 10th March was narrated by the victim to some of her colleagues on 11th March and it was held that the testimony of her colleagues was admissible under Section 157 of the Evidence Act and could be used for the purpose of seeking corroboration to the testimony of the victim. Thus the testimony of P.W. 5 Arjun Prasad who had reached immediately after the incident had happened and to whom P.W. 12 Sidheshwar Prasad had narrated the incident and the role played by the three appellants in causing the death of his brother by firing upon him lends complete corroboration to the testimony of P.W. 12 Sidheshwar Prasad."
In the case in hand, the evidence of PW-1, PW-3 and PW-4 who reached the place of occurrence immediately after the incident and to whom PW-2 narrated the incident lends complete corroboration to the testimony of PW-2 and is admissible under Section 157 of the Evidence Act.
13. The evidence herein above discussed is corroborated by the factum of recovery of the weapon of offence at the instance of the accused/appellant. The factum of recovery of the 'da' (MAT Exhibit-I) is proved through the evidence of PW-2 and PW-5 who witnessed the recovery of the 'Da' at the instance of the accused and its seizure by PW-10 The seizure list dated 21.09.2012 (Exhibit-2) prepared contemporaneously by the Investigating Officer (PW-10) reveals that the weapon of offence that is, the 'da' was recovered and seized as shown, identified and produced by the accused/appellant from a bamboo bush in Jhoudanga village. PW-5 is an independent and disinterested witness who is not related to the victim. This witness corroborated the evidence of the Investigating Officer regarding the factum of recovery and seizure of the 'da'. The relevant portion of the evidence of PW-5 is quoted hereinbelow :
"Police came to our village Jhoudanga after 20 days of the incident. Police took Basudeb Ghosh to the place of occurrence as per his statement. Police recovered "Da" from a bamboo bush as per statement of Basudeb Ghosh. I accompanied police at the time of recovery of "Da". After the recovery of said "Da"
police prepared a seizure list therein and I put my signature in the seizure list. Signature of witness is marked as Exhibit-2/1.
This is the said "Da". Witness identified the said "Da". Witness identified MAT Exhibit-I. I know Basudeb Ghosh. He is present in the court today (identified)." Nothing could be elicited in the cross-examination of PW-5 to demolish his evidence. No motive could be attributed to this witness for deposing falsely against the accused. No suggestion of animus was given to PW-5 in cross-examination. His evidence appears to be natural and spontaneous without any exaggeration. Therefore there is no reason to disbelieve the evidence of PW-5. The argument that the seized 'da' was not sealed and labelled does not enure to the benefit of the appellant. In the case in hand, there is reliable evidence to show that the accused/appellant inflicted fatal injury on the person of the deceased resulting in his death so non-sealing and non-labelling of the weapon of offence does not render the prosecution version fragile. Sahib Singh's case (supra) and Amarjit Singh's case (supra) are clearly distinguishable on facts from the case in hand and are of no avail to the appellant. This apart, law on the issue is well settled that on account of lapse on the part of the Investigating agency, credible and trustworthy evidence cannot be discarded. In C. Muniappan versus State of Tamil Nadu reported in (2010) 9 Supreme Court Cases 567 the Supreme Court held that where there has been negligence on the part of the Investigating agency or omissions which resulted in defective investigation, there is legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether such evidence is reliable or not and as to whether such lapses affect the object of finding out the truth. In the case in hand, there is trustworthy and credible evidence hereinabove discussed which proves the prosecution case beyond reasonable doubt so the argument advanced on behalf of the appellant is of no help.
14. In the ultimate analysis, for the reasons hereinabove discussed, I am of the firm view that no interference is warranted with the impugned judgement of conviction and sentence passed by the trial court.
15. Consequently, the appeal fails and is accordingly dismissed.
16. The appellant who is on bail shall surrender before the trial court within one month from this date to serve out the sentence in default of which the trial court shall take appropriate steps against the appellant/accused for execution of the sentence in accordance with law.
17. A copy of this judgement along with the lower court records be sent forthwith to the trial court for information and necessary action.
18. Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.
(Asha Arora, J.) dc./P.M.