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2017 DIGILAW 166 (CAL)

Sripada Let v. State of West Bengal

2017-02-13

SANJIB BANERJEE, SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the legal pregnability of the judgment and order of conviction dated 03.03.2008 and 04.03.2008 passed by the learned Additional District & Sessions Judge, Fast Track 3rd Court, Rampurhat, Birbhum in Sessions Trial No. 1(3)/07 the appellant has filed this appeal. By the said impugned judgment, the learned Trial Court has convicted the present accused appellant under Section 498A/302 of I.P.C. and sentenced him to suffer rigorous imprisonment for life. 2. In the memorandum of appeal the appellant has contended that the learned trial Court failed to appreciate the evidence of the prosecution witnesses in its proper perspective and failed to consider the major discrepancies in the evidence. 3. To come to a finding and to appreciate the argument and counter argument of both sides, it would be profitable to revisit the prosecution story. Sieving out the unnecessary details, the prosecution case in a capsulated form is that the marriage between the victim and the appellant took place nearly three years before the fateful day. Just after the marriage the present appellant accused began to put pressure upon the victim for bringing dowry and, as the said demand was not fulfilled she was subjected to torture. On the fateful day, the accused appellant assaulted her at 8 0' Clock at night and when the deceased protested, the accused appellant tied her hands, poured kerosene on her body and set her ablaze. When the victim was trying to come out from the bedroom, the appellant pushed her back into the room. The neighbours came to know about the incident and informed the same to the complainant. He rushed to the hospital and the victim disclosed to him how she suffered the burn injuries. On the next day, the victim breathed her last. Disclosing the ill-episode the de facto complainant lodged the F.I.R. and set the law into motion. 4. Soon after registration of F.I.R, the investigating agency came into operation. In course of investigation, the Investigating Officer collected inquest report, post-mortem report, examined the available witnesses under Section 161 Cr.P.C., and prepared a rough sketch-map with index. On completion of the investigation, the officer submitted a charge-sheet under Sections 498A/302/34 of I.P.C. 5. Pursuant to the charge-sheet submitted by the Investigating Officer, the learned Trial Court considered the material available and framed the charges under the aforesaid sections. On completion of the investigation, the officer submitted a charge-sheet under Sections 498A/302/34 of I.P.C. 5. Pursuant to the charge-sheet submitted by the Investigating Officer, the learned Trial Court considered the material available and framed the charges under the aforesaid sections. The said charges were read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. It further appears from the L.C.R. that the learned Trial Court recorded the deposition of witnesses, recorded the statement of the accused under Section 313 Cr.P.C. and, after a threadbare discussion on the evidence, found the accused guilty under Sections 498A/302/34 of I.P.C. 6. At the time of argument, learned Counsel appearing on behalf of the appellant contended that the evidence of the prosecution witnesses suffer from material irregularity and illegality and that the testimonies are palpably inconsistent with each other. 7. In such circumstances, we are to scrutinize the evidence of the witnesses very meticulously. The P.W. 1 in his examination-in-chief stated the story of F.I.R, including the physical and mental torture suffered by the victim at her matrimonial home. He also stated that on the fateful day the appellant tied the hands of the victim with her sari and poured kerosene oil over her body and thereafter set fire upon her person. His such part of his evidence is almost the replicated version of the F.I.R. In his evidence-in-chief he further contended that one Minoti Let (P.W. 7) and Baijayanti Let (P.W. 3), who were the neighbours of the accused, informed the de facto complainant that the appellant committed murder of victim by setting fire on her body. In his cross-examination he further clarified the situation by saying that those P.Ws reside in the vicinity to the house of the appellant. After getting such information, he himself along with his two daughters and one relative Bishnu Let rushed to the spot and at that time the victim also disclosed to him that her husband tied her hands with a sari and thereafter set fire on her person. In course of his cross-examination, he stated that on the fateful day the appellant came to his house at or about 7.00 pm and there was hot altercation between the appellant and the victim. In course of his cross-examination, he stated that on the fateful day the appellant came to his house at or about 7.00 pm and there was hot altercation between the appellant and the