Calcutta High Court (Appellete Side)
The State Of West Bengal vs Nripen Lohar Karmakar on 21 March, 2014
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta Criminal Appellate Jurisdiction Present:
The Hon'ble Mr.Justice Jayanta Kumar Biswas and The Hon'ble Mr.Justice Asim Kumar Ray Death Reference No.3 of 2013 The State of West Bengal v.
Nripen Lohar Karmakar with CRA No. 687 of 2013 Nripen Lohar Karmakar v.
The State of West Bengal Mr.Manjit Singh, Public Prosecutor, with Mr.Pawan Kumar Gupta, advocate, for the State. Mr.Milan Mukherjee, advocate, with Mr.Saibal Mondal and Mr. Subhashis Dasgupta, advocates, for Nripen.
Heard on : August 26, 27, 30 & September 6 & 27, 2013.
Judgement on: March 21, 2014.
Jayanta Kumar Biswas, J:- The death reference was registered on June 24,2013 on receipt of a letter of the Additional District & Sessions Judge, Second Court, Balurghat, Dakshin Dinajpur dated June 21, 2013.With his covering letter the judge submitted the proceedings of Sessions Case No.292 of 2012 arising out of Hili P.S. Case No.112 of 2012 dated June 11,2012 under s.302 IPC.
By his judgement dated June 17, 2013 the judge convicted Nripen the accused of an offence under s.302 IPC and by his order dated June 21, 2013 he passed a sentence of death. The appeal is by Nripen made on August 20, 2013, against the judgement and order.
The sentencing part of the order is quoted below:-
"Accordingly, it is ordered that the convict Nripen Lohar Karmakar is hereby sentenced to death by hanging until he be declared death u/s 302 I.P.C. subject to confirmation of the Hon'ble High Court, Calcutta. Said convict is hereby sentenced to pay fine of Rs.50,000/- in default to suffer rigorous imprisonment for five years for the offence punishable u/s 302 I.P.C."
A written information given by one Lakshmi Mohanta led to the FIR. The following is the drift of the information:-
On June 10, 2012 at around 9.30 p.m. an altercation took place between her husband Raju and Nripen. Nripen was abusing Raju a lot. Raju, she and her people asked Nripen to go home. Nripen went home for the time being. Raju remained seated on a bamboo bench of her elder brother's tea stall. She and her people went inside the house. After sometime suddenly Raju cried out ma and she heard a dull thud. She and her people came out and saw Raju lying under the bench and tossing about in a bloody condition, and in electric light saw Nripen fleeing towards house with a billhook in his hand. In hospital the doctor declared Raju dead.
The Medical Officer, District Hospital, Balurghat, Dakshin Dinajpur doing the post mortem on Raju on June 11,2012 at 1 p.m. mentioned the wounds in his report dated June 11,2012 and wrote therein that the wounds were created by heavy sharp weapon, and that, in his opinion, the wounds causing the death were ante mortem and homicidal in nature.
On June 11, 2012 the investigating officer prepared a rough sketch map of the scene of crime with an index and on June 12, 2012 he prepared a seizure list recording that on June 12,2012 he seized Raju's lungi and p.m. blood. Nripen surrendered himself to the court of the Chief Judicial Magistrate, Balurghat on June 25, 2012. He was remanded in judicial custody.
On June 27,2012 the investigating officer prayed for permission to interrogate Nripen at the correctional home where Nripen was lodged. By an order dated June 27,2012 the CJM allowed the prayer. On July 6,2012 the investigating officer filed an application seeking Nripen's police custody for seven days for enabling him to recover the weapon of offence and reconstruct the crime scene.
In his application dated July 6,2012 the investigating officer stated that on July 5,2012 he had interrogated Nripen at the correctional home, and that during interrogation Nripen made confessional statement implicating himself in the commission of the crime and agreeing to co-operate for recovery of the concealed weapon and reconstruction of the crime scene. By an order dated July 6,2012 the CJM allowed Nripen's police custody for two days.
The investigating officer prepared a seizure list dated July 6,2012 showing that on July 6,2012 between 8.45 p.m. and 9.35 p.m., being led by Nripen in the presence of one Paritosh Barman and one Uttam Barman he (the officer) seized a one edged wooden handled around 14″ long billhook Nripen brought out from a clump of bamboos located near his (Nripen's) house.
Statements of Lakshmi, Bipul Mohanta (Lakshmi's elder brother) and Bivas (a son of Bipul) were recorded under s.164 CrPC on July 30,2012 and statements of Paritosh and Uttam, the two witnesses to the discovery of the offence weapon on July 6, 2012, were recorded under s.164 CrPC on August 7, 2012. The investigating officer submitted the charge-sheet dated September 21,2012. He charged Nripen with Raju's murder.
