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2012 DIGILAW 652 (CAL)

Karmu Pradhan v. State

2012-07-18

JOYMALYA BAGCHI, TAPEN SEN

body2012
Judgment JOYMALYA BAGCHI, J. 1. THIS appeal is directed against the judgment and order dated 7th February, 2012 convicting the appellant for commission of offence punishable under section 304 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2000/-, in default to suffer imprisonment for three months more. 2. THE prosecution case, as alleged against the appellant, is thaton 11.04.2007 at about 9.30 AM one Telesphor Dhanwar, PW-1 Private Mazdoor, resident of Beach Dera, Ganesh Nagar, Diglipur came to Diglipur police station and reported that one Michael Dung Dung was murdered by Karmu Pradhan. Telesphor Dhanwar, PW-1 further reported that on that fateful day under the supervision of contractor Ajit Kumar Nair, PW-1 was engaged in the digging of well at Beach Dera along with victim Micheal Dung Dung, Somra Sandel, (PW-6), John Kujur, Mukut Dung Dung,(PW-10), Chaiya Toppo,(PW- 5), Superian Dhanwar, Sabar Sandel, (PW-3) and Francis Aind, (PW-2); digging of well started about 7.00 AM and continued up to 8.00 AM and all the mazdoors left for breakfast at their respective houses; at about 9.00 am all the mazdoors except Francis Aind and victim Micheal Dung Dung came to the spot for digging well; at that time water starting flowing from the well and women and children of the village including one Teressa Kispota, (PW-4), wife of the victim and his daughter also came to the well for taking water; at about 9.30 AM, the appellant came near the well holding a wooden stick in his hand and attempted to assault the said wife of Michael Dung Dung on the ground that her husband had performed some sort of black magic, that is, "Jaadu Tona" on the appellant's wife and the latter had become ill. On being restrained, the appellant left the spot. Soon thereafter, Francis Aind (PW-2) rushed to the well and informed that the victim had been struck with a wooden stick by the appellant. Immediately PW-1 and the others rushed to the place of occurrence and found that the victim was lying dead in a pool of blood near a peepal tree. 3. ON the basis of the oral report of PW-1, as aforesaid,, PW-7 registered a first information report being Diglipur PS case NO.92 of 2007 dated 11.04.2007 against the appellant under section 302 of the Indian Penal Code. 3. ON the basis of the oral report of PW-1, as aforesaid,, PW-7 registered a first information report being Diglipur PS case NO.92 of 2007 dated 11.04.2007 against the appellant under section 302 of the Indian Penal Code. Pursuant to the registration of the FIR, PW-17 Jagbir Singh (I.O. of the case) along with PW-5 Chaiya Toppo took steps to proceed to the place of occurrence. About such time, PW-17 received information that the appellant had surrendered before the PW-14, B.S.Haldar at Sagar Deep Out Post. Hence, PW-17 went to Sagar deep out Post and took custody of the appellant. Thereafter, PW-17 along with PW-5 and the appellant went to the place of occurrence. At the place of occurrence, in presence of PW-2, Francis Aind, PW-3 Saban Sandel, PW-5 Chaiya Toppo, the appellant made a disclosure statement stating that he had hidden the wooden stick in a bush near his house. Such disclosure statement was reduced in writing by PW-17 and the appellant led the police to recover the offending weapon; PW-17 took the dead body to the hospital where the victim was declared dead and his dead body was handed over to his wife PW-4 after post-mortem; in course of investigation PW-17 seized wearing apparel and blood stained earth from the place of occurrence; photographs of the victim was also taken by PW-15; in the meantime, the appellant confessed his guilt before the learned Judicial Magistrate being PW-8 and his confession was recorded under section 164 of Cr. P.C, 1973; statement of vital witnesses, namely, PW-1, 2, 3 and 4 were also recorded under section 164 of Cr. P.C. by PW-8; finally a charge sheet was submitted by PW-16 J.S. Yadav against the appellant under section 302 of the Indian Penal Code; subsequently, a supplementary charge sheet was also filed. 4. THE case was committed to the Court of Sessions and charge under section 302 of Indian Penal Code was framed against the appellant. 5. IN the course of trial, the prosecution examined seventeen witnesses in the instant case. PW-1 Telesphor Danwar, is the FIR maker and the defacto complainant of the instant case. PW-2 is the eye witness who saw the assault on the victim. He also proved the disclosure statement of the appellant and recovery of the weapon of offence. PW-3, Sabar Sandal, a co-mazdoor corroborated the evidence of PW-1. PW-1 Telesphor Danwar, is the FIR maker and the defacto complainant of the instant case. PW-2 is the eye witness who saw the assault on the victim. He also proved the disclosure statement of the appellant and recovery of the weapon of offence. PW-3, Sabar Sandal, a co-mazdoor corroborated the evidence of PW-1. PW-4 Teressa Kispota, wife of the victim who was threatened by the appellant immediately prior to the assault upon the victim. PW-5 a co-mazdoor accompanied PW-1 at the time of lodging of FIR. She also accompanied the police to the place of occurrence and also deposed about the disclosure statement by