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2019 DIGILAW 183 (CAL)

Janata Hembram v. State of West Bengal

2019-02-06

JAY SENGUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Jay Sengupta, J. This appeal is directed against the judgment and order of conviction dated 28.07.2008 and sentence dated 29.07.2008 passed by the Learned Additional Sessions Judge, 5th Fast Track Court, Malda in ST No. 22 (6) 07: SC No. 78/05, thereby convicting the three appellants under Sections 302, 201, 120B, 34 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/-, in default to suffer simple imprisonment for three months for the offence under Section 302 of the Penal Code and to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for two months for the offence under Section 201 of the Penal Code, both the sentences having to run concurrently, while no separate sentence was passed for the offence under Section 120B of the Penal Code. 2. On 04.03.2005 at about 10:05 hours, PW 1, a Gram Panchayat member lodged a First Information Report under Sections 302, 201, 120B, 34 of the Penal Code alleging that the present appellants had committed murder of the victim Sumi Tudu. It was alleged that on 04.03.2005 at about 3:00 hours the appellant no. 1 Janata Hembram called PW 1 from his sleep and confessed that last evening he had murdered his aunt Sumi Tudu with an axe. Tala Hembram and Charka Murmu, who were not examined as witnesses in this case, also came with him and the appellant no. 1 narrated the incident to them as well. On enquiry the appellant no. 1 said that his wife Dipali Hansda, the appellant no. 2 had been suffering from epilepsy for a few days. The couple had no issue despite getting married 6/7 years back. The appellant no. 1 had suspected that the victim Sumi Tudu was responsible for this as a 'fuskin'. He told this to Tala Hembram, the second son of the victim i.e., the appellant no. 3. The appellant no. 3 told the appellant no. 1 that the latter could kill the victim if possible and the former would be by his side. Being assisted by and in conspiracy with each other the appellants jointly murdered the victim. In the morning the appellant no. 1 again confessed his guilt at the spot in front of the everybody. The appellant no. 3 told the appellant no. 1 that the latter could kill the victim if possible and the former would be by his side. Being assisted by and in conspiracy with each other the appellants jointly murdered the victim. In the morning the appellant no. 1 again confessed his guilt at the spot in front of the everybody. After this, the de facto complainant and others detained the three appellants and handed them over to police. It was reported that the axe was thrown away towards a small ditch situated at the back of PW 15's house. 3. Investigation commenced. On 04.03.2005 at about 10:45 hours PW 16, the Investigating Officer held an inquest over the dead body of the victim in presence of the witnesses PWs 1, 3, 6, 12 and 14. The head of the victim was found smashed and the face completely deformed. The preliminary investigation supported the allegations in the First Information Report about the appellant no. 2 suffering from epilepsy, the couple being childless and the tacit support of the appellant no. 3 for any attempt by the appellant no. 1 to finish off the victim. It was further revealed that on 03.03.2005 at about 22:00 hours when the victim/deceased was in an intoxicated state, then the appellant nos. 1 and 2 attacked the deceased and the appellant no. 1 landed blows on the head of the victim with a long handled axe repeatedly. As a result, the victim's head was completely smashed and she died on spot. On that night the appellant no. 1 confessed his offences before several villagers. PW 8, a doctor conducted a post-mortem examination of the dead body on 04.03.2005 at about 14:05 hours. At least seven injuries were found on the dead body. Assault was by hard and blunt objects, by hard and heavy sharp cutting instruments. After completion of investigation, a charge-sheet was submitted against all the accused under Sections 302, 201, 120B, 34 of the Penal Code. 4. On 30.06.2007, charges were framed against the present appellants under Section 302 read with Section 34 of the Penal Code and under Section 201 read with Section 34 of the Penal Code and under Sections 120B and 34 of the Penal Code. The prosecution examined as many as 16 witnesses to bring home the charges. 