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2012 DIGILAW 19 (CAL)

Chhutu Singh Thakur v. STATE OF WEST BENGAL

2012-01-06

G.C.GUPTA, TARUN KUMAR GUPTA

body2012
JUDGMENT GIRISH CHANDRA GUPTA 1. THIS appeal is directed against a judgment dated 31st January, 2008 passed by the learned Additional Sessions Judge, 3rd Court, Purulia in Sessions Case No. 97 of 2007 corresponding to Sessions Trial No. 10 of 2007 arising out of G/R Case No. 612 of 1997 in connection with Jhalda P.S. Case No. 71 of 1997 by which the learned trial Judge held the appellant guilty of an offence punishable under Section 302 of the Indian Penal Code and by an order dated 1st February, 2008 sentenced him to rigorous imprisonment for life as also to pay a fine of Rs. 10,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of 2 years. 2. THE case of the prosecution briefly stated is that on 30th June, 1997 at about 7O clock in the morning Muchuk Singh, a cousin of the accused, was chased by the latter and was mercilessly hacked to death by a tangi in the courtyard of the defacto complaint (P.W.1) in presence of the mother and the Jethima of the defacto complaint for unknown reasons. THE written complaint was lodged at about 12.30 hrs. THE distance between the place of occurrence and the Jhalda P.S was about 14 Kms. THE inquest was held at about 14.45 hrs. on 30th June,1997. THE inquest report is ext. 2 wherein it is indicated that the victim Muchuk Singh was killed due to family disputes. In the written complaint besides indicating that the mother and the jethima of the defacto complainant were the witnesses to the incident it was also indicated that Monbodh Mahato had seen the accused escaping with a tangi in his hand. THE mother of the defacto complainant died before the trial commenced. Therefore, the only witness according to the F.I.R., available at the time of trial was the Jathima of the defacto complainant and the said Monbodh Mahato. THE Jethima in her deposition adduced on 7th August, 2007 deposed that she was 100 years old. According to her when the incident took place besides her no one else was present. When she came to give evidence she was practically blind. She claimed that at the time when the incident took place she had her eyesight. She did not however answer the question put to her in the crossexamination as to when was she interrogated by the police. When she came to give evidence she was practically blind. She claimed that at the time when the incident took place she had her eyesight. She did not however answer the question put to her in the crossexamination as to when was she interrogated by the police. She admitted that when the police interrogated her she could not see well. Mr. Kapor, learned Senior Advocate and former Additional Solicitor General appearing as the amicus curae to represent the indigent appellant submitted that the evidence adduced by the P.W.2 was far from satisfactory and could not be relied upon. According to him the witness was blind even on the date of the incident. She admitted during her cross-examination that she could not see well when she was interrogated by the police. The interrogation is likely to have taken place immediately after the incident or at the highest within a matter of months. Mr. Kapor contended that her blindness is further established by the fact that during her examination-in-chief she did not claim to have witnessed the incident. The evidence adduced by this witness during her examination-in chief reads as follows :- Muchuk Singh was my debar. He is no more. He was cut down and murdered by accused Chhutu. The murder took place on the 15th Ashar, on a Monday. I was then in my house. No one else was then in my house. It was then about 7 a.m. I have practically lost my vision at present, due to cataract. I had my vision at the relevant time. I am about 100 years old. {The witness is very old and aged and is clearly infirm). I can see very little due to cataract. 3. THE only other witness who according to the written complaint had seen the accused escaping from the place of occurrence with a tangi in his hand is Monobodh Mahato (P.W.4) who in his examination-in-chief deposed as follows: - I am resident of vill. U-hatu, under P.s. Jhalda. I knew Muchuk Singh, of my village. He is no more. Muchuk Singh was cut down and murdered by accused Chhutu Singh, who is present in Court today, (identified), about ten years ago, in the month of Ashar. Mr. Kapor contended that the case of the prosecution appearing from the written complaint was not supported by the P.W.4. 4. I knew Muchuk Singh, of my village. He is no more. Muchuk Singh was cut down and murdered by accused Chhutu Singh, who is present in Court today, (identified), about ten years ago, in the month of Ashar. Mr. Kapor contended that the case of the prosecution appearing from the written complaint was not supported by the P.W.4. 