The CJM took cognizance of the offence on September 22,2012 and committed the case to the Court of Session on December 7,2012. The Court of Session took cognizance on December 20,2012 and framed charge under s.302 IPC on January 17,2013. Nripen pleaded not guilty and claimed to be tried. On receipt of FSL report the investigating officer submitted a supplementary charge- sheet dated February 6,2013.
Between February 11, 2013 and April 18, 2013 the prosecution produced the following witnesses:- PW1 - Lakshmi; PW2 - Bipul; PW3 - Bivas; PWs4-6 - three villagers; PW7 - the medical officer who did the post mortem; PW8 - Paritosh; PW9 - Uttam; PW10 − the scribe of the written information; PW11 - the magistrate who recorded the s.164 statements; PW12 - a photographer; PW13 - a constable; PW14 − a homeguard; PW15 - a police ASI; and PW16 - the investigating officer.
The prosecution produced and proved the following documents:- Ex1 - the five s.164 statements; Ex2 - the seizure list dated June 11,2012; Ex3 - the post mortem report; Ex4 - the seizure list dated July 6, 2012; Ex5 - the written information; Ex6 -the seizure list dated June 12,2012; Ex7 - the dead body challan dated June 11,2012 ; Ex8 - the formal FIR; Ex9 - the rough sketch map and index both dated June 11,2012; Ex10 - the inquest report; Ex11 - Nripen's s.161 statement dated July 5,2012; and Ex12 - the FSL report.
The prosecution produced and proved, inter alia, the following material exhibits:- MatExI - a sealed cloth packet; MatExII - blood stain on the cloth (the lungi); MatExIII - the billhook; MatExIV- replica of control earth; and MatExV -
photos. Nripen was examined under s.313 CrPC on May 6, 2013. He claimed innocence and declined to give any evidence in defence.
Relevant part of examination-in-chief of PW1, Lakshmi, is quoted below:-
"Victim Raju Karmakar, since murdered, was my husband. On 03/04th day of Jaistha last year at 9.30 p.m. accused Nripen Lohar Karmakar was in drunken condition. He abused us in filthy language in front of tea-stall. The said tea-stall belongs to my elder brother, Bipul Mohanta. All other customers also advised him to go away from the tea stall. Closing the tea-stall we left for our respective houses. Accused also left for his house. Bench was made of bamboo. My husband was sitting on the bench. Then I began to cook meal. After ½ hour I heard shouting as "Maa". I along with my mother and other neighbours came out from our respective houses. I found my husband Raju Karmakar in a pool of blood under scaffold. I found Nripen Lohar Karmakar fleeing away along Hansua from the place of occurrence by means of street light. We chased accused, Nripen Karmakar. Upon request B.S.F. personnels took my husband on their vehicle to Hili hospital. Just after taking at Hili hospital he breathed his last. He sustained injury at his throat, both the shoulders and back."
Relevant part of examination-in-chief of PW2, Bipul, is quoted below:-
"I am brother-in-law of victim Raju Karmakar. who was murdered. I have tea-stall at Doomran village under Hili P.S. Raju Karmakar was murdered. On 10.06.12 at about 9.30 p.m. a murder took place in front of my tea stall. There was hot altercation by and between accused Nripen Lohar Karmakar and victim Raju Karmakar. Victim Raju Karmakar advised accd. Nripen Karmakar to go back his house but he abused him in filthy language. Accd. Nripen Lohar Karmakar left for his house. Closing the shop I went back to my house. When I heard crying out 'Oray Bapray Oray Maa' I rushed to the P.O. It was found that throat was cut down. Taking 'Hansua' at his hand, accd. Nripen Lohar Karmakar was fleeing away towards his house as found in the street light. We taking the victim Raju Karmakar on B.S.F. car went to Hili B.P.H.C. When doctor examined him, opined that victim Raju Karmakar died."
Relevant part of examination-in-chief of PW3, Bivas, is quoted below:-
"P.W.−2 , Bipul Mohanta is my father. Defacto complainant Laxmi Mohanta is my paternal aunt. Victim Raju Karmakar was my paternal uncle.Raju Karmakar was murdered. About 6/7 months before I was witnessing T.V. programme. There was quarreling by and between accused Nripen Lohar Karmakar and victim Raju Karmakar. There is a tea-stall of my father Bipul Mohanta. Accd. Nripen Lohar Karmakar in drunken condition abused victim Raju Karmakar in filthy language. Victim Raju Karmakar asked Nripen Karmakar to go away there from. For the time being he went away. there from. Victim Raju Karmakar was there at. Victim Raju Karmakar started shouting 'Maa'. We came back to the P.O. We found that throat was cut down and there was cut injury of both shoulders and back. It was found that accused Nripen Lohar Karmakar was fleeing away with 'Hansua'. We took victim Raju Karmakar on the vehicle of B.S.F. personnel. I did not accompany with injured Raju Karmakar on the vehicle. We chased till the house of the accd. Nripen Lohar Karmakar but could not trace him out."