the appellant and the seizure of the weapon of the offence. PW-6 Somra Sandel who was also a co-mazdoor was tendered for cross-examination. PW-7 V.R. Pandey registered the FIR in the instant case pursuant to the oral information of PW-1. PW-8, is the Judicial Magistrate who recorded the statement of witnesses namely, PW-1, PW-2,PW-3, and PW-4 under section 164 of the Cr. P.C and also recorded the judicial confession of the appellant on 13.4.2007 under section 164 of the Cr. P.C. PW-9 Tamilarasan proved the seizure of general dairies in the course of investigation. PW-10 Mukut Dung Dung is the son of the victim. He corroborates the evidence of PW-1. PW-11 R.K. Pandey brought the alamats from the office of CFSL. PW-12 K. Ajayan had deposited such alamat at CFSL for examination. PW-13 Dr.Antony conducted post-mortem examination on the victim. PW-14 B.S. Halder is the police officer who was attached to Sagardweep Outpost, before whom, the appellant surrendered. He intimated PW-17 the investigating Officer of the instant case about such surrender of the appellant. PW-14 took photographs of the victim at the place of occurrence. PW-16 J.S. Yadav submitted the charge sheet and supplementary charge sheet in the instant case. PW-17, is the Investigating Officer who arrested the appellant and conducted major portion of investigation in the instant case. 6. IN conclusion of trial, the Trial Judge by the impugned the judgment and order dated 7th February, 2012 convicted the appellant for commission of offence punishable under section 304 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2000/-, in default to suffer imprisonment for three months more. Mr. IN conclusion of trial, the Trial Judge by the impugned the judgment and order dated 7th February, 2012 convicted the appellant for commission of offence punishable under section 304 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2000/-, in default to suffer imprisonment for three months more. Mr. Arul Prasanth, learned counsel for the appellant submits that the evidence of the prosecution witnesses suffered from severe infirmities. Although it is the version of the PW-1 and PW-2 that the place of occurrence was visible from where the place where the well was being dug, none of the witnesses namely, PW-1, PW-3, PW-4, PW-5, PW-6 and PW-10 who were admittedly present at such place where the well was dug deposed about assault on the appellant at the place of occurrence. Mr. Prasanth submitted that the oral evidence of PW-2 with regard to such assault being not corroborated by such witnesses, therefore, ought not to be believed. Mr. Prasanth further submitted that judicial confession of the appellant was recorded without following the mandatory safeguards as the learned judicial magistrate did not verify whether the appellant had been segregated or not prior to according such confession. Hence, he submitted that the judicial confession is liable to held inadmissible and unreliable in law. Mr. Prasanth further submitted that the evidence of PW-13, post- mortem doctor did not rule out the chance that the injury on the victim may be caused by fall and therefore he argued that ocular evidence was not supported by medical evidence. Mr. Prasanth finally argued that the sentence imposed upon the appellant may be reduced in the facts and circumstances of the instant case. 7. MR. S.K. Mandal, appearing for the state submits that the impugned order of conviction and sentence is well reasoned and does not require any interference. He further submits that no further leniency ought to be extended in the matter of sentence imposed upon the appellant. Let us examine the arguments of the parties in the light of the prosecution case as unfolded through its witnesses. A brief sketch of such evidence has already been given in the foregoing paragraphs. 8. THE first issue raised by Mr. Let us examine the arguments of the parties in the light of the prosecution case as unfolded through its witnesses. A brief sketch of such evidence has already been given in the foregoing paragraphs. 8. THE first issue raised by Mr. Prasanth is that the eye-witness version of PW-2 ought not to be believed since such evidence of assault by the appellant on the victim as narrated by PW-2 is not corroborated by other witnesses namely, PW-1, PW-2, PW-4, PW-5, PW-6 and PW-10, who admitted they were within visible distance from the place of occurrence. The failure on the part of the said witnesses to see the incident has, in fact, been explained by PW-1 and PW-2. These witnesses in the course of their evidence stated that although the place of occurrence where the victim was assaulted was visible from the place but the cries of help of PW-2 had been drowned by the running of machine which was being utilized for extracting water. As a result, the attention of the witnesses present near the well were not drawn to the incident of assault on the victim. Furthermore, it appears that due to the commotion generated by water coming out from the well and the assemblage of women and children of village therein to collect the same their attention was distracted and they were unable to notice the incident of assault on the victim who he was sitting with PW-2 under a nearby peepal tree. Such explanation of the prosecution witnesses have been, in fact, elicited