4. On 30.06.2007, charges were framed against the present appellants under Section 302 read with Section 34 of the Penal Code and under Section 201 read with Section 34 of the Penal Code and under Sections 120B and 34 of the Penal Code. The prosecution examined as many as 16 witnesses to bring home the charges. But, the defence case seemed to be mainly a denial of the prosecution case. 5. On a careful perusal of the evidence on record, it appears that PW 1, a Gram Panchayat member, was the informant in this case. He supported the First Information Report earlier lodged by him. He further deposed that the appellant no. 1 disclosed to him that after committing the murder of the victim, he dropped the axe in a 'doba' behind the house of one Gupin Hembram (PW 15) and the said axe was recovered by the police from there as per the statement and identification of the appellant no. 1. The First Information Report was scribed by PW 3 as per his instruction. He also signed on the seizure list for the axe and for the blood-stained earth from the spot where the dead body was found. He also put a signature on the label affixed on the seized axe. He was also a witness to the inquest over the dead body. In his cross-examination, PW 1 stated that besides him, PWs 2 and 3 put their signatures on the seizure list in respect of the axe. He stated that the distance between his house and the house of the appellant no. 1 is half a kilometre. PW 2 was a co-villager of the appellant and the wife of PW 3. She deposed that PW 1 came to their house and disclosed that the appellant no. 1 had murdered the victim as no child had been born of the wedlock between the appellant no. 1 and his wife. She then went to the house of appellant no. 1 and on her asking, the appellant no. 1 disclosed that he had murdered the victim with an axe. The appellant no. 1 also told her that he had been suspecting the victim to be a witch responsible for the non-delivery of child. He made this confession in presence of many others in the village. The appellant no. 1 had disclosed that the appellant no. 1 disclosed that he had murdered the victim with an axe. The appellant no. 1 also told her that he had been suspecting the victim to be a witch responsible for the non-delivery of child. He made this confession in presence of many others in the village. The appellant no. 1 had disclosed that the appellant no. 3 was with him at the time of murder. He disclosed that he had dropped the axe in the 'doba' behind the house of PW 15. Police seized the axe in her presence and she put her signature on the seizure list. She admitted that the label on the seized axe did not bear her signature. PW 3 was a co-villager of the appellant and the husband of PW 2. On 3/4 March 2005 PW 1 came to their house and reported to him that the victim had been murdered by the appellant nos. 1 and 2. PW 3 advised PW 1 to confine those persons with the assurance that he would report the matter to the police. On the next morning, PW 3 went to the place of occurrence and found the dead body of the victim with her head severely damaged. The appellant no. 1 confessed in presence of villagers at that spot that he had murdered the victim by hitting her with an axe. On his asking, the appellant no. 1 confessed that the appellant no. 2 was also with him and she had caught hold of the victim. He was a signatory to the inquest report and to the seizure list for the seizure of blood-stained earth. He also signed on the label affixed on the axe. In his cross-examination, PW 3 admitted that he had earlier informed the police over telephone about the incident from the house of one Majidur Rahaman. He had also told the police that the appellant no. 1 had confessed that he had murdered the victim and that his wife had caught hold of the victim at the time of murder. PW 4 was a co-villager and a previous member of the Gram Panchayat. He deposed that in the night at about 12/1 a.m. the appellant no. 1 came to his house and disclosed that he had murdered the victim. He then asked him to go to PW 3 and tell him about the incident. PW 4 was a co-villager and a previous member of the Gram Panchayat. He deposed that in the night at about 12/1 a.m. the appellant no. 1 came to his house and disclosed that he had murdered the victim. He then asked him to go to PW 3 and tell him about the incident. PW 5 was a co-villager of the appellant and the wife of PW 1. She deposed that the appellant no. 1, Tala Hembram and Churka Kisku came to her husband after commission of the murder. The appellant no. 1 told PW 1 that he had murdered the victim and then sought his advice. PW 6 was a co-villager of the victim. He was a witness to the inquest. PW 7 was a co-villager who was a post-occurrence witness. He saw the dead body and found the head of the victim separated from the remaining portion of the body. PW 8 was the doctor who conducted the post-mortem examination over the dead body of the victim on 04.03.2005. He found several injuries on the face and head and fractures of skull and facial bone, among others. He opined that some of the injuries were caused by hard and blunt object and some by hard and heavy sharp cutting instrument. He also opined that the injuries were sufficient to cause death in the ordinary course of nature. In his cross, PW 8 stated that three injuries were caused by hard and blunt object and the rest of the injuries were caused by hard and sharp cutting weapon. PW 9 was another co-villager of the appellant. He was declared hostile. PW 10 was a grand-child of the victim. She too turned hostile. PW 11, another co-villager, did not depose much. PW 12 only deposed that he was a signatory to the inquest. PW 13, another co-villager, also did not say much. PW 14 was a police constable. He was a signatory to the inquest. He was also a seizure list witness for the seizure of axe. PW 15 was the owner of