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2013 DIGILAW 121 (CAL)

Bikash Das v. STATE OF WEST BENGAL

2013-03-01

ASIM KUMAR RAY, NADIRA PATHERYA

body2013
JUDGMENT Patherya J. This appeal has been filed against the judgment dated 23rd February, 2005. By the said judgment the appellant/convicted person was sentenced to life imprisonment for committing an offence under Section 302 IPC and was sentenced to three years rigorous imprisonment under section 498A IPC. Fines were also imposed and in default further rigorous imprisonment of one month was directed. The case of the prosecution was that the husband Bikash Das had murdered his wife Khuku on 15.12.1993 and the FIR was filed by the victim’s mother on 16.12.1993. The FIR was registered and investigation initiated. On completion of investigation charge-sheet was submitted against the accused person under Sections 498A and 302 IPC. Charges were framed under the sections mentioned above to which the accused persons/appellant pleaded “Not guilty” and sought trial. In course of trial 24 prosecution witnesses were examined and documents exhibited. According to the appellant’s counsel in the FIR the time of occurrence was mentioned as 7 AM but no such time has been specified by P.W. 14. Reliance is placed on the decision reported in (2011) 1 C Cr LR (SC) 54 for the proposition that the statement recorded under Section 164 CrPC is not to be taken as substantive evidence and can be utilized only for corroboration or contradiction purposes. Reliance is also placed on the decision reported in (2010) 3 C Cr LR (SC) 698 regarding the evidentiary value of a hostile witness and that such evidence is to be subjected to close scrutiny and only that which is consistent with the case of the prosecution or defence can be relied upon. As P.W. 14, the only eye witness had turned hostile, therefore, her evidence need not be considered. The formation of questions put under statements recorded under Section 313 CrPC was not proper and as held in (2008) 8 SCC (Criminal) 371 the same ought not to be relied on. In fact no incriminating evidence was put under Section 313 CrPC. At the time of occurrence P.W. 14 was 7 to 8 years old and the statements made by her was not voluntary. The blood found on the Lungi and the knife (Exhibit-1) was not matched with that of the victim. Therefore that an offence had been committed by the appellant under Section 302 IPC could not be established and the order of conviction accordingly be set aside. The blood found on the Lungi and the knife (Exhibit-1) was not matched with that of the victim. Therefore that an offence had been committed by the appellant under Section 302 IPC could not be established and the order of conviction accordingly be set aside. In opposing the said appeal it has been contended by counsel appearing for the State respondent that all witnesses have corroborated the statements made by P.W. 14 under Section 164 CrPC and although P.W. 14 has been declared hostile the evidence of all other witnesses be accepted. The blood stained Lungi (Exhibit-A) has been identified as that of Bikash by P.W. 5. That there was cruelty meted out to the victim under Section 498A IPC will be evident from the deposition of P.W. 1 and P.W. 2 who have admitted that a Saalish was held wherein the appellant had given an assurance that the victim would no longer be ill-treated and relying thereon the victim had been sent to her matrimonial home. In the post mortem report it has been mentioned that the injury is homicidal, therefore, a presumption is raised under Section 114 of the Indian Evidence Act. The Medical Officer being P.W. 22 has also deposed that the injury was homicidal. His evidence has been accepted and he was not subjected to cross-examination. Therefore the judgment dated 23rd February, 2005 calls for no interference so also the sentence imposed on the appellant. Having considered the submissions of the parties and on reading of the FIR filed so also on consideration of the evidence of the prosecution witnesses what emerges is that the death of the victim took place on 15.12.1993. Today the reason for such death has lost significance, as what is relevant is whether such death was suicidal, accidental or homicidal. From the post mortem report the nature of the injury according to P.W. 22 (Medical Officer) is homicidal and in his evidence also he has supported the post mortem report and no question was put to him in cross-examination to contradict the same. In fact the only eye witness was P.W. 14 and in her statement under Section 164 CrPC she stated before the Magistrate that when she went to the appellant’s grocery shop to buy potatoes in the morning of 15.12.1993 she heard a shout for help. In fact the only eye witness was P.W. 14 and in her statement under Section 164 CrPC she stated before the Magistrate that when she went to the appellant’s grocery shop to buy potatoes in the morning of 15.12.1993 she heard a shout for help. The shout was in the voice of the victim and on rushing to the spot she saw the incident. Unfortunately P.W. 14 was declared as a hostile witness and therefore, her statement recorded under Section 164 CrPC is not substantive