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2013 DIGILAW 370 (CAL)

Bipak Munda v. STATE OF WEST BENGAL

2013-06-27

KANCHAN CHAKRABORTY, NISHITA MHATRE

body2013
Judgment :- Kanchan Chakraborty, J. 1. This Criminal Appeal is directed against the judgment and order dated 29.06.2007 passed by the learned Additional District and Session Judge, 2nd Fast Track Court, Jalpaiguri in Sessions case No. 136 of 2004 (S.T No. 02 of 2006), thereby convicting the appellant under section 302 of the Indian Penal Code and sentencing him to suffer Imprisonment for life and to pay a fine of Rs. 5000/-, in default, to suffer R.I. for 6 months. 2. On 1.5.2004, at about 14.10 hrs, Maniram Oraon lodged one F.I.R. with Mal Police station alleging therein that on that day at about 10 a.m., Bipak Munda (hereinafter mentioned as the appellant) went to river Ghees with his two sons Chanchal, aged about 6 years and Kanchan, aged about 5 years, respectively for taking bath. Suraj Muni Munda (P.W. 5), Mamta Oraon (P.W. 3) and others saw the appellant and his two sons go to river Ghees. Sometime thereafter, the appellant came back home alone and on questioning, he disclosed that he killed his sons by forcible drowning. The villagers confined him in the house and enquired into the fact. They found the dead bodies of Chanchal and Kanchan lying on the embankment of river Ghees. The F.I.R. was registered as Mal Police station case no. 83/2004 dated 1.5.2004 at 02.10 pm The police officials of Mal police station visited the place of occurrence, held inquest of the dead bodies, sent the dead bodies for post-mortem, seized the wearing apparels of the deceased, arrested the appellant on the next date and on the conclusion of investigation, filed charge-sheet against the appellant under section 302 of IPC. 3. The appellant pleaded not guilty to the charge and as a consequence, the trial commenced. The learned Trial Court, upon consideration of the oral and documentary evidence came to a conclusion that the prosecution brought home the charge against the appellant and passed the judgment which is impugned in this appeal. 4. Mr. Sabyasachi Banerjee, learned Counsel on behalf of the appellant contended that there is no direct evidence of commission of the alleged offence by the appellant and that being so, the case is entirely based on circumstantial evidence. When a case of like nature is based on circumstantial evidence, the learned trial Court ought to have appreciated the evidence more carefully and with great caution. When a case of like nature is based on circumstantial evidence, the learned trial Court ought to have appreciated the evidence more carefully and with great caution. He attacked the judgment on manifold grounds. The first point raised by Mr. Banerjee is that there are discrepancies on material facts in the F.I.R. itself. Mr. Banerjee has drawn our attention to the time of lodging of the F.I.R. and the oral testimony of Moniram Oraon (P.W. 11). He submitted that according to the P.W. 11, the F.I.R. was written at about 2/2.30 pm in a shop room of his village. Mal police was situated at about 20 to 22 km. away from that place. Mr. Banerjee contended that had the F.I.R. been written at about 2/2.30 p.m. then how it could have been registered with Mal police station at 2.10 p.m.? He contended further that the inquest reports of the dead bodies of Chanchal and Kanchan (exhibit 1/2 and 2/2) indicate that inquest was done at 14.15 hours. The post-mortem on both the bodies was done on the next date at 2.30 pm and 3.05 pm. Therefore, according to Mr. Banerjee, there is doubt as to lodging of the F.I.R. at 2.10 hours. 5. We do not find much substance in that submission of Mr. Banerjee. The F.I.R. shows clearly that the appellant along with his two sons went to the river Ghees at about 10/10.30 am. He came back alone but nowhere the time of his returning from the river has been mentioned. The dead bodies of Chanchal and Kanchan were recovered after the appellant returned back home and disclosed that he killed both the sons by forceful drowning. After recovery of the dead bodies on the embankment of the river, the F.I.R. was written at about 2/2.30 p.m. and was handed over to the police officer in the office of tea garden. Thereafter, it was registered as a case at 2.10 p.m. We have gone through the evidence of P.W. 11 Moniram and found that he did not state the exact time the F.I.R. was written. He stated that at about 2/2.30 p.m. it was written. It might be that it was written at 02.00 p.m. or a few minutes prior to that. It was handed over to the police official who came to the tea garden. He stated that at about 2/2.30 p.m. it was written. It might be that it was written at 02.00 p.m. or a few minutes prior to that. It was handed over to the police official who came to the tea garden. There was no difficulty for registering it at 02.10 p.m. Soon thereafter, at 2.15 pm inquest was done. A thorough reading of the evidence of the P.W. 11 and I.O. of the case makes it abundantly clear that distance of the police station from the place where the F.I.R. was written, is of no consequence because police official from the Mal police station was present when the F.I.R. written either at 2 p.m. or prior to that. For the purpose of lodging the F.I.R. the P.W. 11 had not gone to the police station covering a distance 20/22 Km. So, the discrepancies in respect of time of filing of the F.I.R. as pointed out by Mr. Banerjee does not appear to be fatal to the prosecution. This being a very trivial in nature, we do not like to put any importance on this discrepancy. 