the house by the side of which there was a 'doba'. He was declared hostile. PW 16 was the Investigating Officer of the case. He deposed that the appellant no. 1 had confessed about his guilt before him and also implicated the appellant nos. 2 and 3 in the crime. PW 15 was the owner of the house by the side of which there was a 'doba'. He was declared hostile. PW 16 was the Investigating Officer of the case. He deposed that the appellant no. 1 had confessed about his guilt before him and also implicated the appellant nos. 2 and 3 in the crime. He stated that leading to the confessional statement of the appellant no. 1, the offending axe was recovered from a pond. 6. Mr. P. S. Bhattacharyya, the learned Advocate appearing on behalf of the appellant, strongly opposed the judgment and order of conviction and sentence passed against the appellants. He submitted that the prosecution case is based purely on circumstantial evidence, but the chain of circumstances pointing towards the guilt of the appellants was not complete. According to him, the conviction is based mainly on the extrajudicial confession made by the appellant no 1, which is itself a very weak piece of evidence. The Learned Advocate submitted that the best evidence was not produced in this case in as much as the GD Entry purportedly recorded on a telephonic information was not produced. According to him, the First Information Report is actually a second information as the first telephonic information must not have been a cryptic one. This raised a suspicion about false implication of the appellants. He submitted that in this case although the inquest preceded the First Information Report, yet the police case number strangely found a place in the inquest report. That PW 4 had sent the appellant no. 1 to PW 1 did not find a mention in the First Information Report. He submitted that there are major contradictions in the depositions of PWs 1 to 4 regarding the alleged extra-judicial confession made by the appellant no. 1. While the First Information Report and the depositions of PWs 1, 2 and 3 all indicate that all the appellants were responsible for the murder as per the extra-judicial confession made by the appellant no. 1, according to the version given by PW 4, the extra-judicial confession made by the appellant no. 1 only implicated the appellant no. 1 himself. The learned Advocate further submitted that PW 3 did not tell the police about any motive for murdering the victim. The blood-stained earth seized was not sent for chemical examination. 1, according to the version given by PW 4, the extra-judicial confession made by the appellant no. 1 only implicated the appellant no. 1 himself. The learned Advocate further submitted that PW 3 did not tell the police about any motive for murdering the victim. The blood-stained earth seized was not sent for chemical examination. As per the Learned Advocate, the Investigating Officer could not have got the case number on the seizure list for the axe as the seizure was done between 10:15 and 10:40 hours. He submitted that no statement of the accused under Section 27 of the Evidence Act was exhibited. The Learned Advocate relied on Superintendent of Police, CBI versus Tapan Kumar Bose, (2003) AIR SC 4140 on the point that a GD Entry can be treated as First Information Report if a cognizable offence is made out. On the question whether a telephonic information to the police station can be treated as a First Information Report, he relied on Sunil Kumar versus State of Madhya Pradesh, (1997) AIR SC 940. He also relied on Bhajanlal s Case,1993 AIR SC 604 on the ratio that if a cognizable offence is informed to the police, a First Information Report has to be recorded. 7. Mr. Partha Pratim Das, the Learned Advocate appearing on behalf of the State strongly supported the conviction and sentence imposed upon the appellants. He submitted that besides the extra-judicial confession, there were several circumstances appearing against the appellants and lending support to the extra-judicial confession given by the appellant no. 1. He submitted that it is of prime importance that the dead body of the victim was found in the courtyard in between the houses of the appellant nos. 1 and 3. The death was found to be homicidal with gruesome multiple injuries. The axe recovered as the offending weapon upon being shown by the appellant no. 1 matched with the medical evidence adduced that one side of the weapon could be sharp and the other side blunt. Significantly, the recovery of the weapon was at the instance of the appellant no. 1. The other strong circumstance pointing towards the guilt of the appellants especially that of the appellant no. 1, was the motive behind the murder. The appellant no. 1 confessed that he and his wife the appellant no. Significantly, the recovery of the weapon was at the instance of the appellant no. 1. The other strong circumstance pointing towards the guilt of the appellants especially that of the appellant no. 1, was the motive behind the murder. The appellant no. 1 confessed that he and his wife the appellant no. 2 thought that the victim was a witch and because of her, the couple could