evidence but can only be utilized to corroborate or contradict a witness vis-a-vis statement made in Court as held in the decision reported in (2011) 1 C Cr LR (SC) 54. There are other prosecution witnesses who may be referred to as post occurrence witness and their respective evidence in respect of what they found in the first floor room of the appellant cannot be ignored. P.W. 8 had rushed to the house of the appellant and he has deposed that he found the victim lying in a pool of blood. He had also found a blood stained Lungi, Chadar and knife being Exhibit-1 which materials were identified by him. P.W. 5 is a seizure list witness who has categorically stated that the seized materials Even in cross-examination he has asserted that the seized materials were found in the house of Bikash viz. knife, chadar and lungi were brought down from the first floor north facing room of Banomali Das by the police. P.W. 5 also identified the Lungi as one worn by the appellant. From a reading of Exhibit-8 so also from the serological report which was a part of it, it is clear that the blood on the lungi, knife and chadar (Exhibit-A) was human blood. P.W. 4 the mother of the victim has also deposed that when she went to the room of the appellant she found the victim lying in a pool of blood and beside her there was a Lungi, Chadar and knife soaked in blood. P.W. 1 has also deposed that a blood stained Lungi was found in the place of occurrence i.e. the room on the first floor of the house of Banomali Das. Therefore P.W. 1, P.W. 4 and P.W. 5 have all corroborated the evidence of P.W. 24 (Investigating Officer) with regard to seizure of the blood stained articles. P.W. 1 has also deposed that a blood stained Lungi was found in the place of occurrence i.e. the room on the first floor of the house of Banomali Das. Therefore P.W. 1, P.W. 4 and P.W. 5 have all corroborated the evidence of P.W. 24 (Investigating Officer) with regard to seizure of the blood stained articles. P.W. 15 a post occurrence witness has also deposed that there are 2 rooms in the 1st floor of the home of Banomali and he found a blood stained knife, blood stained Lungi and Chadar lying in the first floor room. P.W. 24 has also deposed about seizure of blood stained knife and blood stained Lungi. PW 22 has also stated in his evidence that the sickle (Mat. Ext. I) “can cause the injury inflicted on” the victim. Therefore, the evidence of the above-mentioned prosecution witness cannot be ignored as each one was a witness to seizure of the blood stained Lungi and the blood stained knife which according to each of the prosecution witnesses were found by them on the first floor room of Banomali Das’s house. As the prosecution proved its case, the onus shifted to the appellant to dispel it under Section 106 of the Evidence Act, as the said incident occurred in a room belonging to him and the occurrence of the incident was within his special knowledge. In the decision reported in (2006) 10 SCC 681 it has been succinctly stated as follows: “Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” This decision has been followed in 2008 Cr LJ 1039 (State of Rajasthan vs Jagguram). As held in (1992) 3 SCC 106 (Ganeshlal vs State of Maharashtra) the death occurred when the victim was in the custody of the appellant, therefore the appellant was under an obligation to give a plausible explanation in the Section 313 statement regarding the cause of the victim’s death. No such attempt was made except for denying the prosecution case. These facts are inconsistent totally with the innocence but consistent with the hypothesis i.e. the appellant is the accused, and the only accused, in the commission of the gruesome murder of the victim wife. From a reading of the statements under Section 313 CrPC the appellant has failed to discharge the said onus. Although much was sought to be made out by counsel for the appellant with regard to non-mentioning of time of occurrence in the Section164 CrPC statement but nothing will turn on it as the word used by P.W. 14 is ‘Shokaal’ which means “morning” and the same will be anytime between 6 AM to 9 AM. Section 313 CrPC contemplates questions of a general nature to be put to the accused. From a reading of the questions formulated under Section 313 CrPC it cannot be said that the questions were so formed so as to prejudice the appellant. In fact the said questions were general in nature and as per the requirements of law. On examination of the topography of the house only one entrance was found to the two storied mud house. The said entrance was through the shop of the appellant and it is only through the said entrance that access to the first floor was possible. Therefore for the appellant to dispel the prosecution’s case, he will have to prove his innocence which he has failed to do. The said entrance was through the shop of the appellant and it is only through the said entrance that access to the first floor was possible. Therefore for the appellant to dispel the prosecution’s case, he will have to prove his innocence which he has failed to do. Accordingly, the order of conviction and sentence calls for no interference and the appeal is dismissed. I agree.