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2016 DIGILAW 443 (CAL)

Makru @ Makar Majhi v. State of West Bengal

2016-05-19

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2016
JUDGMENT : ANIRUDDHA BOSE, J. 1. The appellant has been convicted on the charge of patricide by the Additional Sessions Judge, Fast Track Court No. 1 under Section 302 of the Indian Penal Code, 1860. In a judgment delivered on 10th March 2004, in Sessions Case No. 228 of 2003 corresponding Sessions Trial No. 57 of 2003, the Trial Court sentenced the appellant to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- in default of which he has been directed to suffer simple imprisonment for one month. This appeal is against that judgment. 2. Case against the accused was started on the basis of written complaint filed by one Pilu Majhi, another son of the deceased victim on 20th June 1990 at 1 P.M. in Balarampur Police Station in the district of Purulia. Substance of his complaint is that on the preceding night, that is in the night of 19th June 1990 at about 10 P.M. the accused was seen fighting with his father, Falari Majhi at their house with a stick which eventually killed the latter. On being informed by Kalu Majhi, he reached the residential house of his father. He saw the dead body of the father of the complainant was found lying on the veranda with blood on the floor and there were signs of injuries caused by a stick on his body. From the materials available, we find that Pilu Majhi was living in a separate house. The complaint records that Pilu Majhi had received the information of the fight from one Kalu Majhi, who went to Pilu Majhi’s residential house to inform him of the incident. There was no specific written complaint from Pilu Majhi and the officer of the police station had himself reduced the oral information of Pilu Majhi into writing forming the basis of the formal F.I.R., which was registered as Case No. 33/90 dated 28th June 1990. Pilu Maji has deposed as Prosecution Witness No. 1, whereas Kalu Majhi has been examined as the Prosecution Witness No. 4 in course of trial. Kalu Majhi is a nephew of the deceased. 3. In his complaint, the P.W. 1 explained the delay in lodging the complaint, stating that the occurence of the incident took place very late at night and it was raining heavily at that time. When he lodged the complaint, he was accompanied by two other villagers. Kalu Majhi is a nephew of the deceased. 3. In his complaint, the P.W. 1 explained the delay in lodging the complaint, stating that the occurence of the incident took place very late at night and it was raining heavily at that time. When he lodged the complaint, he was accompanied by two other villagers. The F.I.R. is in the regulation format, on the body of which itself the complaint has been recorded. The formal F.I.R. and the complaint in writing have been marked separately, as Exhibits ‘3’ and ‘2’ respectively. The police official who had taken down the complaint of the P.W. 1 was one B.B. Samaddar, a sub-inspector of Balarampur police station at the material point of time. As it appears from Exhibit ‘2’, the complaint was written in bengali and the same was read over to the complainant, and the complainant had admitted correctness of the recordal. Said B.B. Samaddar, however, had expired when actual trial was being conducted and there is evidence of one Chittaranjan Chatterjee, another sub-inspector of police to that effect. Chittaranjan Chatterjee has deposed as P.W. 6. At the time of his deposition he was posted as an officer-in-charge at Jhalda police station. In course of his deposition he has sought to prove the written complaint (exhibit – 2) as well as formal F.I.R. (exhibit - 3) by proving the signature of B.B. Samaddar. On going through the Case Diary, he deposed that said B.B. Samaddar had conducted the investigation during which he visited the place of occurence, held inquest and prepared the sketch map. The rough sketch map with the index of the place of occurence has been marked ‘exhibit- 4’ whereas the carbon copy of the inquest report has been marked ‘exhibit – 5’. In course of investigation, the Investigating Officer had seized bloodstained earth and control earth, one Khatia, one bloodstained Katha (a sheet used as a wrapper) and a bloodstained dothi of the deceased. This seizure list has been marked ‘exhibit – 6’. These three exhibits, being ‘4’, ‘5’ and ‘6’ have also been proved by the P.W. 6, on the basis of handwriting and signature of said B.B. Samaddar. The P.W. 6 in his deposition stated that B.B. Samaddar and he were posted together at Balarampur police station, and he was acquainted with the handwriting and signature of said B.B. Samaddar. 