6. Mr. Banerjee contended further that according to the F.I.R., Smt. Suraj Muni Munda, (P.W. 5),Mamata Oraon (P.W. 3) and few others had seen the appellant to go to river Ghees with his two sons and on their questioning, the appellant replied that he was taking his sons to the river for the purpose of bathing. According to the F.I.R., Mr. Banerjee pointed out the appellant was asked by the P.W. 5 and P.W. 3 about his sons when he was coming back from the river alone. Mr. Banerjee has taken us to the evidence of P.W. 3 and P.W. 5 and contended that none of them supported that fact averred in the F.I.R. P.W. 3 Smt. Mamta Oraon was declared hostile and stated that she did not know how the sons of the appellant died. She declined also that she made any statement to the I.O. to the effect that the appellant disclosed to her that he killed his sons by forcible drowning in the river. P.W. 5 Smt. Suraj Muni Munda, however, found the appellant going toward river Ghees with his sons. At that time, she was on the other side of the river Ghees. She found the appellant was taking his sons beyond the embankment. P.W. 5 Smt. Suraj Muni Munda, however, found the appellant going toward river Ghees with his sons. At that time, she was on the other side of the river Ghees. She found the appellant was taking his sons beyond the embankment. She came back home and, as such, she was not in a position to say how the sons of the appellant died. However, she found the dead bodies of the sons of the appellant on the bank of river Ghees when the police came there. In her cross-examination she denied the suggestion put to her that she did not find the appellant taking his sons towards the embankment of river Ghees. 7. Mr. Sanyal, Ld. Public Prosecutor contended that the trial Court made no mistake in coming to the conclusion that the appellant committed the offence. He contended further that in all probabilities, no prudent man would doubt, under the facts and circumstances of the case, that death of Chanchal and Kanchan was caused by anybody but the appellant. The deceased were last seen together with the appellant who made extra-judicial confession admitting his guilt. The evidence recorded by the trial Court supported the prosecution case. Therefore, he contended, there is no scope for this Court to give the appellant any benefit of doubt. 8. It is true that out of two witnesses named in the F.I.R. one has been declared hostile and has not supported the prosecution case. But, this fact alone is not enough to discard and disbelieve the statement of another one i.e. P.W. 5 who had seen the appellant taking his sons beyond the embankment of the river Ghees and afterwards found the dead bodies of the sons of the appellant on the bank of the river. 9. From the evidence of P.W. 5 it appears clearly that the appellant went to river Ghees on 1.5.2004 at about 10/10.30 am with his two minor sons Chanchal and Kanchan. There is no denial to the fact that the dead bodies of Chanchal and Kanchan were found lying on the embankment of the river Ghees soon after the appellant returned home alone. The statement of the P.W. 5 that she found the appellant taking his sons beyond the embankment remained unchallenged. It is to be noted here that another lady smt. The statement of the P.W. 5 that she found the appellant taking his sons beyond the embankment remained unchallenged. It is to be noted here that another lady smt. Bisoti Oraon (P.W. 4) had also seen the appellant and his sons to go to the river. She had seen him also to take them beyond the bank of the river. One Kishore (not examined) was sent to ascertain as to what happened. Kishore Found dead bodies of Chanchal and Kanchan on the bank. The P.W. 4 went there and found the dead bodies. In her cross-examination she denied the suggestion put to her by the defence that she did see the appellant to take his sons to the river. Therefore, non-supporting the prosecution case by the P.W. 3 does not appear to be fatal to the prosecution. 10. Mr. Banerjee contended that the statement in the F.I.R. to the effect that the appellant disclosed in presence of others that he forcefully drown his sons has not also been established. We have already found that there was no eye witness of the incident. According to the F.I.R., Diren Munda asked the whereabouts of the sons when the appellant returned home. He told, according to the F.I.R., to Diren Munda that he killed them himself. It has further been stated in the F.I.R. that when the villagers found the dead bodies by the side of the river, they asked the appellant about the incident and he told them that he killed his sons. Diren Munda has been examined as P.W. 6. He stated that the appellant did not tell him anything about the reason of death of his two sons. He was not cross-examined by the defense. We have carefully scrutinized the oral testimony of the P.W. 6 Diren Munda and found