Jay Sengupta JUDGMENT
Md. Mumtaz Khan, J.
1. This appeal has been preferred by the appellant assailing the judgment and order of conviction dated March 6, 2006 and sentence dated March 7, 2006 passed by the learned Additional Sessions Judge, Fast Track Court Durgapur, in Sessions trial No. 27 of 2005 and arising out of Sessions Case No. 45 of 2005. By virtue of the impugned judgment, appellant was convicted for the commission of Offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and was sentenced to suffer imprisonment for life and to pay fine of Rs. 2000/- in default to suffer simple imprisonment for six months with a direction for set off against substantive sentence of imprisonment as per provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). The other accused, Bhabani Bauri, was acquitted from the charge punishable under Sections 302/109 IPC.
2. On June 19, 2004 in the morning, appellant took away the cycle of his younger brother Swapan Bauri from his house without any consent. As he did not return back Rumpa Bauri (PW.1), daughter of Swapan Bauri, brought back that cycle from the house of the appellant around 5.00 p.m. At about 8.00 p.m. Bhabani Bauri, mother of Swapan Bauri, came to their house and demanded that cycle from China Bauri, wife of Swapan Bauri, but when she refused, quarrel started between China Bauri and Bhabani Bauri. Bhabani Bauri then left the house, uttering filthy languages. Within five minutes Bhabani Bauri again came accompanied by the appellant. Appellant then entering into the house charged China Bauri as to what she had said to his mother about the cycle and threatened that he will see her. Appellant, who had a sharp katari with him, then by putting China Bauri on the ground started striking her on her neck by the said "katari". On seeing all these, P.W.1 while crying and pulling the clothes of the appellant requested him not to assault her mother but appellant pushed her away. At that time Bhabani Bauri standing in the courtyard was instigating the appellant to kill the victim. P.W.1 then started shouting calling people to save her mother from her uncle. She also rushed to her uncle Nabin Bauri's house and reported the incident to him. Thereafter, on their arrival they found the victim lying with severe cut and bleeding injuries. Appellant and his mother Bhabani Bauri before arrival of Nabin Bauri had already fled away therefrom. Para people on witnessing the bleeding injuries on the person of the deceased informed Police.
3. At about 21.15 hrs. PW 2, Officer-in-charge of Cokeoven P.S., got an information over telephone from Councilor Amitabha Chatterjee that dead body of the wife of Swapan Bauri was lying their courtyard. He diarised the said information vide GD Entry No. 898 dated June 19, 2004 and proceeded to the place of occurrence along with PW 9 and force. On arrival, PW 2 found the dead body of the victim China Bauri bearing multiple injuries soaked with blood lying in the courtyard of her house. P.W.1 then handed over a written complaint (Ext. 1), scribed by PW 4, to P.W.2 who then forwarded the same to Cokeoven P.S. through ASI Uttam Mondal for registering a case and directed PW9 to take up investigation.
4. On the basis of the above written complaint of PW1, Cokeoven Police Station Case No. 66 dated June 19, 2004 was started against the appellant and Bhabani Bauri under Section 302/114 IPC.
5. On the same night, PW 9 held inquest over the dead body of the deceased China Bauri in presence of PW 3, PW4, PW5 and PW 6 and prepared a report (Ext 3) and thereafter, sent the dead body of the victim to the Sub-Divisional Hospital, Durgapur for post mortem examination. During inquest the name of appellant surfaced.
6. On June 20, 2004, PW 7 conducted postmortem examination over the dead body of the victim. During postmortem examination autopsy surgeon(P.W.7) found incised wound 2" X 1" X bone depth over the middle part of right arm, incised wound 1" X 1" X .5" upper part of right arm incised wound 6" X 2" X bone depth over the upper part of right side of neck, incised wound 6" X 2.5" bone depth over the middle of right side of neck, Shaft humerus right cervical vertebra, incised wound 3" X .5" X bone depth over the middle part of scalp membrane covering brain was congested and lacerated, inside the brain there was cerebral hematoma, pleura was healthy and opined that the death was due to hemorrhage shock due to the above injuries which were ante mortem in nature. After post mortem examination PW 7 prepared a report (Ext 5).