victim. The ground of such hot altercation was also mentioned by him, stating that accused is a lazy person and for which they had been suffering from poverty. In course of such cross-examination, he disclosed that when he rushed to the place of occurrence, he found the accused trying to extinguish fire. Referring to such part of his evidence, learned Counsel appearing on behalf of the appellant contended that the accused had tried to save the victim. But such argument is devoid of any merit on the ground that this P.W. never stated that the accused was trying to extinguish fire of the victim. It is in evidence that while the victim was coming out from her room in burnt condition, the accused himself pushed her back into the room and for which he also sustained a small burn injury. It seems that this witness wanted to say that the accused was trying to extinguish fire of his own body and not of the victim. It was suggested to him that the victim committed suicide, but he ruled out the said suggestion. Other parts of his examination were also in the form of suggestion which he denied out rightly. 8. The P.W. 2 is another daughter of the complainant. After getting the information, she went to the house of the victim and at that time her sister (victim) told her that the accused set fire on her body after tying her hands with a sari. In course of her cross-examination, she initially stated that Baijayanti Let (P.W. 3) informed her that the victim committed suicide. But in the same breath she stated that Baijayanti informed the victim’s family that the victim suffered a serious burn injury at her matrimonial home. In course of cross-examination she again stated that the victim committed suicide. Referring to such part of her evidence, learned Counsel appearing on behalf of the appellant contended that it was a case of a suicide. Evidence cannot be appreciated in sanitary isolation. This part of her evidence has to be considered along with the evidence of other witnesses. In course of cross-examination she again stated that the victim committed suicide. Referring to such part of her evidence, learned Counsel appearing on behalf of the appellant contended that it was a case of a suicide. Evidence cannot be appreciated in sanitary isolation. This part of her evidence has to be considered along with the evidence of other witnesses. This apart, this P.W. 2 in her examination-in-chief categorically stated that the victim told her that the accused set fire upon her person. That part of the evidence was not challenged by the appellant in cross-examination and only suggestions were given to that effect which this P.W. 2 rejected. 9. The P.W. 3 was a neighbour of the accused. She was very specific in saying that after hearing a huge cry she went to the spot and found the victim in a burnt condition. This P.W. 3 reported the incident to the de facto complainant. The evidence of the P.W. 1 speaks that this P.W. 3 came to his house and informed him of the incident. In the F.I.R. also he mentioned that some of the neighbours of the accused disclosed the incident to him. Therefore, the evidence of P.W. 1 and evidence of P.W. 3 are in harmony with each other in this respect. In course of cross-examination she also stated that a quarrel was going on between the accused and the victim as the accused used to remain in the house without any work. In course of cross-examination she reaffirmed her own statement saying “on my arrival I found Rohini crying with a loud voice with burning flame and hands were tied by sharee.” Such statement was neither challenged nor was any suggestion given to her in such regard. Therefore, it seems to us that the evidence of the P.W. 3 is quite credible. The P.W. 4 also unequivocally corroborated the prosecution story. From his cross-examination, the defence could not derive any benefit. He was also categorical in saying that when he arrived at the spot, he found that the victim was suffering from burn injuries but she had sense. (Emphasis supplied by us). 10. The P.W. 5 is the mother of the victim. She also corroborated the testimony of P.W. 1 and P.W. 3 substantially. He was also categorical in saying that when he arrived at the spot, he found that the victim was suffering from burn injuries but she had sense. (Emphasis supplied by us). 10. The P.W. 5 is the mother of the victim. She also corroborated the testimony of P.W. 1 and P.W. 3 substantially. She was asked if she had told the Investigating Officer that the accused pushed the victim inside the room and in reply she stated that the Investigating Officer had not asked her the said question. There is no ambiguity in her testimony. 