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2017 DIGILAW 602 (CAL)

Shankar Mahato v. State of West Bengal

2017-07-10

ASHA ARORA, RAKESH TIWARI

body2017
JUDGMENT : Asha Arora, J 1. These two appeals at the instance of the accused/ appellant have been directed against the judgement and order of conviction and sentence dated 27th August, 2002 and 28th August, 2002 passed by the learned Sessions Judge, VIIIth Bench, City Sessions Court at Calcutta in Sessions Trial No. 1 of 2001 arising out of Sessions Case No. 41 of 2000 whereby the accused/appellant was convicted for the offence punishable under section 302 of the Indian Penal Code (hereinafter C.R.A. 599 of 2009 referred to as the I.P.C.) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default of which to suffer rigorous imprisonment for six months for the aforesaid offence. Prosecution case, bereft of unnecessary details is as follows : On 8th December, 1999 at about 15.30 hours one Shankar Mahato of Lakarigola at 4, Garden Reach Road, stabbed Nand Kishore Mahato, brother of the de facto complainant with a dagger. Consequently the victim sustained severe injuries on his abdomen and right elbow joint. He was rushed to the hospital where he was declared dead. On the basis of the statement of the de facto complainant Jaikishan Mahato, recorded by S.I. Prakash Bantawa (P.W.5), South Port P.S. Case No. 401 dated 8th December, 1999 was initiated against the accused/ appellant under section 302 I.P.C. Investigation into the case culminated in the submission of the charge-sheet under section 302 I.P.C. against the accused/appellant. 2. The trial Court framed charge for the offence punishable under section 302 I.P.C. against the accused/appellant. Being so arraigned, the accused pleaded not guilty to the indictment and claimed to be tried. During the trial prosecution examined 15 witnesses and exhibited several documents. 3. Defence version in short is innocence and outright denial of the prosecution story. 4. After the conclusion of trial the learned Sessions Judge, VIII Bench, City Sessions Court at Calcutta convicted the accused/appellant for the offence punishable under section 302 I.P.C. and sentenced him as aforesaid. 5. The point for determination is whether the conviction and sentence of the appellant for the offence punishable under section 302 I.P.C. is sustainable. 6. Castigating the prosecution case on multifarious counts, Mr. 5. The point for determination is whether the conviction and sentence of the appellant for the offence punishable under section 302 I.P.C. is sustainable. 6. Castigating the prosecution case on multifarious counts, Mr. Bhattacharya, learned counsel appearing as amicus curiae sought to impress upon us that the place of occurrence has not been mentioned anywhere in the F.I.R. (exhibit 1) or in the charge framed against the accused. Referring to exhibit 5 which is the sketch map, learned amicus curiae contended that the place of occurrence is not inside the 'katgola' as testified by the witnesses but on the road. It has also been canvassed that the evidence of the four witnesses namely, P.W.1, P.W.2, P.W.3 and P.W.4 sought to be projected as the ocular witnesses cannot be relied upon as none of them were present at the time of the incident. Mr. Bhattacharya urged that P.W.1, P.W.2 and P.W.3 being related to the victim are interested witnesses. It has strenuously been argued that the investigation commenced prior to lodging of the F.I.R. as is evident from the testimony of P.W.5 who ought to have held inquest since he took up the investigation initially on the basis of the complaint of P.W.3 Dohra Mahato whose name does not figure in the FIR or in the evidence of P.W. 1 and P.W.2, It has further been argued that the weapon of offence was recovered ten days after recording the statement of the accused. Our attention has also been drawn to the fact that the seized weapon of offence was not shown to the autopsy surgeon during his evidence to enable him to opine whether the injuries could be caused by such a weapon. 7. Repudiating the aforesaid submissions, learned counsel for the State countered that the place of occurrence is the 'katgola' at 4, Garden Reach Road, as is evident from the F.I.R. as well as from the evidence of the witnesses and the sketch map (exhibit 5). Placing reliance upon the case of Surajil Sarkar v. State of West Bengal, reported in AIR 2013 SC 807 (paragraph 53), learned counsel for the State argued that defects in investigation cannot be the sole ground for rejection of the prosecution case. Placing reliance upon the case of Surajil Sarkar v. State of West Bengal, reported in AIR 2013 SC 807 (paragraph 53), learned counsel for the State argued that defects in investigation cannot be the sole ground for rejection of the prosecution case. Reference has also been made to the case of Israr v. State of Uttar Pradesh reported in AIR 2005 SC 249 in support of the submission that relationship is not a factor to affect the credibility of a witness. It has further been argued that the mere fact that P.W. 1, P.W.2 and P.W.3 are related to the deceased cannot be a ground to disbelieve their evidence. 