Examination-in-chief of PW4, a villager, is quoted below:-
"I am resident of Doomran village. Raju Karmakar, since murdered, was known to me. About 7/8 minutes ago the incident of murder took place. I was then witnessing the T.V. programme in the night. On hearing hue and cry, I rushed to the P.O. I found human blood in front of the tea stall of Bipul Mohanta. Raju Karmakar is being taken away by the B.S.F. personnels' Jeep to Hili B.P.H.C. On the following day morning I heard about the murder of Raju Karmakar.
Accused person is present on dock and identified. It was heard that accused committed murder of Raju Karmakar."
PWs5 & 6, two more villagers, were tendered by the prosecution. The defence declined to cross-examine them.
Examination-in-chief of PW7, the post-mortem doctor, is quoted below:-
"I am Medical Officer attached to Balurghat district hospital. On 11.06.2012 I was at the same hospital. On that day I conducted Post Mortem Examination respecting dead body of Raju Karmakar in connection with HILI P.S. U.D. case No. 23/12 dated 10.06.2012 u/s 174 Cr.P.C. On dissection of the dead body it was found that there was deep cut wound on left side of the neck measuring 6x2 inches X 2 inches X ½ inches upto vertibra depth. Also ½ inches gap in below left subnandibular region, hyoid bone cut, deep lacerated wound, deep vessel and muscle cut, in the left side. There was cut wound in trachea measuring 1X2 inches at right side upper chest superfacial cut wound and two wounds on the left side of the shoulder joint measuring 2X4 inches upto shoulder cuff. and upper of right side 1 inch X ¼ inches. Such injuries are found at the above. Also another injury was being found at below of the upper side of the right chest.
In my opinion it is case of homicidal in nature and anti-mortem. Such murder was being committed by sharp heavy cutting weapon. Such grievious injuries might be caused by Hansua. This is a P.M. report prepared and signed by me marked exhibit - 3. Trachea was found fully cut. Such type of grievous injury might be caused with the seized 'Hansua' already identified marked exhibit."
Relevant part of examination-in-chief of PW8, Paritosh, is quoted below:-
"Victim Raju Karmakar since murdered was known to me. Accused Nripen Lohar Karmakar is present on dock and identified. On 06.07.2012 at about 8.00 to 8.30 p.m. I was in the village. I was standing by the side of the tea-stall of Bipul Mohanta.Police came to the P.O. with accused Nripen Lohar Karmakar. While accused was in police custody, the police officer along with myself went to bamboo grove and took out the incriminating 'Hansua' marked as material exhibit from the bamboo grove. This is the 'Hansua' recovered from the bamboo grove by the accused while in police custody. This is my signature on the seizure list identified and marked exhibit - 4 as a whole. Accused Nripen Lohar Karmakar while in police custody put signature on the seizure list against of incriminating ' Hansua' recovered at his instance from the bamboo grove in presence of us."
Relevant part of examination-in-chief of PW9, Uttam, is quoted below:-
"Victim Raju Karmakar was murdered. On 06.07.2012 I was sitting on the road side. Bipul Mahanta has a tea stall. It was 8.00 to 8.15 p.m. police came to the village. Accused Nripen Lohar Karmakar was accompanying with the police officer. We were being taken to bamboo grove. One incriminating 'Hansua' was recovered from the bamboo grove. This is my signature on the seizure list identified exhibited document. Also I signed on the replica of the label pasted with the seizure list identified exhibit. Accused Nripen Lohar Karmakar also put signature on the said label. This is my signature on the label pasted with the incriminating 'Hansua'. This is the 'Hansua' recovered by the accused from the bamboo grove identified as material exhibit."
PW10 is the scribe of the information leading to registration of the FIR. He testified that he wrote the thing at Lakshmi's request. There is nothing in cross- examination to disbelieve his testimony. PW11 is the magistrate who recorded the statements of PWs1,2,3,8 & 9 under s.164 CrPC. He testified that he recorded the statements. There are some inconsequential minor discrepancies in his testimony. PW12 is the photographer. His testimony is that on being asked by a police officer, he took Raju's photos using a digital camera. There is no reason to disbelieve him.
PW13 is a constable. His testimony is that he signed the seizure list dated June 12,2012 showing seizure of Raju's lungi and p.m. blood. PW14 is a home guard. His testimony is that following the investigating officer's instructions he carried Raju's dead body for post mortem, collected p.m. blood and Raju's lungi, and signed the seizure list dated June 12,2012. PW15 is a police ASI. His testimony is that he signed the seizure list dated June 12,2012. There is no reason to disbelieve PWs13, 14 & 15.