11. The P.W. 6 has corroborated the evidence of P.W. 1, 3 and 4 almost in the same tone and tune. The P.W. 7, another neighbour of the accused, deposed in this case. According to her, hearing the hue and cry she went to the spot and found the victim in a burnt condition. She disclosed the said incident to the parents of the victim. The P.W. 8 is a witness to the inquest. The P.W. 9 stated that on being asked by him, the victim disclosed that the accused tied her hands with a sari and then poured kerosene oil on her body. In course of his cross-examination, he admitted that in the hospital the victim was in a restless condition. P.W. 10 openly stated that the accused committed murder of the victim by setting fire on her body. From her cross-examination the defence could not earn any profit. 12. The P.W. 11 was also one of the neighbours of the victim’s matrimonial house. His house is within 100/150 cubits from the house of the accused. In his examination-in-chief he stated that after going to the spot he found the victim in a burnt condition and at that time the victim disclosed to him that the appellant set her on fire. In course of cross-examination, he stated that he did not disclose to the Investigating Officer that the accused tied the hands and legs and set fire on the victim’s body after pouring kerosene oil. This is a wild suggestion in our view. It is nobody’s case that legs of the victim were also tied up. The other part of her cross-examination is not much relevant for adjudication of this appeal. The P.W. 12 was declared hostile. His evidence is merit less on the ground that he is a hearsay witness. This is a wild suggestion in our view. It is nobody’s case that legs of the victim were also tied up. The other part of her cross-examination is not much relevant for adjudication of this appeal. The P.W. 12 was declared hostile. His evidence is merit less on the ground that he is a hearsay witness. The P.W. 13 had conducted inquest report. The P.W. 14 was the medical officer. In course of his cross-examination he admitted that the patient was not capable of speaking due to 100 per cent burn injury. Learned Counsel appearing on behalf of the appellant emphasises such aspect and contends that the evidence of other witnesses should be ignored because the patient was not capable of speaking anything. We are in respectful disagreement with him on the ground that the incident took place at or about 9:00 pm and immediately thereafter the local witnesses went there and at that time the victim had disclosed to them as to how she caught fire. But this doctor in his cross-examination stated that the patient was admitted on the next day i.e. at 1:25 am (Night) on 12.07.2006. Therefore, at the time of admission the patient may have been unable to speak due to severe burn injuries but at the initial stage she was capable of speaking. The P.W. 15 is the autopsy surgeon who conducted the post-mortem examination. He opined that the death was due to extreme shock from burn injury. Learned Counsel appearing on behalf of the appellant tried to demolish his evidence on the ground that there was a noting in the treatment sheet “suicidal burn”. The P.W. 14, the concerned doctor, who had admitted the victim, stated that the patient party stated to him that “the patient committed suicide by setting fire on her body after pouring kerosene oil by her own hand.” This goes to show that the patient herself did not say that she wanted to commit suicide, rather the patient party had stated it. Therefore, we are unable to accept the argument advanced by learned Counsel appearing on behalf of the appellant. 13. The P.W. 16 was the Investigating Officer, who had conducted the investigation. Learned Counsel appearing on behalf of the appellant has referred to some parts of the cross-examination of this witness particularly some omissions in the statement of Dipali Let, Bistu Let, Natobar Let and Rup Chand Let. 13. The P.W. 16 was the Investigating Officer, who had conducted the investigation. Learned Counsel appearing on behalf of the appellant has referred to some parts of the cross-examination of this witness particularly some omissions in the statement of Dipali Let, Bistu Let, Natobar Let and Rup Chand Let. It was asked of the Investigating Officer if Dipali Let told him that the accused pushed the victim inside the room while she was coming out from the room and that he got information from Minati and Baijayanti of her village. It seems to us that these are vague questions. The evidence of Dipali Let speaks that the victim told her that the accused set fire on her body. That is the main case of the prosecution. Therefore, even if assume that Dipali did not tell the officer about the fact that the accused pushed the victim inside the room is inconsequential and not fatal for the prosecution. It was suggested to Baijayanti Let, whether she told the Investigating Officer that the hands and legs of Rohini were tied or not. It is nobody’s case that the legs were also tied. Therefore, the so called contradiction is totally baseless. Similarly, the Investigating Officer’s evidence in regard to statement of Natobar and Rup Chand are of no consequence. 