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2019 DIGILAW 673 (CAL)

Rabi Das @ Sachhu v. State of West Bengal

2019-06-28

MD.MUMTAZ KHAN, TIRTHANKAR GHOSH

body2019
JUDGMENT : Md. Mumtaz Khan, J. 1. This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated February 14, 2012 and February 15, 2012 respectively passed by the learned Additional Sessions Judge, Fast Track Court-3, Barrack pore, North 24 Parganas in Sessions Trial Case No. 70 (12), 2007 arising out of Sessions Case No. 7 (8) of 2007 thereby convicting the appellant for the commission of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced him to suffer imprisonment for life and to pay fine of Rs. 10,000/- in default to suffer imprisonment for one year more. 2. The case of the prosecution, in brief, is as follows: On May 14, 2007 at 17.00 hours, one telephonic information was received at the Naihati P.S. from one unknown person that Rabi Das @ Sachhu (appellant) has committed murder of Tapan Karmakar (victim) at Sanjib Chatterjee Road and he was detained by the local people of Milan Samiti Club. The said information was diarized in the P.S. GDE Book and the Inspector-in- Charge was informed. P.W.16 along with force went to the place of occurrence. There P.W.1 handed over one written complaint(Ext.1) to I.C. Naihati P.S. stating inter alia that on that day in the evening at about 16.45 hours while he was sitting in his house on the first floor he heard some hue and cry on the road in front of his house. He then came down and saw appellant, holding one 'Nepala' in his hand, was quarreling with the victim in front of tea stall of Sanjoy Agarwal over an old topic and then suddenly struck the victim with that 'Nepala' as a result victim sustained severe injuries on his person and died on the spot. Members of the Milan Samiti Club then caught hold the appellant and detained him in the club. On receipt of the complaint, I.C. Naihati P.S., endorsed the case to P.W.16 for investigation and sent the complaint to the P.S. for starting the case. Naihati P.S. Case No. 85 dated 14.05.2007 was started against the appellant under Section 302 of the Indian Penal Code. On receipt of the complaint, I.C. Naihati P.S., endorsed the case to P.W.16 for investigation and sent the complaint to the P.S. for starting the case. Naihati P.S. Case No. 85 dated 14.05.2007 was started against the appellant under Section 302 of the Indian Penal Code. P.W. 16 held inquest over the dead body of the victim at the place of occurrence in presence of P.W.3, P.W.8, P.W.13 and one Goutam Roy and thereafter sent the dead body for holding postmortem examination. A report (Ext.9) was prepared. During inquest cut injuries on the neck and chest of the victim was detected. On preliminary inquiry name of the appellant surfaced to be the assailant who caused those injuries by a 'Nepala" in course of altercation. 3. On 15.05.2007, P.W.14 conducted post mortem examination over the dead body of the victim and during examination he found 03 sharp cut wounds of different dimensions on the left side of the neck and chest and opined that death was due to the effects of the injuries, ante mortem and homicidal in nature. P.W.16 had already taken up investigation of the case and on completion of investigation submitted charge sheet against the appellant under Section 302 of the Indian Penal Code. 4. On December 13, 2007 charge under Section 302 IPC was framed against the appellant and on his pleading not guilty to the charge, trial commenced. Prosecution in order to prove it's case examined 16 witnesses and also produced and proved the written complaint, formal FIR, seizure list, rough sketch map with index, inquest report, dead body challan, PM report etc. and thereafter on completion of trial and after examination of the appellant under Section 313 Cr.P.C., learned trial judge passed the impugned judgment. 5. Mr. Prosecution in order to prove it's case examined 16 witnesses and also produced and proved the written complaint, formal FIR, seizure list, rough sketch map with index, inquest report, dead body challan, PM report etc. and thereafter on completion of trial and after examination of the appellant under Section 313 Cr.P.C., learned trial judge passed the impugned judgment. 5. Mr. P.S. Bhattacharya, learned advocate appearing for the appellant submitted that the impugned judgment, order of conviction and sentence are not sustainable in law due to failure on the part of the prosecution to establish the place of occurrence, doubt with regard to the place of lodging of the FIR, investigation started before lodging of the complaint, doubt with regard to the seizure of the weapon of offence from the appellant, absence of any FSL report to link the weapon in the commission of the offence and doubt with regard to the presence of the P.W.3 at the place of occurrence as there is no whisper in the inquest report or the FIR that she saw the incident. Alternatively, it was submitted by Mr. Bhattacharya that at best provisions of Section 304 part I IPC is attracted as injury of the appellant itself suggests that while quarreling incident happened at the spur of the moment and the repentance of the appellant shows that there was no intention or any premeditated plan to kill the victim. 