4. BESIDES, the eye witnesses the case of the prosecution rests upon an alleged discovery of the offending weapon and an alleged extra-judicial confession. The offending weapon, it is alleged, was discovered by the police on the basis of statement made by the accused. The alleged statement allegedly made by the accused was not recorded nor was any such writing produced or exhibited in Court. Therefore, the only thing available to the court is the seizure list (ext.5) which appears to have been witnessed by two independent witnesses namely Charan Singh Thakur and Netai Kalindi. The said Netai Kalindi was not examined and the said Charan Singh Thakur (P.W.5) admitted in his crossexamination that the tangi was seized, early in the evening of the relevant day, but I cannot say the date of the seizure, nor can I specify the time of seizure, more accurately. I was not present at the scene, at the moment the tangi was recovered. The alleged confession according to the P.W.5 was made by the accused at the time of recovery of the offending weapon. Mr. Kapor contended that the alleged recovery and the alleged extra-judicial confession are all figments of imagination of the police which is firmly established by the admission of the P.W.5 that he was not present at the time of recovery of the alleged offending weapon. The only other witness to the seizure was not examined. The offending weapon was not even produced in Court nor was the same shown to the autopsy surgeon. The last witness to be examined was the I.O. himself. He admitted that he did not obtain opinion of the autopsy surgeon as to whether the death of the victim could have been caused by that tangi. The tangi was never sent to the Forensic Science Laboratory. The Tangi, as a matter of fact, was produced in Court only when the last witness that is the I.O himself was examined. He admitted that he did not obtain opinion of the autopsy surgeon as to whether the death of the victim could have been caused by that tangi. The tangi was never sent to the Forensic Science Laboratory. The Tangi, as a matter of fact, was produced in Court only when the last witness that is the I.O himself was examined. The I.O. further admitted during his cross-examination that It is not noted in the C.D., that the seized Tangi was duly entered in the thana Malkhana register. The Tangi produced in Court, does not have any Malkhana register No. embossed on it. 5. MR. Kapor contended that the possibility of a tangi having been implanted for the purpose of propping up a false case cannot be ruled out in the facts of this case. Other circumstances lending support to this theory are that (a) there is no explanation why was the accused not arrested soon after the incident nor is their any indication as to the steps taken by the police to apprehend the accused; (b) the accused appears to have been apprehended on 25th October,1997 but the relevant arrest memo which could have indicated the place of arrest was also not on the record; (c) Admittedly the Tangi was never sent to the F.S.L; (d) Admittedly the Tangi was not even shown to the autopsy surgeon in the Court. The finding of the learned trial Judge that In this Case, since one witness to the seizure Viz., P.W.5 Charan Singh Thakur has clearly proved the seizure, as also the seizure list, then it is manifest that the credentials of both, the seizure and the seizure list cannot be assailed on any ground whatsoever, is clearly bad according to MR. Kapor for reasons already indicated. The finding of the learned trial Judge that the prosecution has been able to prove from the affirmative eye with an account of Radhika Mura, that on the fateful day, accused Chhutu singh Thakur assaulted Muchuk Singh Thakur with a Tangi in the Court yard of her house, is clearly bad according to MR. Kapor because Radhika did neither depose that she witnessed the incident nor did she depose that the victim was assaulted by a Tangi as would appear from her examination-in-chief indicated above. MR. Kapor therefore contended that the conviction is clearly bad and should be set aside. 6. MR. Kapor because Radhika did neither depose that she witnessed the incident nor did she depose that the victim was assaulted by a Tangi as would appear from her examination-in-chief indicated above. MR. Kapor therefore contended that the conviction is clearly bad and should be set aside. 