8. A bare perusal of the FIR reveals that the place of occurrence as mentioned therein is at 4, Garden Reach Road. The relevant portion of the FIR is quoted as follows: "Today (8.12.99) at about 15.25/15.30 hrs. one Shankar Mahato aged about 35/36 years S/o Darnesh Mahato of Lakarigola at 4 G.R. Road all on a sudden stabbed my brother Nand Kishore Mahato on his upper abdomen and on his right elbow joint by means of a dagger causing a deep injury on his abdomen and a gaping wound at his right elbow joint............." In the charge framed against the accused the place of occurrence has been mentioned as "on Garden Reach Road". Non-mention of the exact place of occurrence in the charge is of no consequence unless it is shown that the accused was misled by such error or omission and it has occasioned a failure of justice. The relevant provisions in the Code of Criminal Procedure dealing with the effect of such an omission in the charge are section 215 and section 464 Cr.P.C. Section 215 Cr.P.C. reads as follows: "no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." Section 464(1) Cr.P.C. provides as follows: "464. Effect of omission to frame, or absence of, or error in, charge.-(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charge, unless, " in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby." In the present case there is nothing on record to show that the accused appellant was in fact misled or prejudiced on account of omission to mention the exact place of occurrence. The prosecution witnesses were cross-examined extensively which shows that the accused clearly understood the details of the charge against him. The fact that the accused defended himself by cross examining the prosecution witnesses goes to show that he was fully aware of the details of the charge against him including the actual place where the incident occurred. Therefore the argument on this score is devoid of merit. 9. In their evidence P.W.1, P.W.2, P.W.3 and P.W.4 have stated unequivocally in the same voice that the incident occurred in the 'Katgola' at Panbazar, Garden Reach Road. In the sketch map (exhibit 5) the place of occurrence has been indicated in the immediate vicinity of the 'Katgola' and not on the road as the learned amicus curiae sought to impress upon us. At this juncture it is pertinent to mention that it was not suggested to any of the ocular witnesses or to the Investigating Officer in cross-examination that the incident occurred on the road and not in the 'katgola'. In fact, from the tenor of cross-examination of the prosecution witnesses it is evident that no such dispute was raised on behalf of the accused regarding the place of occurrence. 10. Coming to the evidence of the four ocular witnesses namely, P.W.I Jaikishan Mahato, P.W.2 Birender Mahato, P.W.3 Dohra Mahato and P.W.4 Matilal Rai. It is true that P.W.I, P.W.2 and P.W.3 are related to the deceased but on this count their evidence cannot be discarded as untrustworthy. If a witness is found to be reliable his evidence cannot be thrown out by branding him as an interested witness related to the deceased. It is true that P.W.I, P.W.2 and P.W.3 are related to the deceased but on this count their evidence cannot be discarded as untrustworthy. If a witness is found to be reliable his evidence cannot be thrown out by branding him as an interested witness related to the deceased. The Apex Court has time and again reiterated that relationship is not a ground to reject the evidence of a witness who is otherwise found to be truthful and trustworthy. On the contrary, a close relative of the deceased would normally be most reluctant to spare the real murderer and falsely implicate an innocent person. In the given facts of the present case P.W.1, P.W.2 and P.W.3 though related to the deceased are but natural witnesses whose presence at the place of occurrence at the time of the incident cannot be doubted. Nothing could be brought on record during the cross-examination of these witnesses to show that they had an axe to grind against the accused for falsely implicating him. Nothing could be elicited in the cross-examination of these witnesses to show that they were inimical to the accused. In short, no motive could be attributed to these witnesses for deposing falsely against the accused/ appellant. P.W.I, P.W.2 and P.W.3 have consistently deposed that on the date of the incident the accused Shankar Mahato stabbed the victim Nand Kishore Mahato with a dagger. It would be profitable to quote the relevant portion of the evidence of P.W.I who testified