that no where he denied the fact that the appellant stated him that he killed his sons. He said that “reason of death was not disclosed by the appellant”. The defense did not take any risk to cross-examine the P.W. 6 on this point. The statement of the P.W. 6, “accused did not tell me anything about the reason of death of his two sons” does not necessarily mean that the accused did not disclose that he killed his sons. The defense did not take any risk to cross-examine the P.W. 6 on this point. The statement of the P.W. 6, “accused did not tell me anything about the reason of death of his two sons” does not necessarily mean that the accused did not disclose that he killed his sons. To be stated preciously, the F.I.R. also does not disclose that Diren Munda was told by the appellant about the reason of death of his sons. He simply stated he killed his sons. P.W. 6 was not an eye witness and naturally, he was not in a position to say how the appellant killed his sons and what would be the exact reason of death of his sons. The F.I.R. discloses clearly that other villagers also heard the appellant saying that he killed his sons. The P.W. 11stated that hearing the news he visited the spot and asked the appellant, who was confined by the villagers, about his sons and that he disclosed that he had forcibly drawn both of his sons in the river water and killed them. Mr. Banrjee has drawn our attention of the statement of the P.W. 11 in his cross-examination, “I cannot remember if I mentioned in the complaint that on hearing the incident I visited the place and made enquiry from the accused about his sons”. According to Mr. Banerjee, this statement of P.W. 11 is contradictory to his statement in examination-in-chief. We do not agree to such a submission of Mr. Banerjee. The P.W. 11 Moniram failed to remember whether or not he mentioned that particular fact in the F.I.R. He has not stated in his cross-examination that he made no such enquiry and that the appellant did not disclose that he had drowned both of his sons in the river water and killed them. In true sense, there is no contradiction in the statement of P.W. 11 in this respect. 11. So, it is found that appellant who went to the river Ghees with his sons was seen by the P.W. 4 and P.W. 5. He returned back home alone and his sons’ dead bodies were found lying by the river side. He made statement that he drowned his sons in the river water and killed them. 11. So, it is found that appellant who went to the river Ghees with his sons was seen by the P.W. 4 and P.W. 5. He returned back home alone and his sons’ dead bodies were found lying by the river side. He made statement that he drowned his sons in the river water and killed them. These circumstances together completes the chain which unerringly leads to the only hypothesis that none but the appellant killed his sons by forceful drowning in the river Ghees and laid their bodies on the embankment and thereafter, came back home alone. 12. The learned Trial Court recorded conviction of the appellant basing on “last seen” together with the deceased and extra judicial confession of the appellant. According to the Mr. Banerjee, none of these two circumstances has been established by sufficient and satisfactory evidence and therefore, the appellant should have been given benefit of doubt. He, in support of his submission cited the decisions of Apex Court in 1) Madho Singh Vs. State of Rajasthan reported in (2010) 15 SCC 588, 2) Dashrath @ Champa & Ors. Vs. State of Madhya Pradesh reported in (2008) 3 SCC (Cri) 254, 3) Sahadevan & Anr. Vs. State of Tamil Nadu reported in (2012) 3 SCC (Cri) 146. 13. There is no dispute as to the principle of law propounded by the Apex Court in the decisions referred to above to the effect that extra judicial confession being a weak piece of evidence, Court must ensure that same inspires confidence and is corroborated by other prosecution evidence and that “last seen together with deceased should have a proximity with the incident and should be consonance with the time of death. 14. In the instant case, we reiterate, the appellant was seen by the P.W. 4 and P.W. 5 going beyond the embankment of the river Ghees with his two sons on 1.5.2004 while they were on the other side of the river. There is no denial to the fact that the appellant returned back home alone and the dead bodies of his sons were found by the side of the river soon after his return. There is no denial to the fact that the appellant returned back home alone and the dead bodies of his sons were found by the side of the river soon after his return. Inquest of the dead bodies was done at 2.15 P.M. i.e. immediately after lodging of the F.I.R. Obviously, the dead bodies were detected by the villagers prior to lodging of the F.I.R. There is no evidence, whatsoever, to the effect that within what span of time the appellant came back home. The sons of the appellant were last seen with the appellant and none else before their death. The time gap was not long also. The P.W. 11 having no enmity with the appellant stated categorically that the appellant disclosed to him that he killed his sons in river water by way of drowning. These two circumstances are well fitted with the other circumstances and obviously have formed a chain of circumstances which leads to the conclusion that the appellant himself had killed his sons by forceful drowning in the river water, laid their bodies on the bank of the river and came back home alone. This Court is not oblivious of the fact that the water level of the river was only knee deep. There was no possibility, in such a case, of accidental drowning. There is also no reason for this Court to discard the evidence of P.W. 4 and P.W. 5 and P.W. 11. Their evidence supported the prosecution case especially the fact that the deceased were “last seen” together with the appellant and that the appellant made statement before the P.W. 11 and others that he killed his sons by way of drowning in the river water. 