7. PW9 investigated the case and thereafter on completion of investigation submitted charge sheet against the appellant under Section 302 IPC and against accused Bhabani Bauri under Section 302/109 IPC.
8. On June 10, 2005 charge under Section 302 IPC was framed against the appellant and under Section 302/109 IPC against Bhabani Bauri and on their pleading not guilty, trial commenced.
9. Prosecution, in order to prove the case, examined 9 witnesses and also produced and proved written complaint, formal FIR, inquest report, post mortem report, rough sketch map with index, seizure lists, dead body challan, statement of P.W.1 recorded under Section 164 Cr.P.C. etc. and thereafter on completion of trial and examination of the accused persons namely appellant and his mother Bhabani Bauri under Section 313 Cr.P.C. learned trial judge passed the impugned judgment.
10. Mr. Anwar Hossain, learned amicus curiae appointed by the Court submitted that the impugned judgment and order of conviction and sentence are not sustainable in law as the case is based on the solitary interested eye witness P.W.1 and there was no independent eye witness to the crime, there is a doubt with regard to the place of occurrence, weapon of offence was not seized, wearing apparels were not sent to the FSL for examination, inquest over the dead body was held before lodging of the FIR, GDE which was recorded after getting information of the offence was not produced and there was doubt with regard to the authenticity of the FIR as two complaints were given at the place of occurrence. According to Mr. Hossain, prosecution has failed to prove the charge under Section 302 of the Indian Penal Code against the appellant beyond any shadow of doubt. Alternatively it was submitted by Mr. Hossain that even if it is proved that appellant has caused the death of the victim then provisions of 304 part (1) IPC at best can be said to be attracted as the incident happened at the heat of the moment without any premeditation.
11. Mr. N.P. Agarwala, learned advocate appearing for the State submitted that the incident was witnessed by PW 1, daughter of the deceased and she has vividly narrated the incident and the same was duly corroborated by the other prosecution witnesses and medical evidence. He also submitted that the appellant had a "katari" with him from beforehand and the nature of the injuries inflicted on the victim shows the intention of the appellant was to cause the death of the victim. According to Mr. Agarwala, learned trial judge was quite justified in passing the impugned judgment and order and there was no illegality in the same.
12. We have considered the submissions of the learned Advocates appearing for the respective parties and gone through the evidence and materials on record to consider the propriety of the impugned judgment and order of conviction and sentence passed by the learned Court below.
13. It is not in dispute that the victim died on June 19, 2004 and her death was unnatural. It was evident from the evidence of the Doctor (PW 7) and the post mortem report (Ext 5) that on June 20, 2004 during post mortem examination over the dead body of deceased China Bauri the doctor found two incised wounds of different dimensions over middle part of right arm one incised wound over the upper part of the right side of neck and another one on middle part of right side of the neck and last one on middle part of scalp and opined that the death was due to hemorrhage shock due to the above injuries which was ante mortem in nature and such injuries may be caused by a sharp cutting weapon like "dao" "katari" or any weapon of like nature. The defence did not dispute or deny the above finding of the doctor.
14. Learned Trial Judge convicted the appellant by taking into account the evidence on oath of eye witness namely PW 1 as also her statement recorded under Section 164 Cr. PC being corroborated by PW 3 PW 4, PW 5 and PW6 besides the evidence of the doctor and I.O. but did not find sufficient material to prove the allegation of abatement of murder against the accused Bhabani Bauri and accordingly acquitted her from the charge under Section 302/109 IPC.
15. With regard to reliance on the solitary eye witness, it is a settled proposition of law of evidences that examination of any particular number of witnesses is not required for proving the prosecution case and reliance can be placed on the solitary witness, if the court comes to the conclusion that the said statement is true and correct version of the case of prosecution.