Relevant part of examination-in-chief of PW16, the investigating officer, is quoted below:-
"While in custody, he disclosed that he murdered Raju Karmakar and will take out the offending weapon which was kept in a secret place. This is the statement of accused Nripen Lohar Karmakar u/s 161 Cr.P.C. relating to recovery of the offending weapon while in custody. marked exhibit-11. I along with accused Nripen Lohar Karmakar and police force went to village Dumren. There was bamboo grove by the side of his house. From the bamboo grove he has recovered the Hansua by means of which he murdered victim Raju Karmakar. Two independent witnesses of the case village were taken to the secret place where from the accused recovered the 'Hansua'. Those witnesses are Uttam Barman and Paritosh Barman. Seal and label were pasted with the seized 'Hansua'.Accused Nripen Lohar Karmakar also signed on the seizure list. This is my signature."
Relevant part of cross-examination of PW16 is quoted below:-
"Many villagers gathered while weapon was recovered from bamboo grove during police custody. There is no note with regard to the existence of other bamboo grove situated in the village in my case diary. I can not say the name of owner of bamboo grove from which the offending weapon was recovered.....................................................................
Not a fact that while in custody accused Nripen Lohar Karmakar has not disclosed the place where from he will recover the offending 'Hansua' by means of which Raju Karmakar was murdered or that accused was not being taken to the place where from Hansua was being recovered or that I have not made proper investigation in this case."
The FSL report dated November 5, 2012 is Ex12. The following things were sent for FSL examination:- "A. Lungi cuttings with control. D.P.M. blood soaked gauze with control. E. Hansua scrapings with control." The FSL marked them 7, 8 & 9 respectively and its reports were as follows:- "The blood stains on the item Nos.7, 8 and 9 are disintegrated and their origin cannot be determined;" and "The blood group of the stains on the items noted below could not be determined for the reasons stated:- item Nos.7, 8 & 9 Disintegrated."
PWs1 & 2 testified that Raju was murdered on June 10, 2012. PWs3, 4, 8 & 9 testified that Raju was murdered. The dead body challan dated June 11, 2012 (Ex7) shows that the body sent for post mortem was that of Raju. PW7 testified that he did the post mortem on Raju's dead body on June 11, 2012. PW12 testified that he took the photos (MatExV) of dead Raju. Cross-examination of these witnesses did not reveal anything to disbelieve their testimonies of Raju's death.
The bodily cut injuries caused to Raju and recorded in the post-mortem report (Ex3) are these:- a vertebra deep cut wound measuring 6″x2″x½″ on the left neck - trachea fully cut - a ½″ gap abrasion in below left submandibular region - hyoid bone cut - deep lacerated wound, deep vessels and muscle cut on left side - two cut wounds measuring 2″x4″ on the left shoulder joint upto shoulder cuff - a superficial cut wound on right upper chest (above 1″−¼″, below ½″) - two cut wounds on right shoulder 1″x½″.
PW7, the doctor doing the post-mortem on Raju, testified that the bodily cut injuries he found on Raju's dead body and mentioned in his report (Ex3) were ante mortem and homicidal in nature. The deep cut wounds were mainly on Raju's neck. There can be no doubt that all the injuries were caused by the attacker with a cutlass like weapon. The vertebra deep wounds caused by the attacker cut Raju's trachea. The evidence proved beyond reasonable doubt that Raju's death was a case of culpable homicide.
PW1's testimony is that Raju was murdered on June 10,2012 at around 10p.m. She was not cross-examined on date and time of murder. PW2's testimony is that Raju was murdered on June 10,2012 at about 9.30p.m. and on date and time of murder he was not cross-examined either. PWs3 & 4 did not testify as to the date. They testified that at the time of the incident they were watching television. The inquest report(Ex10) shows that after registering UD Case No.23/12 dated June10,2012 the investigating officer commenced investigation on June 10,2012 at 11.05p.m.
Evidence thus clearly proved that the attacker attacked Raju and caused all the bodily cut injuries to him on June 10,2012 between 9.30p.m. and 11.05p.m.
PW1's testimony is that Raju remained seated on a bamboo bench belonging to PW2's tea stall; and that she saw Raju "in a pool of blood under scaffold." In cross-examination she said that while Raju's legs were on the bench, his head was "down facing towards earth." PW2's testimony is that Raju was murdered in front of his (PW2's) tea stall. He was not cross-examined on this. PW3's testimony is that hearing Raju's cries he came to the tea stall closing which he had left and in front of which Nripen had quarreled with Raju. PW4's testimony is that he found human blood in front of PW2's tea stall. Information (Ex5) and map(Ex9) case is that Raju was murdered in front of PW2's tea stall.
Evidence, therefore, proved beyond reasonable doubt that the attacker caused all the ante mortem homicidal bodily cut injuries to Raju in front of PW2's tea stall.
The prosecution case was that it was Nripen who attacked Raju and caused all the ante mortem homicidal bodily cut injuries to Raju with the sharp weapon (MatExIII) on June 10, 2012 at about 9.30 p.m. in front of PW2's tea stall; and it charged Nripen with Raju's murder. The Court of Session held Nripen guilty of Raju's murder. Hence the question is whether evidence proved beyond reasonable doubt that it was Nripen who had attacked Raju and caused the ante mortem homicidal bodily cut injuries that caused his (Raju's) death.
