Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 125 (CAL)

Amit Dorjee v. State of West Bengal

2015-02-16

ASHIM KUMAR ROY, ISHAN CHANDRA DAS

body2015
Judgment :- Ashim Kumar Roy, J. On February 18, 2005 in the morning at about 8.25 a.m., PW/1, Lambu Biswa lodged an FIR with the Jaigaon Police Station, Jalpaiguri against the appellant Amit Dorjee and one Monikumar Biswa, still absconding, for killing of his nephew Prem Biswa. The allegation made therein was to the effect that on the previous night, around 11 p.m., when the victim Prem Biswa was sleeping, the aforesaid two miscreants, who were residing in the same locality, came to his house and started calling the victim. At that time the daughter of the informant Munna Biswa, PW/10, who was residing in the same house, opened the door and informed them that victim Prem was sleeping. Then they asked for drinking water. It was the further case of the informant, as soon as, PW/10 went inside the house to bring water, they rushed into the bedroom of Prem and dragged him out to the courtyard and started assaulting him with sharp-cutting weapon. Immediately, the PW/10 raised alarm for help when the villagers rushed to the spot and removed the victim to the hospital where he was declared dead. During investigation, the police arrested the appellant Amit Dorjee and submitted charge sheet against him alleging that he committed the offence punishable under sections 302/34 IPC showing the other miscreants Monikumar, an absconder. Subsequently, the case against Monikumar was filed and Amit Dorjee, appellant before us, was placed for trial before the learned Additional District and Sessions Judge, Fast Track 1st Court, Alipurduar to answer the charge under sections 302/34 IPC. During trial the prosecution examined fifteen (15) witnesses altogether to prove the charge against the appellant and relied on its key witness PW 10, Munna Biswa, the sole eye-witness to the occurrence. The trial being ended in conviction of the appellant for the offence punishable under sections 302/34 IPC and he being sentenced to suffer imprisonment for life and to pay fine with default clause, this statutory appeal has been brought before us challenging the said order of conviction and sentence. The learned Advocate, appearing on behalf of the appellant, vehemently contended that this is a case based on evidence of sole eyewitness PW/10 and having regard to the fact that her evidence suffers from various infirmities, the trial court was not justified to convict him and to pass the sentence of life imprisonment and fine. The learned Advocate, appearing on behalf of the appellant, vehemently contended that this is a case based on evidence of sole eyewitness PW/10 and having regard to the fact that her evidence suffers from various infirmities, the trial court was not justified to convict him and to pass the sentence of life imprisonment and fine. In this regard, at the very outset, he contended that admittedly alleged incident took place at night and although PW 10, Munna Biswa, the sole eye-witness to the occurrence, claimed that at that time, one kupi (oil lamp) was burning inside their house, no kupi (oil lamp) was seized by the police. He then added, according to the PW/10, on being asked by the miscreants as she went inside to bring drinking water for them, they went inside the bedroom of the victim and dragged him out to the courtyard, but no glass was seized, in which water was brought. He further submitted that even if her evidence is accepted, it cannot be ignored, according to her, the accused persons brought out the victim, Prem Biswa, to the courtyard and assaulted him there, but no evidence is forthcoming as to how PW/10 was able to see the incident when there was no source of illumination. He contended that PW/10 in her evidence nowhere disclosed, who gave the fatal blow on the deceased and thus fixing the appellant for committing murder of Prem Biswa, cannot be sustained. In this regard, he invited the attention of this court to the evidence of the PM doctor and pointed out that only one single injury on the head was found and there was no other injury. He further submitted that in the FIR there is also no reference, out of the two miscreants, by whom the victim was actually assaulted. He vehemently urged that in the space provided for noting the history of assault in the inquest report, the appellant has not been named as the assailant. He strenuously urged that this court must disbelieve the prosecution case as it rests on the evidence of highly interested witness, who happened to be the relation of the victim. He further submitted that she is a tutored witness and she admitted in her evidence on being tutored by the police she made statements to the learned Magistrate and no independent witness from the locality was examined. He further submitted that she is a tutored witness and she admitted in her evidence on being tutored by the police she made statements to the learned Magistrate and no independent witness from the locality was examined. He further submitted that the learned trial court most illegally and erroneously relied on recovery of the offending weapons under section 27 of the Evidence Act, at the behest of the appellant, inasmuch as none of the seizure witness has supported the factum of seizure of the said offending weapon at the instance of the appellant. He, therefore, prayed that the order of conviction ought to be set aside. On the other-hand, the learned Public Prosecutor resisted this appeal and contended, it might be that the case of the prosecution is based on the evidence of sole eye-witness to the occurrence, PW 10, but the defence during her lengthy cross-examination has not been able to highlight anything to discredit her. He further submitted that non-seizure of the lamp and glass are lapses on the part of the Investigating Agency and it is well settled such lapse cannot be a ground for acquittal of an accused against whom there are other credible evidence. Heard the learned Advocates appearing on behalf of the parties. Considered their respective submissions. Perused the depositions of the witnesses. Before adverting to the rival submissions of the parties, it be noted that the prosecution case that victim Prem Biswa suffered a homicidal death due to the ante-mortem injuries found in his person has not been disputed from the side of the defence. Admittedly, the entire case against the appellant is based on the evidence of PW/10, Munna Biswa, sole eye-witness to the occurrence and she is a cousin of the deceased. However, merely because she was related to the deceased there is no reason to discard her evidence unless it is found that she is not reliable and trustworthy. Although a plea was taken from the side of the defence that the PW/10 was an interested witness but no materials was placed either before the trial court or here about her interestedness. It is not a rule of universal application that the testimony of a relative of the victim, which is otherwise creditworthy cannot be relied upon unless corroborated by public witness. It is not a rule of universal application