6. Mr. Bhattacharya relied upon the decisions of Surendra and another Vs. The State of Maharashtra reported in (2007) 1 Supreme Court Cases (Cri) 490 and Arjun and another Vs. The State of Chhattisgarh reported in (2017) 3 Supreme Court Cases 247 in support of his submissions.] 7. Mr. N. P. Agarwala, learned advocate appearing for the State submitted that the incident occurred in a broad day light in the presence of P.W.3 and the same had duly been corroborated by P.W.1, P.W.4, P.W.5 and P.W.6 and the medical evidence. Mr. Agarwala also submitted that appellant was carrying a bhojali with a pre-plan to kill the victim and the learned trial judge was quite justified in passing the impugned judgment. 8. We have considered the submissions of the learned advocates appearing for the respective parties and have perused the evidence on record to consider the propriety of the impugned judgment. 9. Agarwala also submitted that appellant was carrying a bhojali with a pre-plan to kill the victim and the learned trial judge was quite justified in passing the impugned judgment. 8. We have considered the submissions of the learned advocates appearing for the respective parties and have perused the evidence on record to consider the propriety of the impugned judgment. 9. On perusal of the evidence of P.W.14, the doctor, and the PM report (Ext.5) it was evident that during postmortem examination over the dead body of the victim the doctor found three sharp cut injuries of different dimensions of the left side of the neck, left upper chest and left lower chest of the victim and opined that death was due to the effects of the above injuries, ante mortem and homicidal in nature. He was cross-examined by the defence but nothing came out contrary to his examination in chief. Under the circumstances there appears no reason to disbelieve the evidence of the doctor. P.W.1, the FIR maker, has specifically stated on oath that on the relevant date and time while he was in his room on the first floor then heard shouting coming out from the road. He came down and went to the road in front of his house and saw the appellant standing with large knife stained with blood. He also saw the victim lying dead with bleeding injuries in front of house of P.W.3 and saw P.W.4, P.W.5, P.W.6 and other para people at the place. Appellant was then caught by the para people and was detained in the Milan Samiti club. Thereafter, police came and took the appellant and the knife to the P.S. 10. He then lodged the compliant (Ext.1), scribed by P.W.2. He identified the appellant during trial in court. He was cross examined by the defence and during cross-examination he stated that he does not know the contents of the written complaint and that he told the incident to the police and then police told P.W.2 to write the complaint and then he wrote the complaint. He even admitted that after 10/15 minutes of hearing of incident he went to the place of occurrence. He even admitted that after 10/15 minutes of hearing of incident he went to the place of occurrence. He, however, did not agree to the defence suggestion that he did not see the appellant to stand with a large knife in his hand at the place of occurrence nor the club members of Milan Samiti confine the appellant in the said club. Evidently, he is not the witness to occurrence but came their immediate by after the occurrence and saw the appellant standing with a large knife in his hand at the place of occurrence and the victim lying dead having bleeding injuries. P.W.2, the scribe, has specifically stated that he wrote the complaint (Ext.1) as per instruction of P.W.1 and read over and explained the contents to him and then P.W.1 signed thereon. 11. He identified his own signature on the complaint. He denied the defence suggestion that he wrote the complaint at the instruction of police. P.W.3, an eye witness, has specifically stated that on the relevant date and time in front of her house appellant and the victim were quarreling over the money and then the appellant took out a bhojali from his waist and assaulted the victim with that bhojali on his chest and belly as a result the victim fell down on the ground. Members of Milan Samiti Club then came and took the appellant to the club. Thereafter, police came and asked her about the incident and after that took away the dead body. She identified the appellant in course of her examination before court. She also made statement before the Magistrate under Section 164 Cr.P.C and was also a witness to the inquest. She is an illiterate lady. She was cross examined at length by the defence but her evidence remained unshaken. During cross-examination she clearly stated that there was an altercation between the appellant and the deceased and the incident of assault took place within two minutes of the quarrel. The evidence of this witness appears