during cross-examination and completely demolishes the defence version. Hence, the failure of the prosecution witnesses who were present at the well to corroborate the evidence of PW-2 stand duly explained and the same does not dent the veracity of the prosecution case. 9. THE evidence of PW-2 is with regard to the assault, is most natural, cogent and can be the sole basis of conviction. PW-2 narrates the incident of assault with utmost clarity and his presence at the place of occurrence is most probable and natural in the ordinary course of events. Furthermore, the evidence of PW-2 stands corroborated by his statement under section 164 Cr. P.C before the Judicial Magistrate (PW-8) and is unshaken in cross- examination. PW-2 narrates the incident of assault with utmost clarity and his presence at the place of occurrence is most probable and natural in the ordinary course of events. Furthermore, the evidence of PW-2 stands corroborated by his statement under section 164 Cr. P.C before the Judicial Magistrate (PW-8) and is unshaken in cross- examination. Hence, we are of the opinion that the evidence of PW-2 is wholly trustworthy and has been rightly believed by the Trial Judge to be the basis for conviction of the appellant. Such evidence of PW-2 is further fortified by the disclosure statement of the appellant and resultant recovery of the weapon of offence namely wooden lathi, at the behest of the appellant. Such disclosure statement and also recovery of wooden lathi at the behest of the appellant have been convincingly proved by the prosecution witnesses in the instant case. 10. THE second argument made by Mr. Prasanth that the recording of the judicial confession of the victim by the learned Judicial Magistrate PW-8 was without adhereing to the necessary safeguards and, therefore, inadmissible in law, is also wholly without any merit. A perusal of the order sheet in the instant case would show that the learned judicial magistrate acted prudently and remanded the appellant to judicial custody on 12.04.2007. The learned Magistrate in a fair and just manner gave necessary statutory warning to the appellant on 12.04.2007 itself and, thereafter, remanded him for reflection till the next day. On the next day, i.e. 13.4.2007, the learned magistrate again gave necessary statutory warnings to the appellant and thereafter proceeded to record his confession. The procedure followed by the learned judicial magistrate in the facts of the instant case appears to be completely unblemished and it cannot be said that such judicial confession was recorded contrary to law. The argument that the learned judicial magistrate did not verify whether the appellant was segregated or not, is wholly unfounded inasmuch as the appellant had been directed to be segregated and there is no material adduced by the defence that such direction was not followed. Moreover, on the date of recording confession, the Magistrate again gave the necessary statutory warnings to the appellant to test the voluntariness of the said appellant and to ensure that he was not suffering from any threat, coercion or duress in making such statement. Moreover, on the date of recording confession, the Magistrate again gave the necessary statutory warnings to the appellant to test the voluntariness of the said appellant and to ensure that he was not suffering from any threat, coercion or duress in making such statement. In reply, to such queries, the appellant did not state that he was not segregated and emphatically claimed that he was making such confession out of remorse as a free agent. We are therefore of the view that the judicial confession in the instant case is a voluntary one and the same lends credence and corroboration of ocular version of the prosecution witnesses. 11. THE other submission of Mr. Prasanth that the medical evidence is not in consonance with the ocular evidence is also liable to be rejected. The cross-examination of the PW-13 reveals that the post-mortem doctor denied the defense suggestion that the injuries on the victim can be caused by fall. PW-13 however stated that such injury may be caused by fall from height. However, it is nobody's case that the victim had suffered a fall from a height. The only suggestion given by the defence is that the victim had a drunken brawl with PW-2 and as a result fell down and suffered such injury. It is pertinent to mention here that PW-13 did not find alcohol in the stomach of the victim. Hence, the suggestion given by the defence does not get credence from such medical evidence. 12. ON the other hand, such medical evidence wholly corroborates the prosecution case of the assault by wooden stick as proved by the ocular version of the prosecution witnesses. Hence we are of the view that in the instant case there is no conflict between the ocular version of the prosecution witnesses and the medical evidence of the PW-13. 13. IN view of the aforesaid discussion, we find no reason to interfere with the impugned order of conviction recorded by the learned Trial Judge. With regard to the sentence imposed upon the appellant, we are of the view that no further leniency ought to be extended to the appellant in the facts and circumstances of the instant case. 14. THE impugned order of conviction and sentence is affirmed and the appeal accordingly fails.