Mr. Mukherjee appointed by this court for Nripen has submitted as follows. The investigating officer started inquest, without making any GD entry, before FIR and closed it after FIR. Lakshmi accompanied Raju. Hence PW7 was supposed to know the fact of murder. Even then a UD case was registered. Lakshmi was present during inquest. Hence it is not known how she lodge FIR. The FIR could not have been lodged at midnight. Facts stated by Lakshmi in her information were missing in inquest report. The doctor on whose information the UD case was registered was not examined. A new story was made out in the FIR. Hence the FIR was a doubtful document.
Mr Mukherjee next submitted as follows. The s.164 statements were an amalgamation of the FIR case and inquest report. The fleeing story was absent in them. In PW3's statement the scene of crime changed. He said that Raju was lying on the road under an electric pole. Once the statements were exhibited, Nripen became entitled to refer to and rely on them, though the witnesses were not contradicted by them. Nripen's statement was recorded when he was in judicial custody. Hence it was not a s.27 disclosure statement.
Mr Mukherjee then submitted as follows. The charge was framed without supplying all the papers. The s.313 questions were in English. All the questions were too long. It was the prosecution case that Nripen was absconding. No evidence of absconsion was given. It was not put to Nripen under s.313 that he had absconded for 14 days. Witnesses testified that Nripen ran towards his house, and that they chased him upto his house. Hence it was necessary to show Nripen's house in the map. It was not shown.
Mr Mukherjee then submitted as follows. Witnesses to the inquest report were not examined. Except the highly interested PWs1, 2 & 3, no other person of the locality was examined, though, according to the prosecution, many saw Nripen fleeing from the scene of crime. Only at the time of the trial the prosecution came up with a case that Nripen was drunk. Whole basis of the conviction is the testimonies of PWs1, 2 & 3 who developed their case and Nripen's alleged confession dated July 5, 2012 made to the investigating officer.
Mr Mukherjee then submitted as follows. There is nothing to show the exact location of the place wherefrom the offence weapon was recovered. The seizure list shows that it was somebody else's property. No BSF personnel was examined. While one independent witness proved nothing, the two others were only tendered. The post-mortem doctor did not say whether the bodily injuries were enough to cause the death. Hence the conviction, if at all, could be only under s.326 IPC. The court below did not write a single line about the defence argument.
Mr Mukherjee has relied on the following decisions. On s.164 issue:-
Bhagat Ram v. Khetu Ram & Anr., AIR 1929 PC 110; Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Ch. Razik Ram v. Ch. J.S. Chauhan & Ors., AIR 1974 SC 667; Rameswar Dayal v. State of U.P., AIR 1978 SC 1558; George & Ors. v. St. of Kerala & Anr., AIR 1998 SC 1386; & Suresh Rai & Ors. v. St. of Bihar, AIR 2000 SC 2207. On s.27 issue:- Pulukuri Kottaya & Ors. v. Emperor, AIR 1947 PC 67; Udaybhan v. State of U.P., AIR 1962 SC 1116; Md. Inayatullah v. State of Maharashtra, 1976 SCC (Cri) 199; & St. of Haryana v. Ram Singh, 2003 CCrLR (SC) 103. On s.313 issue:- Sharad Birdichand Sarda v. State of Maharashtra, 1984 SCC (Cri) 487; & Raj Kumar Singh v. State of Rajasthan, 2013 CrLJ (SC) 3276. On absconsion:- Rahaman v. State of U.P., AIR 1972 SC 110; & Sujit Biswas v. State of Assam, 2013 CrLJ (SC) 3140.
The other decisions Mr Mukherjee has relied on are these. On doctor's opinion:-Chilamakur Nagireddy v. State of A.P., AIR 1977 SC 1998; & St. of J & K v. Hazara Singh, AIR 1981 SC 451. On interested witness:-Sharad Birdichand Sarda v. State of Maharashtra, 1984 SCC (Cri) 487. On credibility of witnesses:-
Sujit Biswas v. State of Assam, 2013 CrLJ (SC) 3140. On circumstantial evidence:-Sharad Birdichand Sarda v. State of Maharashatra, 1984 SCC (Cri)
487. On appreciation of legally admissible evidence and conjectures and surmises:-Sharad Birdichand Sarda v. State of Maharashtra,1984 SCC (Cri) 487;
Md. Faizan Ahmad v. State of Bihar, 2013 (2) CCrLR (SC) 231; Sujit Biswas v. State of Assam, 2013 CrLJ (SC) 3140 & Raj Kumar Singh v. State of Rajasthan, 2013 CrLJ 3276.