16. PW1 is the daughter of the deceased and also the defacto-complainant. She deposed before the Court on August 17, 2005 and at that time she was aged about 15 years. Appellant is the uncle of P.W.1. On perusal of the evidence of P.W.1, it was evident that she has vividly narrated the incident and fully corroborated the FIR. She had specifically deposed that on the relevant day of Rathajatra, appellant took away her father's cycle from their home. As her uncle namely appellant did not return back, she brought back that cycle from his house at 5 p.m. Then at about 7/7.30 p.m., her grandmother Bhabani Bauri came to their house and demanded the cycle saying that this will be required for tomorrow. When her mother namely the victim Chaina Bauri did not agree saying that her husband has objected for giving the vehicle, her grandmother used abusive languages. Thereafter, within five minutes appellant came to her house and asked her mother as to what she has stated to his mother and threatened her mother. She then saw the appellant to strike her mother with a "katari" which was kept behind his back causing injuries on her person. She requested the appellant not to cause any hurt and release her mother but he did not listen. She then started shouting and calling her uncle Navin Bauri. Thereafter, when she came with her "jetha" she found the dead body of her mother lying in a pool of blood. Police on being informed over telephone, came there and examined the dead body of her mother. On being asked she narrated to the police in details what she saw at the spot. She also deposed that she made statement before the Magistrate and even identified her signatures (Ext. 2/1 series) on the statement recorded by P.W.8 under Section 164 Cr.P.C. The above statement of P.W.1 made on oath before court during trial also found corroboration from her statements made before the Magistrate under Section 164 Cr.P.C. She was cross examined by the defence at length and in spite of lengthy cross examination her evidence remained unshaken and no material contradiction was brought out which could lead to disbelieve her evidence. It came out during cross examination that her father is a day labour and they are poor and she has read up to class IV. She admitted that her grandmother and uncle reside at one place and she along with her parent reside at another place in the same village and they had a very good relationship. It also came out during cross-examination that her father was not in the house and that their house comprised of only one room and a varandah which is used as kitchen. She denied the defence suggestion that her mother had illicit relation with her uncle and her father caused hurt to her mother and in order save him she has falsely implicated her uncle. The evidence of P.W.1 appears to be trustworthy and reliable and in the absence of any material on record there appears no reason to discard her evidence.
17. The above statements of P.W.1 also find corroboration from P.W.3, P.W.4, P.W.5 and P.W.6 who came to the place of occurrence immediate after the occurrence after hearing hue and cry and found the victim lying dead in the courtyard having severe cut and bleeding injuries on her person and learnt from PW 1 with regard to the involvement of the appellant in causing such injuries on the victim resulting in her death.
18. PW 3, Nabin Bauri, is the "jetha" of P.W.1 whom she went to call after seeing the incident of assault on her mother and being unable to resist the assailant. He has deposed that it was the day of Rathajatra and on that date at about 8.00 p.m. while he was at the house, PW 1 came there weeping and reported that her mother has been cut by the appellant by a katari. Accordingly, he rushed to the place of occurrence along with PW 1 and saw the dead body of Chaina having multiple bleeding injuries. He also deposed that on being asked, PW 1 narrated the entire incident and told him in presence of her father and other co-villagers assembled there that the appellant caused hurt to her mother by a "katari". He also deposed that the incident took place due to dispute over a cycle between the deceased and the appellant. Police came there and saw the dead body of the victim and enquired from them. Police then prepared inquest report and he put his signature thereon. He identified the appellant in course of examination.
19. PW 4 is a co-villager and scribe of the complaint. He also deposed that on hearing hue and cry of PW 1 he along with others went to her house and saw the blood-stained body of China Bauri lying in their courtyard having marks of injuries on her shoulder and hand. On being asked PW 1 told him that the incident took place relating to dispute over cycle and the appellant killed her mother by inflicting cut injury. On being informed police came and made inquest over the dead body in his presence and also seized blood stained earth, etc. by a seizure list and obtained his signatures on those documents. He also deposed that he scribed the complaint as per instruction of PW1 and after reading the same, PW 1 put her signature thereon. He identified the appellant in course of examination before Court. During cross examination also he clearly stated that at the relevant time he was at his house and heard cries of PW1 who was shouting "kate diayache, kate diyache" and accordingly he went there and saw the dead body in the house and looking at the dead body he became afraid and started trembling and PW 1 was mentally upset and became tensed and was weeping beside her mother.