4. These three exhibits, being ‘4’, ‘5’ and ‘6’ have also been proved by the P.W. 6, on the basis of handwriting and signature of said B.B. Samaddar. The P.W. 6 in his deposition stated that B.B. Samaddar and he were posted together at Balarampur police station, and he was acquainted with the handwriting and signature of said B.B. Samaddar. 4. Altogether six witnesses were examined by the prosecution, among whom reliance was placed primarily on the depositions of P.W. 1, that is Pilu Majhi and P.W. 4 (kalu Maji) by the Trial Court in coming to the finding of guilt. P.W. 4 has deposed as an eye-witness of the assault by the accused on the deceased and he claims to have seen this act of assault. In his examination-in- chief he has stated that he heard the “hue and cry” from the house of the deceased victim on that night, which house is adjacent to his own house. Thereafter, he went to the house of Falari and found the accused assaulting Falari Majhi with lathi. As regards the location of the house where he saw the assault, in cross-examination he stated that he did not enter their house but saw the incident from the courtyard. It was on information of P.W. 4 the P.W. 1 had gone to the house where his father stayed from his own house in the same village. This transpires from the deposition of P.W. 1. It also transpires from the deposition of P.W. 1 that on going to the place of occurence, he found that his father was lying dead and that there were injury marks on his body. As regards the place where he saw his father lying dead, the P.W. 1 has stated that he was lying in the chala of the house. From the point of time both P.W. 1 and P.W. 4 claim to have had reached the place of occurence, there is uniformity in their respective versions, except that the P.W. 4 did not specify the location in the house where he saw the victim was lying dead. From the point of time both P.W. 1 and P.W. 4 claim to have had reached the place of occurence, there is uniformity in their respective versions, except that the P.W. 4 did not specify the location in the house where he saw the victim was lying dead. The other point on which there is no corroboration by P.W. 4 is with regard to the statement of the P.W. 1 that Makru, the accused had confessed to him that he had assaulted the victim with a ‘Sagun’, which means lathi and that on the next date when police came, Makru had confessed his guilt to the police. No lathi, however, forms the part of the articles seized, as reflected in the seizure list (Exhibit - 6). 5. The village in which the incident occured is known by the name of Gorga tola. The place of occurrence, as has been described in the Investigation Report being ‘exhibit – 5’ is the veranda of the house of the deceased, which also is the house in which the accused resided. This report caries the signatures of Sambhu Majhi, Pilu Majhi (P.W. 1) and Gagi Majhi as witnesses. Among them Pilu Majhi alone has been examined as prosecution witness. 6. In the rough sketch map, however, the place of occurence has not been identified. There is a demarcated rectangular space on the sketch map identified by the letter “P”, but in the Index of the rough sketch map, it has not been explained what the letter “P” signifies. The P.W. 6 in course of his cross-examination could not also give any explanation on this count. Apart from this minor discrepancy in the sketch map as regards place of occurence, there is no major discrepancy as regards place of death and the cause of death of the victim. As it appears from the answers given in cross-examination of the P.W. 5 (the autopsy surgeon), case was sought to be made out by the defence that injury of such nature could be caused if some heavy object fell on the head of a person, but no material is there before us that any heavy object had fallen on the head of the victim. The appellant’s answers to the questions put in course of examination under Section 313 of the Code of Criminal Procedure, 1973 are that of bare denial. The appellant’s answers to the questions put in course of examination under Section 313 of the Code of Criminal Procedure, 1973 are that of bare denial. The carbon copy of the post-mortem report, which is Exhibit – ‘1’ records head injury caused by blunt object to be the cause of death. The autopsy surgeon (Dr. Dipak Kumar Basak) has also opined that the death was homicidal in nature. He has deposed as the P.W. 5 and has proved the post-mortem report marked ‘exhibit – 1’ and in his deposition he has, inter alia stated:- “ON 21.6.90 I was posted in the same place in same capacity. On that date I held Post Mortem examination over the dead body of Falari Majhi 60 years Hindu Male of village Mejhidih Tola Gorga P.S. Balarampur. On examination I found that the body was decomposed and suollen with extensive haematomma with lacerated injury 3” x 1” on the occipital region obliquely placed. There was extra vacation of blood in the subtataneous tissue. On dissection there was haemourage in the occipital region of brain. Internal organs