6. MR. Sanyal, learned Additional Public Prosecutor appearing for the state submitted that F.I.R was instantaneously lodged indicating the name of the assailant which has also been reflected in the inquest report prepared contemporaneously. Two out of the three witnesses indicated in the written complaint were examined. The third one could not be examined because she pre-deceased the trial. The witness Radhika (P.W.2) is an aged infirm lady and she could not be blamed if she had a failing memory. It is not suggested that she had any animus to falsely implicate the accused. The accused was not apprehended obviously because he was absconding. Immediately after he was arrested He was interrogated and pursuant to the statements made by him the offending weapon was discovered. The fact that the offending weapons was not sent to the FSL or was not shown to the autopsy surgeon, according to him, were mistakes during the investigation, as also during the trial but for that the case of the prosecution should not be thrown overboard. There is according to him at least a moral certainty that the appellant committed the murder. Therefore the view taken by the Trial Court is a possible one and the same should not be disturbed. We have carefully considered the submission advanced by the learned Advocates appearing before us. The case of the prosecution has three limbs. (A) The evidence of the eye-witness. (B) Discovery of the offending weapon. (C) Extra Judicial Confession. 7. SO far as the extra-judicial confession is concerned the evidence of Charan Singh Thakur (P.W.5) is that such confession was made by the accused when offending weapon was recovered pursuant to the statement made by him. P.w.5 has clearly admitted in his cross-examination that he was not present when the offending weapon was discovered. Therefore, the credibility of the alleged extra-judicial confession vanishes. The credibility of the recovery of the offending weapon is also seriously shaken by the fact that the prosecution chose to withhold Netai Kalindi the other witness to the discovery and the seizure of the offending weapon. Therefore, the credibility of the alleged extra-judicial confession vanishes. The credibility of the recovery of the offending weapon is also seriously shaken by the fact that the prosecution chose to withhold Netai Kalindi the other witness to the discovery and the seizure of the offending weapon. The only other thing, which remained, is the evidence of P.W.2 Radhika, a 100 years old woman, who admittedly was blind on the day when she came to depose in the court. She was unable to disclose when did she lose her vision. The incident took place about 10 years prior to the death when she was deposing in Court. She in that case was about 90 years old on the date of the incident. She deposed that she was in the house when the incident took place in the courtyard. A person who was in the house may not have been aware at what was happening in the courtyard. The doubt deepens from the fact that it is alleged in the written complaint that the P.W.2 and the deceased mother of the P.W.1 requested the accused to desist from the assault but in spite thereof he persisted and killed the victim. This part of the case appearing from the written complaint was not supported by the P.W.2. She, as matter of fact, did not even depose that she had witnessed the incident nor did she depose as regards the weapon used by the accused. It is, therefore, difficult to proceed on the basis that the P.W.2 is, in fact, an eyewitness. She could very well be repeating what she heard from others or what she believed to have happened. This theory gets further support from the fact that in the written complaint it is alleged that the reason why the victim was assaulted was not known but in the inquest report it is indicated that the assault took place due to family dispute. P.W.1 in the written complaint alleged that the victim used to reside in the room of the accused. The victim and the accused were staying in the same room is thus an admitted fact. They were cousins is also an admitted fact. P.W.1 in the written complaint alleged that the victim used to reside in the room of the accused. The victim and the accused were staying in the same room is thus an admitted fact. They were cousins is also an admitted fact. The divergent story as to lack of knowledge as to why was the victim assaulted appearing from the written complaint and the fact appearing from the inquest report that the victim was killed due to family disputes has once again made the things most unclear. The witnesses obviously did not disclose the truth and the evidence which has come on the record leaves enough space for doubt as to the part actually played by the accused if any. If there was family dispute between the two the theory of false implication cannot be ruled out. At the same time dispute between the two can also support the theory of assault by the accused. The evidence on the whole is far from satisfactory. The arguments advanced by Mr. Kapor assailing the evidence as well as the judgment cannot easily be got rid of merely by the fact that the written complaint was contemporaneously lodged or that the case of the prosecution finds support from the contents of the inquest report or that the old infirm lady might have had a failing memory. That question does not really arise in the examination-in-chief no serious attempt was even made to ask the relevant questions touching the case of the prosecution. 