to be trustworthy and reliable and nothing was brought on record to discredit her credibility. P.W.4, a post occurrence witness, has deposed that on the relevant date at about 15.30 hours he heard shouting like murder. Accordingly, he went to the place of occurrence which was in front of the house of Sanjay Agarwal and saw one dead body was lying there. P.W.4, a post occurrence witness, has deposed that on the relevant date at about 15.30 hours he heard shouting like murder. Accordingly, he went to the place of occurrence which was in front of the house of Sanjay Agarwal and saw one dead body was lying there. There he heard that the appellant murdered the deceased and accordingly they being the members of the Milan Samiti Club took the appellant to their club. He identified the appellant in course of his examination before court. P.W.5, also a post occurrence witness, has deposed that deceased was murdered with a bhojali and at the time of incident he was inside the club Milan Samiti. On hearing shouting he went to the place of occurrence and heard that the appellant has committed that offence. He also saw the appellant to move there with a 'nepala'. They then apprehended the appellant and took him inside their club and sent information to the police over phone and thereafter police came and seized 'nepala' under a seizure list and he signed on the seizure list. He identified the appellant in course of his examination before court. He denied the defence suggestion that the victim was assaulted by someone else and/or that appellant was not arrested from the place of occurrence and did not confess by saying that he has done a mistake. P.W.6 also a post occurrence witness has deposed that on the relevant date and time while he was coming out from his house to their club Milan Samiti then he heard shouting of murder. He then rushed towards his club and saw the victim lying in front of the house of P.W.3 and saw the appellant standing with a bhojali there and blood was coming out from bhojali and he was not allowing any one to come forward. Then some members of the club caught him from behind and took him inside the club and confined him and informed to the police. Thereafter, police came and arrested the appellant and sent the dead body to the hospital. He admitted that he did not see the incident of murder but specifically stated that the deceased was murdered by the appellant with a bhojali. Thereafter, police came and arrested the appellant and sent the dead body to the hospital. He admitted that he did not see the incident of murder but specifically stated that the deceased was murdered by the appellant with a bhojali. During cross-examination he clearly stated that P.W.4 caught the appellant at first and thereafter they caught him and he was confined in the club and police came and arrested him and took away the dead body. P.W.7 also a post occurrence witness has deposed that on the relevant date victim was murdered by the appellant with a sharp cutting weapon and after hearing the same he went to their club as the appellant was confined there and there he saw the appellant and the members of the club and he also saw blood at the hand of the appellant. He saw the dead body of the deceased and also saw P.W.4, P.W.5, P.W.6 and P.W.7 inside the club. He identified his signature on the seizure list. 12. During cross-examination he specifically stated that he signed on the seizure list in the club. He denied the defence suggestion that out of conspiracy of the club members he has falsely implicated the appellant and deposed falsely. P.W.8 also a post occurrence witness has deposed that on hearing the shouting he went to the place of occurrence and saw the deceased lying dead in front of the house of P.W.3 and saw the appellant to move with a blood stained nepala. He also saw P.W.1, P.W.5, P.W.13 and others there. Appellant was then taken to Milan Samiti Club and thereafter police came. He admitted that he did not see the incident and after his arrival at the place of occurrence he saw P.W.13, P.W.15 and others had already come there. He did not agree to the defence suggestion that he did not see the appellant to move with a nepala at the place of occurrence and/or that appellant was not taken to the Milan Samiti Club. P.W.9 is the photographer who took the photograph of deceased and the place of occurrence. P.W.10 and P.W.11, the constables, and P.W.12 ASI of the police are the witnesses to the seizure of the wearing apparel of the deceased etc. P.W.9 is the photographer who took the photograph of deceased and the place of occurrence. P.W.10 and P.W.11, the constables, and P.W.12 ASI of the police are the witnesses to the seizure of the wearing apparel of the deceased etc. P.W.13 also a post occurrence witness has deposed that deceased Tapan was murdered by the side of the tea stall of Sanjay Agarwala and he saw the appellant in the Milan Simiti club and heard that appellant murdered the deceased. P.W.14 is the autopsy surgeon who conducted post mortem examination over the dead body of the victim. P.W.15 