20. PW 5, a local resident, has also deposed that on the relevant date and time after hearing hue and cry of PW 1 he along with others went to the place of occurrence and saw China Bauri lying in the courtyard in seriously injured condition and there were blood stains on her body. He also saw injuries on her shoulder and hands. On being asked PW 1 told them that her uncle Tapan @ Jagu after committing murder of her mother fled away. Thereafter, police came and prepared the inquest report in their presence and also seized blood-stained earth from the place of occurrence. He identified his signatures on the inquest report as also the seizure list. During cross examination he clearly stated that he heard the incident directly from PW 1 and at that time many people were present there.
21. PW 6, the husband of the deceased, deposed that it was the day of Rathajatra and on that date he had been to a shop and there he heard about the incident. He then rushed to his house and saw his wife lying in the courtyard having blood injuries on her shoulder and hand. PW 1 then told him that the appellant caused those injuries and before the incident appellant demanded his cycle from his wife and as his wife refused to give him the cycle appellant threatened her with dire consequences. He also narrated the incident to the police that he heard from his daughter. He was also a witness to the inquest and seizure.
22. Regarding the question of credibility of the evidence of interested witness, it was observed by the Hon'ble Apex Court in Sarwan Singh & Ors. vs. State of Punjab, reported in MANU/SC/0169/1976 : (1976) 4 SCC 369 that even though an eyewitness might have belonged to the group of the deceased and that witness came from one particular group was sufficient to show the interested nature of evidence, but it was not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care and once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness has a ring of truth such evidence could be relied upon even without corroboration. In Alamgir vs. State (NCT, Delhi), reported in 2003 SCC (Cri) 165 it was also observed by the Hon'ble Court that reliability of a witness cannot be questioned on the ground that she is an interested witness. The test of creditworthiness ought to be the guiding factor.
23. In the instant case, we find from the evidence of P.W.1, the only eye witness, that she had fully corroborated the prosecution case. She is a young girl who deposed before the court after about one year of the incident but she withstood the cross-examination with courage and boldness and her testimony could not be impeached by the defence. The evidence of eye witness as also the post occurrence witnesses on oath appear to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears to be no reason why so many witnesses including the eye witness should falsely implicate the appellant, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate him. In such circumstances, there was no reason to reject the same. Moreover, FIR was lodged at the P.S. on the same date immediate after the death of the victim directly naming the appellant. From the inquest report (Ext. 3) it was evident that the same was done in between 21.35 hrs. to 22.15 hrs. by PW 9 in presence of PW 3, PW4, PW5 and PW6 and during inquest he also found cut injuries on the person of the deceased. The name of the appellant as assailant and the weapon used in the causing those injuries were also evident from the copy of the inquest report. It is true that inquest report is not a substantive piece of evidence and contents thereof cannot be treated as evidence. The above oral evidence of the prosecution witnesses also found corroboration from medical evidence.
24. Therefore, the impugned judgment does not require our interference on the above ground.
25. With regard to the submissions that the place of occurrence was not established beyond doubt and differs from witness to witness does not appear to be correct as we find from the written complaint (Ext. 1), rough sketch map with index (Ext. 7), inquest report (Ext. 3), seizure list (Ext. 4) as well as evidences of the PW.2, P.W.4, P.W.5 and P.W.6 that P.O. is the courtyard of the victim. PW 6 also affirmed the same during cross examination. PW 9 though stated during cross examination that place of occurrence is bank of a pond but from the sketch map (Ext 7) it was evident that place of occurrence is the courtyard which is adjacent to a pond. Furthermore, it was P.W.9 who held inquest, prepared rough sketch map with index, seized blood-stained earth, controlled earth etc. where P.O. has been shown as the courtyard of the victim. So there was no ambiguity with regard to the place of occurrence. In view of the above we do not find any merit in the submission of the learned Advocate for the appellant with regard to the place of occurrence.