Mr. Singh, the Public Prosecutor, appearing for the State has submitted as follows. It is the UD case that was closed on June 11,2012 at 7.15a.m., not the inquest. The witnesses were not contradicted by their s.164 statements, not substantive evidence. Nripen made the disclosure statement when he was in the custody of the investigating officer. It led to discovery of the offence weapon. Witnesses saw Nripen fleeing from the scene of crime with the weapon in hand. Everyone was known. There was electric light. So it was possible for the witnesses to identify who was fleeing. It was not shown how non-mentioning of Nripen's house in the map and his s.313 examination caused him any prejudice.
Mr Singh has relied on the following decisions. On s.164 issue:-
Chinnammal v. St. of T.N. & Ors., 1997 SCC(Cri) 51; & Rajendra Singh v. St. of Uttaranchal, (2013) 2 SCC(Cri) 877. On s.27 issue:- In re Ramachandran, AIR1960 Mad 191; Niranjan Singh & Anr. v. Prabhakar Rajaram Kharote & Ors., 1980 SCC (Cri) 508; Jodha Khoda Rabari & etc. v. St. of Gujarat & etc., 1992 CrilJ 3298 (Guj); The PP, H.C. of A.P. v. J.C. Narayana Reddy & Anr., 1996 CriLJ 462 (AP); Bibhachha etc. v. St. of Orissa, 1998 CriLJ 1553 (Orissa); & Vikram Singh & Ors. v. St. of Punjab, 2010 AIRSCW 1465.
PW1's testimony is this. Nripen abused her and her people using filthy language. He was in a drunken state. Raju protested. Nripen was asked to go home. These all happened in front of PW2 Bipul's tea stall. Closing the tea stall she and her people left for their respective houses. Nripen left for his house. Raju remained seated on bamboo bench. She started cooking meal. After about half an hour she heard a cry - ma. She, her mother and other neighbours came out of their respective houses. She saw Raju in a pool of blood under scaffold (the bench). In street light she found Nripen fleeing from the scene of crime with the weapon in hand. She and her people chased Nripen.
PW1 was exhaustively cross-examined. She said, "The P.O. is about 15 cubits away from my house." She further said, "By means of street light I saw accused Nripen Lohar Karmarkar about 15/20 cubits away from the P.O. in fleeing condition." She said that PWs2 & 3 and many others chased Nripen. There is nothing which can be a reason to doubt PW1's testimony.
PW2's testimony is this. There was a hot altercation between Nripen and Raju. Raju asked Nripen to go home. But Nripen abused Raju using filthy language. Nripen left for his house. Closing tea stall he (PW2) went to his (PW2's) house. Hearing cries he came back to the scene of crime, found Raju with his throat cut, and in street light saw Nripen fleeing towards his (Nripen's) house with the weapon in hand.
PW3's testimony is this. There was a quarrel between Nripen and Raju. Nripen, in a drunken state, abused Raju using filthy language. Raju asked Nripen to leave the place. Nripen left the place. Raju remained there. Hearing Raju's shouting he (PW3) and his people came back to the scene of crime, found Raju with his throat cut and Nripen fleeing with the weapon. He (PW3) and his people chased Nripen upto his (Nripen's) house, but could not trace him.
PWs2 & 3 were cross-examined at length. PW2 said that about 100-150 people assembled at the scene of crime; that there were BSF jawans on duty. PW3 said that in street light he saw Nripen fleeing from the scene of crime with the weapon in hand; that Nripen was about 50 cubits away from the scene of crime; that about 50-60 persons chased Nripen; that after putting Raju in BSF vehicle he went to Nripen's house to catch him. Cross-examination of PWs2 & 3 did not reveal anything to doubt their testimonies.
PW8 testified that in his presence Nripen, while in police custody, brought out MatExIII from a clump of bamboos. In cross-examination he said, "There are stains on the 'Hansua' which cannot be said of which one." PW9 also testified that in his presence and in the presence of a police officer Nripen brought out MatExIII from a clump of bamboos. In cross-examination he said that one Gopal Majumder was the owner of the bamboo clump. There is no reason to doubt what PWs8 & 9 testified about the discovery of the offence weapon.
PW16 also testified about the discovery of the offence weapon(MatExIII) on July 6, 2012 on the basis of the information(Ex11) received from Nripen on July 5, 2012. He testified that MatExIII was brought out by Nripen in the presence of PWs8 & 9 from a clump of bamboos located by the side of his (Nripen's) house, where he (Nripen) had concealed it. There is nothing in his cross-examination that may be considered a reason to doubt his testimony. Testimonies of PWs8 & 9 materially corroborated his testimony.