8. THE learned trial Judge obviously was wrong in proceeding on the basis that the P.W.5 had proved the seizure of the offending weapon. THE learned trial Judge was also wrong in holding that the omission to record the statement of the accused under Section 161 Cr.P.C was insignificant. THE learned trial Judge was also wrong in proceeding on the basis that Radhika (P.W.2) had witnessed the incident. As a matter of fact there is no dependable eyewitness in this case. Neither the P.w.2 nor did the P.W.4 can be said to have supported the case of the prosecution. P.W.5 has made clean breast of the fact that he was not present at the time of recovery of the offending weapon. It cannot therefore be said that the case of the prosecution was proved beyond any reasonable doubt. Neither the P.w.2 nor did the P.W.4 can be said to have supported the case of the prosecution. P.W.5 has made clean breast of the fact that he was not present at the time of recovery of the offending weapon. It cannot therefore be said that the case of the prosecution was proved beyond any reasonable doubt. The learned trial Judge was obviously wrong in holding as follows: - Now, even assuming that chemical examination of the blood stained earth could have greatly benefited the prosecution case, yet it cannot be said, that for want of such examination, the eye witness account of a witness to the murder should be brushed aside. Further, the defence has not at all bothered to clarify, what exactly is its version regarding how Muchuk Singh Thakur died, and accordingly it needs no elaboration, that the question of the defence version being true cannot arise at all. If the defence hoped to benefit from the said ruling, it was required to come out witn a clear version of its own, as to how Muchuk Singh died. However, the defence did not do anything of that sort, not even during the examination of the accused under Section 313 Cr.P.C., when he merely stated that he was not guilty. This is the proper juncture to note, that though the accused had initially stated during his examination under Section 313 Cr.P.C., that he would adduce evidence through D.W., yet ultimately he failed to do so, and thus the accused cannot be allowed to take the benefit of his own omission. If he had anything to say about how Muchuk Singh died, he had ample opportunity to do so during his examination under Section 313 Cr.P.C. But as just mentioned, he did nothing of that kind. 9. THE question on offering any explanation by the accused can legitimately arise in a case where any fact is in the special knowledge of the accused which is not the case of the prosecution. There was no obligation on the part of the accused in the facts of the case to explain anything. It is not for the accused to show as to how did the victim die. THE accused has the supreme protection of the presumption of innocence in law. It is not even the case of the prosecution that the victim was last seen in the company of the accused. It is not for the accused to show as to how did the victim die. THE accused has the supreme protection of the presumption of innocence in law. It is not even the case of the prosecution that the victim was last seen in the company of the accused. Therefore, there is no question of any explanation arising out of that theory either. THE case of the prosecution is that the victim was killed by the accused and for that purpose the prosecution has come up with (a) eye witness, (b) recovery of the offending weapon and (c) extra judicial confession. All of them have failed as indicated above. Omission on the part of the accused to adduce any evidence can in no circumstances be a subject matter of any adverse comment as improperly resorted to by the learned Trial Court. Reference in this regard may be made to Sub-Section 1(b) of Section 315 of the Criminal Procedure Code which provides as follows:- (b) His failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. 10. WE are, as such, of the opinion that the conviction cannot be sustained. The judgment under challenge is therefore set aside for the reasons indicated above. The appellant is discharged of the bail bond furnished by him. WE record our deep sense of gratitude to Mr. Kapoor for the pains he undertook to assist the Court. Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action.