not have a child. The appellant no. 3 too consented to any such act to finish off the victim. According to the Learned Advocate, as per Section 106 of the Evidence Act since the body was recovered from the courtyard of the appellants, they were to explain as to how the murder was committed. In fact, the extra-judicial confession made by the appellant no. 1 may very well be act as an explanation for the entire sequence of events. The Learned Advocate submitted that the subsequent retraction of the extra-judicial confession made by the appellant no. 1 does not help him at all. It is clear that there was no compulsion on the appellant no. 1 to make such confession. The time of confession is the guarantee of his voluntariness. The Learned Advocate submitted that there were indeed some defects in the investigation of the case, but these were not so material as to affect the fate of a case. According to him, the non-production of the GD Entry in question did not prejudice the accused. After all, PW 16 gave out the subject matter of the GD Entry as the same as that of the First Information Report. Moreover, even if a recovery is made before the lodging of the formal FIR, the recovery would nevertheless be admissible in evidence under Section 8 of the Evidence Act even if it is not admissible under Section 27 of the Evidence Act. In his usual fairness, the Learned Advocate admitted that so far as the appellants 2 and 3 concerned, there is no corroborative evidence in support of the statement of a co-accused made in this case implicating them. 8. We heard the submissions of the Learned Advocate appearing on behalf of the appellants and the State and carefully perused the evidence adduced in this case along with the other materials on record. 9. Motive behind the commission of an offence assumes a heightened degree of importance in a case based on circumstantial evidence. 8. We heard the submissions of the Learned Advocate appearing on behalf of the appellants and the State and carefully perused the evidence adduced in this case along with the other materials on record. 9. Motive behind the commission of an offence assumes a heightened degree of importance in a case based on circumstantial evidence. From the extra-judicial confession made by the appellant no. 1 before witnesses like PWs 1, 2, 3, 4 and 5, it appears that the appellant nos. 1 and 2 were suspecting that the victim was a witch and that because of her, the couple could not conceive. This, according to the extra-judicial confession made by the appellant no. 1, was the reason why the victim was done away with. But, it is not clear from evidence what motive the appellant no. 3 might have had for giving consent to the murder of the victim, his own mother. 10. Like in several other cases, here too the police was intimated over telephone first. But, a formal FIR was lodged sometime later and it contained all the details about the alleged crime. It is true that even a telephonic information about the commission of a cognizable offence, if found cogent and not cryptic, may be treated as a First Information Report. At the same time there is no harm if a more detailed written information, given soon thereafter by a person aware of the relevant facts, is treated as a First Information Report. Afterall, the purpose of lodging a First Information Report is to set criminal law in motion. Moreover, in the present case, there is no evidence on record to suggest that someone might have been interested in falsely implicating the appellants. The decisions relied on behalf of the appellants lay down established principles of law in this regard, but do not help the cause of the appellants for the foregoing reasons. 11. It appears from evidence that sometime after the commission of murder of the victim, the appellant no. 1 first went to PW 4, a co-villager and a former member of the Gram Panchayat and disclosed the fact that he had murdered the victim. This was at about 12/1:00 in the night. PW 4 deposed that he then asked the appellant no. 1 to go to PW 3 and tell him about the incident. 1 first went to PW 4, a co-villager and a former member of the Gram Panchayat and disclosed the fact that he had murdered the victim. This was at about 12/1:00 in the night. PW 4 deposed that he then asked the appellant no. 1 to go to PW 3 and tell him about the incident. PW 1 deposed that on 04.03.2005 at about 3:00 hours, the appellant no. 1 came to him with two others namely, Tala Hembram and Churka Murmu. He confessed before PW 1 that last evening he had murdered his aunt Sumi Tudu, the victim, with an axe. On enquiry the appellant no. 1 further told him that his wife, the appellant no. 2, had been suffering from epilepsy for a few days and that the couple could not have any issue in spite of a married life of 6 or 7 years. The appellant no. 1 confessed that he suspected that the victim was a witch and was responsible for this. The victim's second son gave his consent for the murder of the victim. He further confessed that being assisted by and in conspiracy with each other, the appellants jointly murdered the victim. PW 1 further deposed that the appellant no. 1 had told