were mostly decomposed. There was alcoholic smell in the stomach with undigested rice. Cirrhotic change was also noted in the liver. Cause of death in my opinion was due to head injury caused by blunt object homicidal in nature.” (quoted verbatim) 7. As we have already observed, the Trial Court has primarily relied on the eye-witness account of the P.W. 4 as also the deposition of P.W. 1 to come to the finding that death of Falari Majhi was on account of fatal assault by the accused. In the opinion of the Trial Court the cause of death appearing from the post-mortem report as also the deposition of P.W. 5 matched with the narration of the incident by the P.W. 4 and the evidence of P.W. 1 as a post-occurence witness. The impugned judgment has been assailed by Mr. Bakshi, learned counsel for the appellant on the ground, inter alia, that based on a single eye-witness account, such conviction ought not to have been awarded. He submitted, relying on the judgment of the Supreme Court in the case of Juwarsingh and others Vs. The State of Madhya Pradesh ( AIR 1981 SC 373 ) that Court is not bound to accept the testimony of a witness which is contrary to prove facts. He submitted, relying on the judgment of the Supreme Court in the case of Juwarsingh and others Vs. The State of Madhya Pradesh ( AIR 1981 SC 373 ) that Court is not bound to accept the testimony of a witness which is contrary to prove facts. Oral testimony of such witness ought to be discarded and cross-examination is not the only method of discrediting a witness. He pointed out at the material point of time there was no other co-villager as witness. On this point, he submitted that it is improbable that no neighbour would reach the place of occurence in such a situation, though there were houses of different persons around the house of the victim. He also drew our attention to the deposition of the P.W. 1 that in between his house and the house in which his father resided, there were many intervening dwelling units, referred by the said witness as houses. His further submission is that the place of occurence was also not properly identified by the P.W. 4 which raised doubt on veracity of his deposition. The other aspect of the case he addressed us on was unusual delay in making of complaint. 8. In the First Information Report, the place where the dead body of Falari Majhi was found has been described as the veranda of his house. The inquest report also describes the place where the body was found to be the veranda of the house of the deceased Falari Majhi. The P.W. 4, in his examination-in-chief has stated that on hearing ‘hue and cry’ from the house of Falari at night he went there and found the accused assaulting Falari Majhi with lathi. His version is that on seeing this incident, he went to the house of brother of the accused, Pilu Majhi (P.W. 1) to narrate to him the incident. When both of them went back to the house of Falari Majhi, they found the victim lying dead in the house. The same version appears from the evidence of P.W. 1. In his cross-examination, the P.W. 4 stated that at that time, he was sleeping after having dinner. He woke up on hearing ‘cries’. He, however, did not enter the house of the accused but saw the incident from the courtyard of his house. He further stated that dispute was going on between them inside the room. In his cross-examination, the P.W. 4 stated that at that time, he was sleeping after having dinner. He woke up on hearing ‘cries’. He, however, did not enter the house of the accused but saw the incident from the courtyard of his house. He further stated that dispute was going on between them inside the room. Again in cross-examination he stated:- “The courtyard of Makru is to the east of him room. Excepting myself, none of the other inmates of my house came out on hearing cries. I took Pilu with me and entered the house of Makru. I found that Falari was lying dead in the house of Makru.” 9. We have also been urged to disbelieve the eye-witness account of the incident as narrated by P.W. 4 on the ground that it would not have been possible to see the incident of assault as it was raining heavily and moreover there is contradiction in describing the place of occurence. The house of P.W. 4, according to Mr. Bakshi was not described in the sketch map and there is reference to courtyard of the complainant as also an open veranda, though admitted position is that the complainant’s residence is situated at some distance. He has also argued that his client did not have the opportunity to cross-examine the Investigating Officer as he had died before the trial commenced and his signatures on the F.I.R. and the report under Section 174 were not clear. The other point raised by Mr. Bakshi was that there is inconsistency about the time when the crime was reported. The time of lodging the First Information Report is