15. The appellant was the man having best knowledge to say as to what happen to his sons because he had taken them to river Ghees for the purpose of taking bath but returned alone. Ordinarily the fact that the accused and deceased were last found together and failure the accused to explain as to what happened to the deceased, is a circumstance strongly suggest guilt of the accused in a case of murder. In course of his examination under section 313 Cr.P.C., the appellant did not explain as to how the sons died although they were with him. In course of his examination under section 313 Cr.P.C., the appellant did not explain as to how the sons died although they were with him. He, in course of trial, did not put any question to any witness suggesting that the death of his sons was caused by any other means or reason or that it was accidental. This conduct on the part of the appellant obviously strengthened the prosecution case. 16. Mr. Banrjee has drawn our attention to the discrepancies in respect of the injuries found at the time of inquest and at the time of post-mortem. He contended that those discrepancies in the inquest reports and post mortem reports are of serious in nature and the trial Court ought to have given importance on the same. 17. The inquest report of the body of deceased Chanchal Munda has been marked as exhibit 2/2. It says – “The body of the deceased Chanchal Munda was lying in dorsal position. The hands were found keeping parallal and half-felded. The mouth was open and the teeth are coming out, the tongue also came out from the mouth, eyes are found closed. The hair of the head was black and small. The complexion of the body was blackish. The black spot of pressing was found on a portion of the belly. There was found some substance of vomit near the mouth of the body where some pieces of rice were found. The deceased was wearing with sky-blue coloured half-pant. After turning round and round of the body there was found some small ulcer on the back and waist and found there some spot of blood.” The report shows that a black spot of pressing was found on a portion of belly of deceased Chanchal at the time of inquest. Post-mortem on the dead body of Chanchal was done on the next date at 2.30 P.M. and the following marks of injury were detected. – “ a) a blackish spot over “ (3.2’ ) umbilical area is seen which may be due to some external force applied from outside. B) two blackish areas ill-defined on either sides of lower part of neck at the junction of neck and clavicle are noted which may be due to external force applied to cause forceful drowning. 18. – “ a) a blackish spot over “ (3.2’ ) umbilical area is seen which may be due to some external force applied from outside. B) two blackish areas ill-defined on either sides of lower part of neck at the junction of neck and clavicle are noted which may be due to external force applied to cause forceful drowning. 18. Comparing the inquest report and post-mortem report of Chanchal we find that black spot over umbilical area was detected by the inquest officer as well as the Doctor. In addition to that particular spot, the Doctor who conducted the post-mortem found two blackish mark ill-defined on either sides of lower part of neck at the junction of neck and clavicle. That particular spot was not or could not be detected by the Inquest Officer. 19. The inquest report of the deceased Kanchan says:-“The body of Kanchan Munda was found lying in dorsal position and the head was on the North and the legs were on the South. Left hand was found folded on the side of the head and the right hand was on the North with slightly felded. The mouth and eyes were closed. The spot of coming out blood was found from the mouth and a spot of coming out the nasal mucus from the nose was also found. The hair was black and small. The complexion of the body was blackish. The deceased were wearing with blue trouser. No spot of injury was found after observing carefully turning round and round the body. The belly was found swelling and a black spot of pressing was found on the upper portion of the belly.” The post mortem report of Kanchan Munda shows that the Doctor detected “a blackish mark ( 2’/2’) above umbilical area. He opined also that it might be due to blunt trauma while struggling from drowning.” 20. Comparing the inquest report and post mortem report of deceased Kanchan we find that the inquest officer did not find the blackish mark above umbilical area of Kanchan which, however, was detected by the Doctor at the time of post-mortem. 