him that after committing the murder, he dropped the offending axe in a 'doba' behind the house of PW 15. Thereafter, PW 1 went to the house of PW 3, a Gram Panchayat member and reported to him that the victim had been murdered by the appellants 1 and 2. PW 3 advised PW 1 to confine those persons with the assurance that he would report the matter to the police. PW 3 corroborated these facts. PW 2, who was the wife of PW 3 too corroborated the fact that PW 1 had come to their house and disclosed about the events. PW 2 further deposed that thereafter, she went to the house of the appellant no. 1 and upon her asking, the appellant no. 1 once again confessed of killing the victim with an axe and even mentioned his motive for doing so. In the early next morning, PW 3 went to the spot and found the dead body of the victim with her head severely damaged. PW 3 deposed that in the presence of several villagers at the spot, the appellant no. 1 once again confessed of killing the victim with an axe and even mentioned his motive for doing so. In the early next morning, PW 3 went to the spot and found the dead body of the victim with her head severely damaged. PW 3 deposed that in the presence of several villagers at the spot, the appellant no. 1 again confessed of murdering the victim with an axe. Therefore, in this case there are several independent witnesses who deposed that the appellant no. 1 had confessed about murdering the victim with an axe. Except for PW 4, all the other witnesses to the extra-judicial confession deposed that the appellant no. 1 had also implicated the other two appellants. The evidence regarding the appellant no. 1's extra-judicial confession appears to be quite consistent. Although the exact words used, while making the extra-judicial confession, had not been mentioned, the contents of such statement appeared to tally with the statement made by the relevant witnesses. Although an extra-judicial confession per se is not a very strong piece of evidence, but if the same is found credible and is corroborated by other evidence, then the same can very well lead to a conviction. 12. Pw 16, the Investigating Officer of the case deposed that the appellant no. 1 had confessed about his guilt and also implicated the appellant nos. 2 and 3 in the commission of the offences. He stated that leading to the confessional statement of the appellant no. 1, the offending axe was recovered from a pond beside the house of PW 15. Although PW 15 was declared hostile, there are quite a few witnesses to the seizure of the axe like PWs 1, 2, 3 who supported the seizure. No statement of the accused leading to the recovery of the axe seems to have been exhibited in the case. The rigours of Section 27 of the Evidence Act might not have been fulfilled in this regard, but the recovery of the offending weapon will nevertheless be admissible in view of Section 8 of the Evidence Act. 13. The medical evidence, as adduced in this case, supports the prosecution case in good measure. 14. As discussed above, the extra-judicial confession made by the appellant no. 1, especially before numerous independent witnesses, appear to be quite convincing. But, this is not the only circumstance that appears against the appellant no. 1. 13. The medical evidence, as adduced in this case, supports the prosecution case in good measure. 14. As discussed above, the extra-judicial confession made by the appellant no. 1, especially before numerous independent witnesses, appear to be quite convincing. But, this is not the only circumstance that appears against the appellant no. 1. Besides motive, the most important other aspect is the recovery of the offending weapon at the instance of the appellant no. 1, as per Section 8 of the Evidence Act. Therefore, the chain of circumstances unerringly point towards the guilt of the appellant no. 1. 15. So far as the other appellants are concerned, apart from the extrajudicial confession by a co-accused implicating both the accused and the motive to murder vis-a-vis' the appellant no. 2, that too as admitted by the co-accused in his extra-judicial confession, there is no other cogent and convincing material to connect them with the commission of the offence. In view of the same, it will be unsafe to convict the appellant nos. 2 and 3 and they are entitled to a benefit of doubt. 16. Accordingly, we hereby modify the impugned judgment and order and convict the appellant no. 1 under Section 302 of the Penal Code and sentence him to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/-, in default to suffer simple imprisonment for 3 months and convict him under Section 201 of the Penal Code and sentence him to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for 2 months, both the sentences having to run concurrently. However, we set aside the impugned judgment and order so far as the appellant nos. 2 and 3 are concerned and acquit them of all charges. The appeal is, thus, allowed in part. 17. A copy of the judgment along with the Lower Court records may be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 18. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. Md. Mumtaz Khan, J. - I agree.