that the testimony of a relative of the victim, which is otherwise creditworthy cannot be relied upon unless corroborated by public witness. Furthermore, term ‘interested’ witness postulates that the persons concerned has some direct or indirect interest in ensuring the accused is somehow or other convicted either because he/she had some animus with the accused or for some other oblique motive. In this regard reliance may be placed in the case of Chowdhari Ramji Bhai Narasanghbhai vs. State of Gujarat reported in (2004) 1 SCC 184 ; Ashok Kumar Chaudhary vs. State of Bihar reported in 2008 Cri LJ 3030. Furthermore, the PW/10 being a close relation of the victim has no reason to screen the real offender and to implicate the appellant falsely for killing her brother. Now, coming to the question whether a conviction can be based on the evidence of a sole eye-witness, it goes without saying that it is the quality and not the quantity of evidence that counts. The only things that are required to be considered in a case where the prosecution case is based on sole witness, is to closely scrutinize the evidence of such witness and then to find out whether by that conclusion of guilt of the accused can be reached without any shadow of doubt. The most vital aspect of this case is the identification of the appellant as one of the assailants because admittedly the incident took place at the dark night and only a kupi/lamfoo (oil lamp) was burning inside the house. However, the Investigating Officer of the case has not seized the same and undoubtedly, this is a serious lapse on the part of the Investigating Officer. But as the law stands for such lapse of the Investigation Officer, the prosecution case cannot be disbelieved, unless there is no other acceptable evidence. Now, therefore, question arises, even assuming there was no light at the place of occurrence, whether it was possible for the PW/10 to identify the appellant. According to the unchallenged evidence of PW/10, the appellant was her neighbour and known to her from previously. It is also her evidence which prosecution could not have been able to dislodge, even during her lengthy cross examination that at the time of incident, the victim Prem Biswa, his two sons and the PW/10 were sleeping at their house. According to the unchallenged evidence of PW/10, the appellant was her neighbour and known to her from previously. It is also her evidence which prosecution could not have been able to dislodge, even during her lengthy cross examination that at the time of incident, the victim Prem Biswa, his two sons and the PW/10 were sleeping at their house. At that time the appellant came there and asked for drinking water from her and after consuming water, he with others suddenly entered inside the room, where the victim was sleeping, when victim shouted at him asking why he came at night and thereafter, the victim was dragged out and was assaulted and at the hospital, he was declared dead. Having regard to the aforesaid state of evidence that the appellant was not a stranger to the PW/10 and soon before the victim was dragged from his bedroom and was assaulted, the appellant and the PW/10 were in close proximity and had conversation on face to face, even there was no light, the possibilities of identification of the appellant as the assailants by the PW/10 cannot be ruled out. Furthermore, as the PW/10 was familiar with the appellant and when had conversation with him, may be for a while, the appellant can very well be recognized by his voice by the witness. We are of the opinion on the above background, the PW/10 can very well be relied upon. It is true that PW/10 admitted that she made the statement before the learned Magistrate being tutored by the police and in such circumstances, her statement recorded under section 164 Cr.P.C. may not be considered. However, there is no dispute before such statement made to the Magistrate her statement was recorded by the police. There was no evidence that those statements made to the police was not volunteered and manufactured. However, her evidence in court could not be contradicted with reference to her statement made during investigation. Therefore, even excluding her statement before the learned Magistrate, the balance evidence can safely be acted upon. The PW/1, the maker of the FIR was not an eye-witness to the occurrence, therefore, any omission in the FIR as regards to the incident cannot be a ground to disbelieve the entire prosecution case. Therefore, even excluding her statement before the learned Magistrate, the balance evidence can safely be acted upon. The PW/1, the maker of the FIR was not an eye-witness to the occurrence, therefore, any omission in the FIR as regards to the incident cannot be a ground to disbelieve the entire prosecution case. We are unable to accept the contention of the learned advocate of the appellant, the case of the prosecution has to be discarded since in the inquest report nothing was noted as to the manner of the incident and role played by the appellant. The basic purpose of holding inquest is to record the apparent cause of death, namely, whether it was suicidal, homicidal or accidental and to describe the wounds as may be found on the body and also the weapon and instrument by which such injuries might have been inflicted. It does not contemplate the manner in which the incident took place and the identity of the assailant also be noted there. So far as the recovery of the offending weapon pursuant to the statement of the appellant is concerned, we find, the learned counsel for the appellant was absolutely correct, when contended the trial court wrongly admitted such recovery under section 27 of the Evidence Act. We do not find from the evidence of the seizure witnesses that it is the appellant who brought out the weapon from a hidden place and made over the same to the police, therefore the recovery of weapon certainly will not come within the meaning of section 27 of the Evidence Act, but the recovery of the offending weapon from the place of occurrence cannot be excluded from consideration. The Doctor who held the post-mortem was examined as PW/14, not only that he adduced that the cause of death was the antemortem injuries found in the person of the victim and homicidal in nature, at the same time when the offending weapons was shown to him, he stated that the injury might have been caused by that weapon. It is true that the PW/14, in his cross-examination admitted that the injuries might be homicidal in nature. It is true that the PW/14, in his cross-examination admitted that the injuries might be homicidal in nature. It is beyond debate that evidence of an autopsy surgeon is only corroborative in nature and when we do not have any reason to disbelieve the PW/10, the eye-witness to the occurrence, such evidence cannot raise any doubt on the question that the victim suffered a homicidal death. In view of above, we do not find any merit in this appeal and the trial court was fully justified to convict the appellant. This appeal fails and stands dismissed. The office is directed to send down the Lower Case Record.