recorded to be 1 P.M. (13.00 hours) whereas the P.W. 2 (Naran Singh Mura), who was an erstwhile member of the Gram Panchayat stated that he was informed of the incident on the next date (which would be 20th June 1990) at about 11 A.M-12 P.M. and he went to the house of Falari after 10-20 minutes on getting information. When he reached the residential house of the victim, he found that police was preparing to take the dead body. Mr. Bakshi, upon calculation of time from the deposition of P.W. 2 fixed the time of visit of P.W. 2 to the place of occurence to be 12.20 P.M. approximately, which is before the time the F.I.R. was actually recorded. When he reached the residential house of the victim, he found that police was preparing to take the dead body. Mr. Bakshi, upon calculation of time from the deposition of P.W. 2 fixed the time of visit of P.W. 2 to the place of occurence to be 12.20 P.M. approximately, which is before the time the F.I.R. was actually recorded. The time when investigation has commenced on 20th June 1990 as per the Investigation Report, is 16.45 hours. It was also submitted on behalf of the appellant that the post-mortem report ought to be disbelieved as this was a carbon copy of the original and no one gave evidence as to who had prepared the copy. Mr. Bakshi further stressed on the fact though the offending weapon was seized, as it appears from deposition of the P.W. 1, this was never made an exhibit. In fact, seizure of lathi is not reflected in the seizure list also. 10. The alleged confession of the accused before the Police Officer is to be discarded straightaway as such confession is not admissible as evidence. So far as making of inquest and preparation of inquest report are concerned, we cannot place much reliance on the content thereof as the defence had no opportunity to confront the Investigating Officer, who passed away before evidence was recorded. There are also some discrepancies in describing the place of occurence in the sketch map and we have already referred to such discrepancies. What we can accept, on the aspect of initial investigation, is that the F.I.R. was indeed lodged and thereafter inquest was made by a police officer. We, in any case, do not think that prosecution case ought to fail altogether because the defence had no opportunity to cross-examine the Investigating Officer. The deposition of P.W. 1 and P.W. 6 establish these facts. As regards the dead body having been found in the veranda, there is no effective contradiction or contrary suggestion from the defence. The discrepancy appearing from the evidence of P.W. 2 with regard to time of arrival of the police officer is also not of great significance, as the incident occurred in a less developed rural district of West Bengal, Purulia and we cannot expect the residents there to keep record of precise timings of having come to know of an incident and subsequent developments in connection with that incident. Learned Public Prosecutor submitted that in any event there is no major time lag in describing the time of arrival of police at the place of occurence which could raise serious doubt on credibility of the prosecution version of the case. The cause of death, in our opinion, has been explained by the P.W. 5. He has proved the post-mortem report and in his examination-in-chief he has stated that the carbon copy of the post-mortem report which has been marked ‘Exhibit – 1’ is the copy of the original, which was prepared by him. In the absence of any contrary evidence, the prosecution, in our opinion, has established that the victim died from injuries which were caused by a blunt object such as lathi. The opinion of the autopsy surgeon matches with the statement of the P.W. 4 in his examination-in-chief that lathi was used by the accused to assault the victim. Delay in lodging the F.I.R. has also been explained by the P.W. 1, being the incident having occurred late at night when it was raining heavily. From his deposition, it also appears that the police station was not very close to the place of occurence. He has described the distance to be 3 Kilometers from his house, while walking time has been specified to be one hour to cover such distance. 