Testimonies of PWs1, 2 & 3 proved the following facts. On June 10, 2012 at around 9.30 p.m. Nripen was engaged in an altercation with Raju in front of PW2's tea stall. Nripen, asked to go home, left the place. They also left for their houses. Hearing Raju's cries and shouting they all came out, found Raju lying on the ground with his throat cut and saw Nripen fleeing from the scene of crime with the offence weapon (MatExIII) in his hand. Nripen was chased. Testimonies of PWs8 & 9 proved that in their presence Nripen took out MatExIII from a clump of bamboos located near his house. And PW16's testimony proved the discovery of MatExIII in the manner testified by PWs8 & 9.
It is, therefore, evident that what implicate Nripen in the commission of the offence are:- (a) testimonies of (i) PWs1, 2 & 3 (victim Raju's wife Lakshmi, Lakshmi's elder brother Bipul, and Bivas, a son of Bipul, respectively), (ii) PWs8 & 9(Paritosh and Uttam, the two witnesses, in whose presence the investigating officer led by Nripen discovered MatExIII) and (iii) PW16 (the investigating officer);
(b) Nripen's disclosure statement (Ex11) providing leads for discovery of the offence weapon (MatExIII) under the seizure list dated July 6, 2012 (Ex4); and (c) the fact that Nripen surrendered himself to the court on June 25, 2012.
The question is why the testimonies of PWs1, 2, 3, 8, 9 & 16 ought to have been and should be disbelieved.
That PWs1, 2 & 3 were Raju's wife, wife's brother and wife's brother's son respectively was no ground to disbelieve their testimonies. They were the natural witnesses. Why no other villager corroborating their testimonies was available is a matter of speculation. Reluctance to testify in court as a witness is not unknown. PW2's cross-examination revealed only the existence of a gambling in the village. He expressed inability to say whether it was being conducted under Raju's supervision. He denied the suggestion that a gambler murdered Raju.
As to Nripen's house, not shown in the map (Ex9), in cross-examination PW1 said as follows. The scene of crime and Nripen's house were bordered by the Indo-Bangladesh Border Road, after five-six houses wherefrom was Nripen's house. Nripen's house and the road were not on a level. The house was at a lower level. Between the scene of crime and Nripen's house there were two turnings.
The topography of the scene of crime, as revealed by PW1's cross- examination, is this:-
".................On the western side of the P.O., my house is situated. On the eastern side of the P.O., there is a house of Bipul Mohanto. To the further east of that house, there is the tea stall. To the further east to the tea stall, there is a 'Maacha' made of bamboo............. Indo- Bangladesh border road is situated by eastern side. The house of the accused is situated after crossing 5/6 houses from the Indo-Bangladesh border road. Indo-Bangladesh road is to certain extent higher than the level of other land or houses. Height of house of accused Nripen Lohar Karmakar lower than Indo-Bangladesh border road .................. The P.O. is about 15 cubits away from my house......................... to reach the house of the accused Nripen Karmakar from the P.O. , there are two turning points..........."
The cross-examination of PW2 revealed the following topography of the scene of crime:-
"My house is intervened by one house of the de facto complainant. On the western side of my house, the house of the de facto complainant, Laxmi Mohanta is situated..........
On the northern side of my tea stall there is a B.S.F. security point of guard about 50/100 gauge away. One B.S.F. Jawan comes from one post to another post, similarly, Jawan of another post comes to that post. There will be crossing by and between them."
PW3 testified, "Our tea stall is made of jute sticks. There is a Jhap in front of the tea stall. We illuminated electric bulb in our tea stall." PW4 testified, "At the south-east corner of the Indo-Bangladesh border road my house is situated." The rough sketch map (Ex9) shows that the road runs North-South; that people were living and carrying on business building houses and structures along both sides of the road; that houses of PWs1 & 2 and tea stall of PW2 were clusterly located on the western side of the road; that near the scene of crime there were two electric poles (one on the western side of the road, the other on its eastern side).
It is not correct to say that since the s.164 statements (Ex1) were proved by their respective makers (PWs1, 2, 3, 8 & 9), the defence, though did not contradict the witnesses concerned by them, remained entitled to point out and rely on the contradictions. The statements were not substantive evidence; they could be used only to corroborate or contradict their respective makers. They were exhibited by the prosecution for relying on their corroborative value, if any; but that did not give the defence, consciously waiving its right to contradict the witnesses by them according to s.145 of the Indian Evidence Act, 1872, to rely on their contradictory value, if any.
In her s.164 statement PW1 said that Nripen picked up a quarrel with Raju; that she went to house and started cooking meal; that hearing a hue and cry she came out and found Raju with wound on neck lying on the ground; and that she saw Nripen leaving the place with the billhook in his hand.
In his s.164 statement PW2 said that hearing a hue and cry he came out of his house and found that Raju was struck by Nripen on neck with a billhook. In his s.164 statement PW3 said that hearing a hue and cry he came out of house, found Raju with wound on neck lying on the road under an electric pole, and heard that Nripen had attacked Raju with a billhook.