26. With regard to the non-seizure of weapon of offence and not sending the seized articles for forensic examination, we must observe that the investigation in this case has been mostly done unsatisfactory and the investigating officer was not conscious of his responsibilities. The wearing apparel of the deceased, blood stained earth collected from the spot or the blood collected were not sent for chemical examination for the reason best known to him. We had expected better from the investigating officer who was investigating a serious case of murder. It is settled law that for certain defects in investigation, lapses on the part of the investigating officer, the accused cannot be acquitted when the prosecution case is otherwise proved based on the testimony of the eye witness corroborated by post occurrence witnesses and the medical evidence. In the instant case, we have already found that P.W.1, the only eye witnesses has vividly narrated the entire incident implicating the appellant and the weapon used in the commission of the offence and she withstood the rigour of cross-examination and remained unshaken during cross-examination and the same also found corroboration from the post occurrence witnesses and the medical evidence.
27. Therefore, our interference with the impugned judgment is not required on the above ground.
28. With regard to the submission that inquest was made before receipt of the FIR on the police station, we find from the evidence of PW 2, the Officer in Charge of Cokeoven Police Station that on getting information over telephone at 21.15 hrs from Councilor Amitabha Chatterjee of Ward No. 38 Durgapur, he diarised the massage vide GDE No. 898 dated June 19, 2004 and went to the place of occurrence along with PW9 and found the dead body of the victim lying in the courtyard having multiple injuries on her entire body and there he received the complaint from PW 1 and forwarded the same to the police station. He also identified his endorsement (Ext. 1/2) and written complaint (Ext 1). From Ext. 1 it was evident that the complaint was received at 21.25 hrs by PW 2 and he forwarded the same to the police station through ASI Uttam Mondal for staring the case and the said complaint was received at the police station 22.25 hrs. From the inquest report (Ext 3) it was evident that the same was held in connection with Cokeoven P.S. case No. 66 dated June 19, 2004 and it commenced at 21.35 hrs which is after receipt of the complaint by PW 2. In view of the above it cannot be said that the inquest started before the receipt of the complaint. There is no rule of law that the inquest can be held only after receipt of the complaint at the police station. Therefore, our interference is not required on that score.
29. With regard to the story of submitting of two complaint at the place of occurrence and non production of GDE during trial, we do not find any merit in the same as no where it is stated by PW1 that two complaints were submitted by her. On the other hand she identified, Ext 1, to be complaint submitted by her to the police. This has also been corroborated by PW 9. P.W.2 has also stated that at the spot he received the complaint (Ext. 1) from PW 1, the daughter of the deceased and forwarded the same to the police station for registration of the case. He also identified his signature and endorsement made therein (Ext. 1/2). Similarly, non production of the GDE during trial cannot wipe out the entire evidence of prosecution witnesses and cast any doubt to the prosecution case. It was the duty of the investigating officer to seize the same but he did not do so which shows lapses on the part of the investigating officer. Moreover, the said information over telephone was given by Councilor to P.W.2 only informing that the dead body of the wife of Swapan Bauri was lying in their courtyard requesting him to send police there. He was not the witness to the occurrence, so even if there was non disclosure of name of the assailant it cannot be said to be fatal for the prosecution case as immediately on getting information, P.W.2 along with force went to the P.O. where a complaint disclosing the name of the appellant as assailant was handed over by P.W.1. The inquest was also held immediately thereafter where the name of the appellant surfaced as assailant.
30. The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I IPC, as raised by the learned Amicus Curie. In the case in our hand, we find that appellant became furious due to victim's refusal to give her husband's cycle and accordingly on coming to know about the same came at the house of the victim with a katari and while threatening her put her down and began to strike her with that katari on her neck and other parts of her body causing severe cut and bleeding injuries therefrom which resulted in her spot death. During postmortem examination doctor found two incised wounds of different dimensions over middle part of right arm, one incised wound over the upper part of the right side of neck and another one middle part of right side of the neck and last one on middle part of scalp and opined that the death was due to hemorrhage shock due to the above injuries which were ante mortem in nature and such injuries may be caused by a sharp cutting weapon like "dao", "katari" or any weapon of like nature. So, the number and nature of the injuries suggest that the intention was clearly to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302 IPC against the appellant.
31. After scrutinizing the entire evidence on record, we do not find any illegality in appreciation of evidence, or in arriving at the conclusion as to the guilt of the appellant by the learned Trial Court.
32. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.
33. A copy of this order along with the LCR may be send down to the learned Trial Court forthwith.
34. Urgent photostat certified copy of this judgment, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
Jay Sengupta, J.
I agree
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