is the finger print expert who examined the seized bhojali. According to him on 15.05.2007 he examined bhojali but did not get any print on the bhojali and as such he did not examine the finger prints supplied to him. P.W.16, is the investigating officer who after completion of investigation submitted charge sheet against the appellant. During cross-examination he admitted that at the place of occurrence defacto complainant gave the written complaint to the inspector-in-charge and that as per the inquest he found two injuries on the dead body. He also admitted that he came to know during investigation that due to scuffling with deceased at the time of incident appellant received injury on his body and he arrested the appellant from Milan Samiti club. He denied the defence suggestion that FIR was written at the P.S. 13. Thus going from the above, we find that P.W.3, the sole eye witness has vividly narrated the incident which led to the death of the victim. Her evidence appears to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears no reason why she should implicate the appellant and there is in fact, nothing on record to suggest that she had any reason to falsely implicate the appellant. The other post occurrence witnesses too found the appellant at the place of occurrence standing with blood stained bhojali and the victim lying dead and accordingly he was caught and detained at the club and police was informed and thereafter police came and apprehended the appellant with the weapon. However, in course of examination of above witnesses certain exaggeration and discrepancies cropped up. However, in course of examination of above witnesses certain exaggeration and discrepancies cropped up. But with regard to the discrepancies, it is the settled proposition that the discrepancies found in the evidences of witnesses cannot affect their credibility unless such discrepancies are so vital. In the case in hand, though we found certain contradictions and embellishment in between the evidence of some of the witnesses but those are not so weighty and formidable touching the merit of the case. 14. With regard to non disclosure of the name of P.W.3 in the F.I.R. or in the inquest report to be the eye witness, as submitted by the learned advocate for the appellant, it is well settled that the primary object of FIR is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. Similarly, the provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted. The section does not contemplate that the manner in which the incident took place or the names should be mentioned in the inquest report. So non disclosure of the name of P.W.3 in the F.I.R. or in the inquest report to be the eye witness can not be a ground to doubt her presence at the place of occurrence. Ext.9 also shows P.W.3 to be one of the witness to the inquest. Furthermore, presence of P.W.3 at the place of occurrence has been corroborated by P.W.6. P.W.3 has vividly narrated the incident how it occurred and the defence failed to impeach her credibility. In view of the above, we do not find merit in the submission of the learned Advocate for the appellant. 15. Regarding the place of occurrence, we find from Exts.8 and 8/1, the rough sketch with index, that the place of occurrence is situated on the road in front of the house P.W.3 on one side of road and stall of Sanjay Agarwal on the other side of the road. 15. Regarding the place of occurrence, we find from Exts.8 and 8/1, the rough sketch with index, that the place of occurrence is situated on the road in front of the house P.W.3 on one side of road and stall of Sanjay Agarwal on the other side of the road. P.W.1 and P.W.6 have stated the place of occurrence in front of the house of P.W.3 which has duly been corroborated by P.W.3, the eye witness. Other witnesses have stated the place of occurrence in front of tea stall of Sanjay Agarwal. Both are right in their own way and there was no ambiguity or confusion with regard to the place of occurrence. In view of the above, we do not find any substance in the submission of the learned Advocate for the appellant that the place of occurrence was not established. 16. Regarding the alleged contradiction in between the statements of P.W.1 and P.W.16 with regard to the place of lodging of complaint, we are of the considered opinion that such contradiction will not go to the root of the case in view of the fact that Ext.1 is the only complaint admittedly lodged by P.W.1. P.W.16 specifically stated on oath that Inspector-in-charge received the complaint (Ext.1) from P.W.1 at the place of occurrence and endorsed the same to him for investigation. He even affirmed the same during cross-examination. This also found corroboration from Ext.1/3. P.W.2, the scribe, has specifically stated that he wrote the complaint (Ext.1) as per instruction of P.W.1 and denied the defence suggestion or the claim of P.W.1 that he wrote the complaint as per instruction of police. Even no suggestion was put by the defence to P.W.2 that he scribed the complaint at the P.S. and it was submitted at the P.S. Therefore, our interference with the impugned judgment is not required on the above grounds. 