In his s.164 statement PW8 said that when he and PW9 were chatting at PW2's tea stall police brought Nripen; and that "from a distance police recovered a hansua from a" clump of bamboos "as shown by" Nripen. In his s.164 statement PW9 said that when he and PW8 were chatting at PW2's tea stall police brought Nripen; and that "from a little distance police recovered a hansua from a"
clump of bamboos "which was shown by" Nripen.
It is, therefore, evident that while PW1's s.164 statement materially corroborated the facts she testified to in court, the s.164 statements of PWs2 & 3 did not. PWs2 & 3 testified to the facts of quarrel and fleeing, not mentioned in their s.164 statements, and PW3 did not testify that he found wounded Raju lying on road under an electric pole, and that he heard that Nripen had attacked and wounded Raju - both he had said in his s.164 statement.
But, while the facts testified to by PW1 were corroborated by the testimonies of PWs2 & 3 on almost all material facts and vice versa, the defence chose not to contradict PWs1, 2 & 3 by their respective s.164 statements. Hence the contradictions noted hereinbefore could not and cannot be used while appreciating their testimonies, the substantive evidence, in court.
Nripen's s.161 statement dated July 5, 2012 is Ex11 and it is evident therefrom that the investigating officer recorded it at Balurghat Jail. The contents of Ex11 are to the effect that Nripen told the officer that if the officer took Nripen with him, then Nripen would bring the weapon, with which he had murdered Raju, out from the place where he hid it after committing the murder.
Ex11 has no value as to the confession Nripen made to the investigating officer. In view of ss.25 and 26 of the Indian Evidence Act, 1872 it could not be proved against him accused of murdering Raju. But the question is whether the information received from Nripen and leading to discovery of the offence weapon (MatExIII) could be proved by the prosecution against Nripen.
The contention is that it could not be proved; for it was received by the investigating officer when Nripen was in judicial custody and hence it was not an information within the meaning of s.27 of the Indian Evidence Act, 1872. The question, therefore, is whether Nripen provided the information leading to discovery of MatExIII when he was in the custody of the investigating officer.
Nripen surrendered himself to court on June 25, 2012 and he was remanded in judicial custody. The court allowed the investigating officer to interrogate him. The officer interrogated him in jail on July 5, 2012. There is no evidence that at the time of interrogation any other person was present.
Nripen in the hands of the investigating officer was under the officer's exclusive immediate direct control, while the indirect control was that of the court through the jail authorities. Hence it can be said that the officer received the information from Nripen when he was in his (the officer's) custody. The decision in Ramachandran, AIR 1960 Mad 191 fully supports this view.
Principles stated in the large number of decisions cited by Mr Mukherjee and Mr Singh are unexceptionable. But they are not to be applied to a case only for the sake of their use; they are to be applied for resolving questions resolvable by them. In this case no question required application of any of them, except the one in Ramachandran. And there is no reason to say that the s.313 examination caused Nripen any real prejudice.
The court is not to start appreciating evidence doubting the case of the prosecution. It is not that the court has to find out reasons for convicting the accused or acquitting him; it is to decide whether the prosecution evidence proves the charge the accused has been tried for. In the process it is not to doubt the testimonies of the prosecution witnesses for any and every reason, but only for the real reasons. And that is what is reasonable doubt.
In this case, there is no real reason to disbelieve the testimonies of PWs1,2,3,8,9&16. Referring to the insignificant minor omissions, discrepancies and contradictions in the s.164 statements of PWs1,2,3,8&9 their testimonies in court, the substantive evidence, cannot be rejected, especially when the defence did not contradict them by their respective statements; and reference to the absconsion aspect is not necessary for believing or disbelieving their testimonies.
Their testimonies, once collectively considered, lead to the only conclusion that it was Nripen who attacked Raju and caused him all the ante mortem homicidal bodily cut injuries mentioned in the post-mortem report (Ex3) with the weapon (MatExIII) and committed the culpable homicide. The evidence does not provide any reason to say that any Exception in s.300 IPC was applicable to the case. It was a clear case of murder.
The Court of Session passed a sentence of death with `50,000 fine, in default a five-year rigorous imprisonment. In the opinion of the Court of Session, the premeditation and brutality made it one of the rarest of rare cases. The opinion does not seem to be well founded. Premeditation makes a culpable homicide a murder and brutality is a part of every murder. These alone do not make a case one of the rarest of rare cases. Hence it was not a case for death sentence.
For these reasons, the death reference is disposed of and Nripen's appeal is partly allowed ordering as follows. Nripen's conviction of an offence under s.302 IPC is affirmed. The sentence of imprisonment for life is substituted for the sentence of death. The `50,000 fine, in default a five-year rigorous imprisonment, part of the sentence is maintained. The department shall take immediate steps under s.388 CrPC. Certified xerox.
(Jayanta Kumar Biswas, J.) Asim Kumar Ray, J:- I agree.
(Asim Kumar Ray, J.)