Hemanta Biswas Vs. The State of West Bengal - (High Court of Calcutta) (13 Sep 2018)

Non-collection of FSL report might be a defect of investigation which could not result in acquittal of an accused, when enough evidence was available for conviction

MANU/WB/0829/2018

Criminal

Present appeal has been preferred by the Appellant assailing the judgment, order of conviction and sentence respectively passed by the learned Additional Sessions Judge, arising out of Sessions Case convicting the Appellant for the commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2000 in default to suffer rigorous imprisonment for further period of one year.

Admittedly, none of the witnesses examined by the prosecution are the witness to the occurrence and the case is based on the circumstantial evidence. It is the settled proposition of laws that, where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the offence of the accused. The chain of circumstances should be of a conclusive nature and must be completed and most clearly point out to the guilt of the accused.

With regard to the motive behind the murder, it was the specific allegation of P.W. 1 in her complaint that for the last 2/3 days before the death of Kusum Biswas, appellant started suspecting his wife of having illicit relation with outsiders which gave rise to strained relation in their family life. From the trend of cross-examination also, it was evident that there was a strained relation in the marital life of the Appellant and victim over the issue of chastity of the victim. Thus, the existence of motive was very much there.

In the matter of Promode Dey v. State of West Bengal, it was decided by the Hon'ble Supreme Court that, non-collection of FSL report might be a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction. This principle has also been repeated and reiterated by the Hon'ble Apex court in a number of decisions time and again.

Investigating officer (P.W. 13) though seized bloodstained weapon of offence, blood stained earth etc. and sent the same for forensic examination but could not collect the same. Even P.W. 12, who submitted the charge-sheet, specifically stated that he failed to collect the FSL report inspite of several attempts. He was not cross-examined by the defence on this score. Non collection of FSL report at best could be termed as negligence on the part of the I.O. and defect in investigation. Non production of the dao during trial also cannot wash out the evidence of prosecution witnesses who saw the same in the hand of the appellant in the room where dead body of the victim bearing sharp cut injuries was found. The place of occurrence is the room of the appellant. This has duly been proved by P.W. 1, P.W. 2, P.W. 3 and P.W. 4. This also found corroboration from the rough-sketch map (Ext. 6). Dao was used in the commission of the offence. This also finds support from the medical evidence.

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 of IPC against the Appellant. There is no illegality in appreciation of evidence, or in arriving at the conclusion as to the guilt of the appellant by the learned Trial Court. Appeal dismissed.

Relevant : Promode Dey v. State of West Bengal, reported inMANU/SC/0231/2012

Tags : CONVICTION CIRCUMSTANTIAL EVIDENCE VALIDITY