21. Mr. Banerjee learned Counsel for the appellant put much stress on the discrepancies in respect of marks of injuries detected on the body of the deceased persons by the inquest officer and the post-mortem Doctor. 21. Mr. Banerjee learned Counsel for the appellant put much stress on the discrepancies in respect of marks of injuries detected on the body of the deceased persons by the inquest officer and the post-mortem Doctor. It is to be noted that the post-mortem was done about 24 hours after the inquest. The inquest officer was not an expert in medical science. Therefore, we put much importance on the post mortem report than the inquest report as far as detection of injuries of like nature are concerned. It was not a cut injury or a gunshot injury or a punctured wound which could be found by any person. It might be that the blackish mark on the neck of deceased Chanchal and blackish mark over the umbilical area of deceased Kanchan could not be detected by the inquest officer immediately after the commission of offence as those werenot prominent at that time. Therefore, we accept the Post mortem report and the opinion of the Doctor given therein. 22. Mr. Banerjee finally contended that the charge was not framed properly because the trial court did not mention as to how the death of Chanchal and Kanchan was caused by the appellant. We find no force in his contention. Section 464 of the Code of Criminal Procedure says that any omission to frame or error of framing charges itself is not a ground which vitiates a trial/conviction. Over all consideration, in such a case, would be to see whether the accused was prejudiced by such omission to frame or error in framing of the charges. If the accused is not prejudiced by any such error, he cannot take a defense that because of wrong framing of charges he failed to explain the inculpatory part of evidence adduced by the prosecution and thereby is highly prejudiced. In the instant case, the appellant was given full opportunity to cross-examine the witnesses. He heard what the witnesses deposed in Court. He was examined under section 313 of the Code of Criminal Procedure. He did not answer to or explain the inculpatory circumstances recorded by the trial Court. He simply stated that he was innocent. In the instant case, the appellant was given full opportunity to cross-examine the witnesses. He heard what the witnesses deposed in Court. He was examined under section 313 of the Code of Criminal Procedure. He did not answer to or explain the inculpatory circumstances recorded by the trial Court. He simply stated that he was innocent. W hen the appellant had contested the trial, got full opportunity to cross-examine the witnesses and failed to explain the circumstances against him, he cannot be said to have been prejudiced simply because the trial Court failed to mention the manner he killed his sons. Therefore, we do not accept submission of Mr. Banerjee that because of error in framing of charges, the appellant was highly prejudiced and, as such, the order of conviction should be set aside and a re-trial be directed. 23. On careful scrutiny of the evidence, we find the following circumstances have been established by the prosecution :a) that on 1.5.2004 at 10/10.30 a.m., the appellant along with his two minor sons Chanchal and Kanchan went to river Ghees; b) that the appellant alone returned back home sometimes thereafter; c) that the dead bodies of Chanchal and Kanchan were detected immediately thereafter on the bank of the river; d) that the appellant disclosed that he killed his sons by forceful drowning in the river; e) that the post-mortem reports of the deceased show that there were blackish marks on the body of the deceased person indicating that their bodies were pressed under the water; f) that the deceased were last seen with the appellant and there was proximity between return of appellant at home and recovery of dead bodies; g) that the appellant failed to explain throughout the trial as to what happen to his sons after they went to the river for bathing with the appellant; 24. The above circumstances if taken together have obviously formed a chain of circumstances which, in all probabilities, leads to the only conclusion that the appellant caused death of his minor sons by forceful drowning on the river on the fateful date. We find that the learned trial court considered all the circumstances together with the conduct of the appellant and came to a right conclusion that the appellant committed the offence charged with. 25. In view of discussion above, we find no reason to interfere into the judgment impugned. We find that the learned trial court considered all the circumstances together with the conduct of the appellant and came to a right conclusion that the appellant committed the offence charged with. 25. In view of discussion above, we find no reason to interfere into the judgment impugned. Accordingly, the appeal fails. The judgment under challenge is affirmed. Appeal stands disposed of. 26. Since the appellant is on bail, his bail bond stands cancelled. He is directed to surrender before the Court below within 7 days. 27. Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities. I agree.