14. After going through the evidence of the prosecution witnesses we find that they are in orchestrated harmony with each other. Not only the relatives of the victim, but the co-villagers of the accused also came forward to support the prosecution case. There is an usual inertia of the local people to come to Court to depose against a co-villager (accused), lest they incur the wrath of the accused. In spite of that, when they come to depose after overcoming the inertia and the fear of wrath, there is always an impress of truth in it. We are unable to appreciate their evidence with a lens fitted with doubt. 15. Obviously, there are certain omissions and contradictions but in our view those are very minor in nature and so we are unable to attach any importance to those omissions and contradictions. However, we do not find any ingredient of the offence under Section 498A of I.P.C. The accused appellant must be acquitted of that charge. 16. 15. Obviously, there are certain omissions and contradictions but in our view those are very minor in nature and so we are unable to attach any importance to those omissions and contradictions. However, we do not find any ingredient of the offence under Section 498A of I.P.C. The accused appellant must be acquitted of that charge. 16. Having regard to the facts and circumstances of this case and after going through the evidence we are of the view that the conviction and sentence under Section 302 of I.P.C. awarded by the trial Court must be maintained. 17. Let a copy of this order and L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. I Agree. 18. It has come to our notice in several appeals taken up over the last six weeks or so that the examination of witnesses by the investigating officer leaves a lot to be desired; and, correspondingly, the recording of the deposition of such witnesses, particularly their cross-examination, may not accurately reflect the witnesses’ versions of the events or any perceived discrepancies in the statements given to the investigating officer and the testimony at the trial. 19. Under Section 161(1) of the Code of Criminal Procedure, 1973, the investigating officer is authorised to “examine orally any person supposed to be acquainted with the facts and circumstances of the case.” Sub-section (2) of Section 161 of the Code mandates that in course of the examination of any person by the investigating officer, “Such person shall be bound to answer truly all questions relating to such case put to him by such officer …” However, such person is not bound to answer questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The final sub-section instructs that the investigating officer “may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.” 20. The purpose of such provision is to facilitate the investigation so that the investigating officer may form an opinion as to how the relevant offence was committed and make out a case to be run by the prosecution at the trial. The purpose of such provision is to facilitate the investigation so that the investigating officer may form an opinion as to how the relevant offence was committed and make out a case to be run by the prosecution at the trial. While it is appreciated that courts should not attach undue importance to the statements made in course of the investigation and recorded under Section 161 of the Code, the credibility of a witness called by the prosecution at the trial is often tested by comparing the statements made by him in his examination-in-chief with the statement given by him at the time of the investigation. Indeed, in course of the cross-examination of the prosecution witnesses at the trial, the defence tends to bring out the variance in the statement made by a prosecution witness to the investigating officer and his evidence in course of his examination-in-chief. 21. It is necessary, therefore, that an element of care be taken both in the recording of the statement of a witness in course of the investigation and the reference to such statement if the trend of the cross-examination is that the witness was seeking to embellish on his original statement or say something in his testimony which was at variance with the statement recorded by the investigating officer. The usual practice, that is followed by an investigating officer while examining a person under Section 161(1) of the Code is to require such person to furnish all information relevant to the facts and circumstances of the particular case, especially, the commission of the offence. However, in this country where witnesses may be illiterate or not conscious enough to understand the ramification of their statements, it is necessary that questions be put to such persons by the investigating officer to elicit maximum information. It is possible that an immediate post-occurrence witness hears the victim of a crime say something or notices the presence or absence of some person that may have a bearing on the investigation; but the significance of what is said by the victim or the presence or absence of any person does not dawn on the witness for him to make a suo motu statement in such regard. It is here that the role of the investigating officer becomes important as he may put questions, after recording a witness’ version of the incident, to obtain maximum information. It is here that the role of the investigating officer becomes important as he may put questions, after recording a witness’ version of the incident, to obtain maximum information. The answers to such questions would also be a check on the witness being tutored before the trial to dwell on aspects that he did not mention in his version of the incident recorded in the statement given to the investigating officer. 