regarding the incident in the following manner: "On 8.12.99 at about 3-30 p.m. one Nand Kishore Mahato was standing in his Katgola at Panbazar. Suddenly the accused Sankar Mahato came to the P.O. and all on a sudden assaulted Nand Kishore Mahato with a dagger on his abdomen. The said Nand Kishore Mahato was my brother. He was standing there. I along with Birendra Mahato took the victim to the P.G. Hospital by a taxi. Doctor of the hospital told us that the victim had died." P.W.2 and P.W.3 narrated the incident in the same manner and corroborated the version of P.W.I. Curiously enough, no suggestion was given to any of these three witnesses during their cross-examination disputing the factum of their presence at the place of occurrence at the time of incident. Doctor of the hospital told us that the victim had died." P.W.2 and P.W.3 narrated the incident in the same manner and corroborated the version of P.W.I. Curiously enough, no suggestion was given to any of these three witnesses during their cross-examination disputing the factum of their presence at the place of occurrence at the time of incident. Nothing could be elicited in the cross-examination of any of these witnesses to discredit their sworn version of the incident. The name of P.W.2 Birender Mahato figures in the FIR which was lodged without inordinate delay on the date of the incident. It is further evident from the FIR that apart from Birender Mahato (P.W.2), some other people were also present at the place of occurrence at the relevant time. The fact that the name of Dohra Mahato (P.W.3) has not been specifically spelt out in the FIR does not falsify his evidence or render his presence at the time of the incident unbelievable. It is well settled that the FIR need not contain an exhaustive account of the incident. It is certainly not the requirement of law to mention every minute detail in the FIR. The evidence of the three ocular witnesses though related to the deceased, inspires confidence for the reasons aforesaid. 11. P.W.4 Matilal Rai is an independent witness having no interest in deposing falsely against the accused/appellant. He has corroborated the evidence of the other ocular witnesses regarding the incident. P.W.4 testified in his evidence that on 8.12.99 at about 3-30 p.m. when he was lifting firewood from the 'Katgola' where he was employed, accused Shankar Mahato came with a dagger and struck Nand Kishore on his abdomen whereafter he fled away. P.W.4 deposed spontaneously without any exaggeration. Nothing has surfaced in his cross-examination to discredit his narration of the incident. No motive could be attributed to P.W.4 for deposing falsely against the accused or falsely implicating him. We find no reason to disbelieve the evidence of P.W.4. 12. In his evidence P.W.5 Sub Inspector Prakash Bantawa has testified that on 8.12.99 when he was on duty at South Port Police Station, at about 4-00 p.m. one Dohra Mahato (P.W.3) came to him and reported that at the firewood godown at premises No. 4 Garden Reach Road one Shankar Mahato stabbed one Nand Kishore Mahato and the said victim was taken to hospital. Accordingly, P.W.5 diarised the matter and went to S.S.K.M. Hospital where he came to know that the victim was declared brought dead. Thereafter P.W.5 went to the place of occurrence and made seizure. The fact that investigation commenced prior to lodging the FIR and starting the case does not make the prosecution version doubtful. It is evident from the testimony of P.W.5 that on the basis of the statement made by P.W.I the FIR was drawn up by him. The FIR (exhibit 1) was recorded by P.W.5 himself on the basis of the aforesaid statement of P.W.I whereafter its contents were read over and explained to the de facto complainant. This fact is clear from the endorsement of P.W.5 below the concluding part of the FIR (exhibit 1) which reads thus: "Recorded by me, read over, explained and admitted to be correct". There is therefore no substance in the submission that the FIR cannot be relied upon since it was recorded by the Police Officer who held investigation. It is significant to mention that no suggestion was given to P.W.1 or to P.W.5 in cross-examination assailing the FIR as a fabricated document. 