11. On behalf of the appellant, referring to the judgment in the case of Juwarsingh (supra) it was submitted that we ought not to accept the prosecution story on sole testimony of the P.W. 4. So far as act of assault is concerned, there being no other eye-witness, we shall subject the deposition of P.W. 4 to a high degree of scrutiny but we do not think the said witness ought to be altogether disbelieved only because there is no other eye-witness account of assault. There is no evidence of past enmity between the accused and the P.W.1 or P.W. 4. We shall first test his statement as regards the place from which he claims to have witnessed the act of assault. He has stated in his deposition that he woke up on hearing ‘hue and cry’ from the house of Falari Majhi which is adjacent to his own house. Thereafter, he went to their house and he witnessed the incident of assault from the courtyard of the house of Falari Majhi. He has stated in his deposition that he woke up on hearing ‘hue and cry’ from the house of Falari Majhi which is adjacent to his own house. Thereafter, he went to their house and he witnessed the incident of assault from the courtyard of the house of Falari Majhi. He did not enter into the house. It was raining heavily at that point of time, he has stated in his deposition. We do not think we can disbelieve this part of the evidence on the ground that the act of assault would not have been visible from the courtyard, as was argued on behalf of the appellant. On this specific point, that the act of assault would not have been visible from the courtyard, there is no suggestion to the contrary from defence side in course of cross-examination. Subsequently, his going to the house of P.W. 1 and return to the place of occurence with the P.W.1 also stand established, depositions of both P.W. 1 and P.W. 4 being corroborative in this regard. P.W. 1 in his cross-examination has stated that his deceased father was lying in the ‘chala’ of the house and he has described location of the ‘chala’ to be in the east of the house. He, however, has not explained what the expression ‘chala’ mean. The P.W. 4 has stated that he saw Falari Majhi was lying dead in his house. Though there is no specific location identification in deposition of P.W. 4 in describing where the deceased victim was lying, we do not think for this reason the prosecution story has to be disbelieved. In complaint before police, he had specified veranda to be the location where body of the victim was lying. The corroboration of the location by P.W. 4 as regards the place where the victim was lyingdead is deficient in particulars but is not altogether contradictory. P.W. 2 has also stated that he found Falari Majhi was lying dead in his house, i.e. in the house of Falari Majhi. 12. There is no evidence as regards the exact moment of death of Falari Majhi as evidence of the P.W. 4 is that the time when he had left the place of occurence to inform P.W. 1 of the same, the victim was being subjected to assault by lathi. 12. There is no evidence as regards the exact moment of death of Falari Majhi as evidence of the P.W. 4 is that the time when he had left the place of occurence to inform P.W. 1 of the same, the victim was being subjected to assault by lathi. Discovery of the dead body within a short period of time with injury marks, which in the opinion of the autopsy surgeon could be caused by a blunt object like a lathi point to the act of assault by the accused as the cause of death. There is no other suggestion as to how the death of Falari Majhi occurred. Moreover, evidence of P.W. 1 is that on the night the incident occurred, the accused had confessed to him that he had assaulted the victim with a lathi. But on this count, he was contradicted by the defence in course of cross-examination. Though he had stuck to his stand, there is no corroboration of such extra-judicial confession by any other witness. Thus, we are not inclined to hold the accused guilty solely on the basis of such extra-judicial confession. 13. In our opinion, guilt of the accused in commission of the offence of murder of Falari Majhi has been proved beyond reasonable doubt on other factors emerging from evidence. The accused has failed to explain the cause of death of Falari Majhi. If it was the case of accused that the victim died because of being hit by some other object accidentally, or otherwise, then the accused ought to have come out with an explanation. No intervening circumstance has been revealed from the evidence available on record which could have been the cause of death of the victim barring injuries suffered from the fight. No such evidence has been adduced by the accused. We also do not find any reason to disbelieve the P.W. 4. There is no reason to interfere with the judgment and order of the Trial Court. The finding of the Trial Court on guilt of the accused and the sentence awarded by him is sustained. The appeal shall stand dismissed. 14. Let the Lower Court Records be sent down forthwith along with a copy of this judgment. A copy of this judgment shall also be made available to the appellant by the Trial Court forthwith. 15. The finding of the Trial Court on guilt of the accused and the sentence awarded by him is sustained. The appeal shall stand dismissed. 14. Let the Lower Court Records be sent down forthwith along with a copy of this judgment. A copy of this judgment shall also be made available to the appellant by the Trial Court forthwith. 15. Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.