22. Similarly, when a prosecution witness is charged by the defence, in course of his cross-examination, of embellishing his original version or adding details that he had not furnished in his statement to the police, the relevant part of the statement must be quoted and should be evident from the recording of the cross-examination. This is absolutely imperative; for, it is not necessary that the judge who records the evidence at the trial is the same person who decides the case. Further, since the appellate court looks into the entirety of the evidence and the circumstances leading to the conviction or acquittal of an accused, the recording of the evidence in cross-examination may be misleading if the entirety of the witness’ original statement on the relevant aspect covered by the question in the cross-examination is not reflected therein. 23. There cannot be any set of questions that can be included in a standard form for investigating officers to put the same to the persons acquainted with the facts and circumstances of a particular case. As to what questions should be put to which person has to be decided by the investigating officer based on the extent of the person being acquainted with the facts and circumstances of a particular case. Equally, it is not necessary for the entire statement given by a witness under Section 161 of the Code to be reproduced in his cross-examination at the trial. It is only the entirety of an aspect of his statement which is doubted by the defence, as evident from the relevant question in the cross-examination, that should be accurately reflected in the evidence. 24. It is only the entirety of an aspect of his statement which is doubted by the defence, as evident from the relevant question in the cross-examination, that should be accurately reflected in the evidence. 24. It is necessary in the interests of justice to issue directions both to the investigating officers and to courts conducting criminal trials that the investigating officers should not merely record the gist of a witness’ version of the facts and circumstances of a particular case; but the investigating officers should also put such questions as may be necessary and expedient in the circumstances to elicit the fullest information from such witness. Similarly, when a question is put to a prosecution witness in his cross-examination seeking to bring out any discrepancy between his initial statement given to the investigating officer and his testimony at the trial, the relevant aspect of the statement given to the investigating officer must be completely reflected in the question put to him by the defence so that the nature or extent of the perceived deviation can be best appreciated. 25. It has also come to our notice in many matters that several questions are clubbed together and the response of an accused sought in course of the examination of the accused under Section 313 of the Code of 1973. Routinely, the accused may respond to the questions with identical answers of “I am innocent” or “The deposition is false”; but an opportunity must be afforded to the accused to answer any question or respond to any incriminating evidence against him. It is possible that an accused may set up an alibi or say something more than merely denying an assertion. 26. It is necessary, in such context, for more questions to be asked to the accused or simpler questions being put, rather than clubbing the entire testimony of a witness and confronting the accused with the same. That does not imply that every sentence uttered by a prosecution witness has to be placed before the accused for his response; but only that the essence of the evidence must be pointed out to the accused and the accused afforded a meaningful opportunity to comment thereon. Judicial officers conducting criminal trial should be mindful of this in course of the examination conducted under Section 313 of the Code. 27. Judicial officers conducting criminal trial should be mindful of this in course of the examination conducted under Section 313 of the Code. 27. We request the Registrar (Judicial Service) attached to this court to communicate our observations in paragraphs 18 to 27 of this judgment to all judicial officers conducting criminal trials and to the Director and Inspector General of Police West Bengal for the same to be circulated to all police stations of the State and brought to the notice of police officers who conduct criminal investigation. 28. Urgent certified website copies of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.