13. Equally unacceptable is the argument that recovery of the weapon of offence pursuant to the statement of the accused is doubtful since the said recovery was made ten days after recording the statement. Exhibit 9 is the relevant portion of the statement of the accused recorded by P.W.15 pursuant to which the weapon of offence (mat. ext. III) was recovered and seized by a seizure list dated 7.3.2000 (exhibit 4). The aforesaid statement of the accused has been mentioned as "further statement of Shankar Mahato". The date below the signature of the recording officer (P.W.15) is 7.3.2000. It is evident from the "further statement of Shankar Mahato" that prior to this statement dated 7.3.2000, on 26.2.2000 the accused" made a statement before the Investigating Officer. It is also clear from exhibit 9 read with exhibit 4 that the recovery of the weapon of offence was made pursuant to the disclosure in the relevant portion of the further statement of the accused dated 7.3.2000 and not 26.2.2000 as the learned amicus curiae sought to impress. Significantly, P.W.15 was not cross-examined in this regard. It is also clear from exhibit 9 read with exhibit 4 that the recovery of the weapon of offence was made pursuant to the disclosure in the relevant portion of the further statement of the accused dated 7.3.2000 and not 26.2.2000 as the learned amicus curiae sought to impress. Significantly, P.W.15 was not cross-examined in this regard. The evidence of P.W.15 on the point of recovery of the weapon of offence at the instance of the accused finds complete corroboration by the two independent local witnesses namely, P.W.8 Anil Kumar Singh and P.W.13 Naorang Rai. Nothing could be elicited in the cross-examination of these two seizure witnesses to discredit their evidence regarding recovery and seizure of the weapon of offence in their presence. 14. Regarding lapses in investigation as pointed out by the learned amicus curiae, the law on this issue is well settled that defective investigation cannot be a ground for acquittal of the accused where there is credible, unimpeachable and trustworthy evidence in support of the prosecution case. If primacy is given to designed or negligent investigation or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. In C. Muniappan v. State of Tamil Nadu reported in (2010)9 SCC 567 the Apex Court held that where there has been negligence on the part of the investigating agency or omissions which resulted in defective investigation, there is legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether such evidence is reliable or not and as to whether such lapses affect the object of finding out the truth. In the present case, we have trustworthy and credible evidence of the ocular witnesses who have substantiated convincingly the prosecution version. 15. The medical evidence of the autopsy surgeon, Dr. P.B. Das (P.W.14) is in complete conformity with the ocular evidence regarding the homicidal death of the victim caused due to abdominal injuries by a sharp cutting weapon like dagger. The medical officer who held post- mortem examination categorically opined in his evidence that death was caused due to the effect of the abdominal injuries ante-mortem and homicidal in nature. According to P.W.14 such abdominal injuries may have been caused by sharp cutting weapon like dagger, knife or sword. The medical officer who held post- mortem examination categorically opined in his evidence that death was caused due to the effect of the abdominal injuries ante-mortem and homicidal in nature. According to P.W.14 such abdominal injuries may have been caused by sharp cutting weapon like dagger, knife or sword. The evidence of P.W.14 regarding the homicidal death of deceased, nature of injuries and the weapon of assault remained virtually unassailed in cross-examination. Therefore the argument that the weapon of offence was not shown to the doctor who held post-mortem examination is of no avail. 16. Learned amicus curiae, referring to the evidence of P.W.15 S.I. Amit Sankar Mukherjee pointed out that this witness stated in his evidence that he arrested the accused on 25.2.2001. So how could the recovery of the weapon of offence pursuant to the statement of the accused be made on 7.3.2000. On this issue the relevant document to be looked into is the memo of arrest of the accused which clearly mentions the date of his arrest as 25.2.2000. It is evident that in the deposition of P.W.15 the date of arrest of the accused has erroneously been mentioned as 25.2.2001 instead of 25.2.2000. This fact finds support from the order sheet of the lower Court records of the Chief Metropolitan Magistrate which shows that the accused was produced in Court in connection with this case on 26.2.2000. 17. In the ultimate analysis, for the reasons discussed, we are of the firm view that no interference is warranted with the impugned judgment and order of conviction and sentence. 18. Consequently both the appeals are dismissed. 19. The appellant who is on bail shall surrender before the trial court within a fortnight from date to serve out his sentence in default of which the trial court shall take appropriate steps for execution of the sentence in accordance with law. A copy of this judgment along with the lower court records be sent immediately to the trial Court for intimation and necessary action. Urgent photostat certified copy of this judgment, if applied for, shall be made available to the applicant upon compliance of requisite formalities.