17. Even no suggestion was put by the defence to P.W.2 that he scribed the complaint at the P.S. and it was submitted at the P.S. Therefore, our interference with the impugned judgment is not required on the above grounds. 17. Regarding seizure of the weapon of offence and it's non production before the autopsy surgeon to obtain his opinion or during trial for identification by witnesses and absence of any FSL report, we find from the evidence on record that P.W.1, the FIR maker, P.W.3,the eye witness, P.W.5,the seizure witness, P.W.6, and P.W.8 have stated that on the relevant date and time victim was murdered and appellant was found standing with a 'Nepala' and he was apprehended by the members of the club Milan Samiti and was detained there and thereafter police came and took the appellant and 'Nepala' to the P.S. P.W.5, witness to the seizure, has specifically stated that on hearing the shouting he went to the place of occurrence and saw the appellant to move there with a 'Nepala' and accordingly they apprehended him and took him inside the club and informed to the P.S. over phone and thereafter police came and seized the 'Nepala' in their presence by a seizure list on which he signed. He identified his signature (Ext.2) on the seizure list. P.W.16, the investigating officer, has also specifically stated that on getting telephonic information about murder of the victim by the appellant and his detention by local people of the Milan Samiti Club, he went there along with the force and arrested the appellant from the Milan Samiti Club and seized the blood stained bhojali by a seizure (Ext.2/6). He also affirmed the same during cross- examination. Interestingly, he was not challenged by the defence that no such blood stained bhojali was recovered nor the same was seized by him. During examination under section 313 Cr.P.C. appellant even affirmed his thumb impression on the seizure list. He also affirmed the same during cross- examination. Interestingly, he was not challenged by the defence that no such blood stained bhojali was recovered nor the same was seized by him. During examination under section 313 Cr.P.C. appellant even affirmed his thumb impression on the seizure list. He also affirmed the prosecution claim that on the relevant date and time he was detained in the club by the local people but went on to claim that while he was on his way to home he found some people in front of Raju Shaw's wine shop and he was assaulted by the club boys though no reason was assigned by him for such behavior of the club members nor adduced any D.W. in support of his such claim. It is true that the weapon of offence (Mat. Ext. II) was not produced before the autopsy surgeon or before the witnesses during trial but that will not make the prosecution case doubtful in view of the ocular evidence. Even the autopsy surgeon during postmortem examination found sharp cut injuries on the person of the deceased. From the evidence of P.W.15 and Ext.6, it appears that the seized weapon was sent for examination of finger print but no workable prominent finger print was found on the same as such P.W.15 did not examine the finger prints supplied to him. We find from the evidence of P.W.16 that he also sent the blood stained wearing apparels, viscera, P.M. blood for FSL but there was nothing on record to show that he ever took any initiative to get those examined in the Forensic Serological Laboratory and collect the FSL report. Undoubtedly, there is some laches on the part of the investigating officer in not obtaining any report from the FSL relating to blood found on the axe, wearing apparels etc. but it is settled law that for certain defects in investigation or lapses on the part of the investigating officer, the accused cannot be acquitted. We do not find any substance in the submission made to the effect that the impugned conviction requires our interference on the ground of failure on the part of the investigation agency to collect the Forensic Serological Laboratory report. When the prosecution case is based on the evidence of eye witness then there is no scope of acquittal of the accused person on the above ground. 18. When the prosecution case is based on the evidence of eye witness then there is no scope of acquittal of the accused person on the above ground. 18. Regarding claim of starting of investigation prior to starting of any specific case, we find from the evidence of PW 16 that prior to staring of a specific case one information was received at the P.S. about the incident and thereafter, P.W.16 along with the police officers and force went to the place of occurrence and there written complaint (Ext.1) was handed over to the Inspector-in-Charge who then endorsed the case to him(P.W.16) for investigation and sent the complaint to the P.S. after making endorsement (Ext.1/3) therein for starting a case. Ext.1/3 shows that the said complaint was received at the place of occurrence at 17.40 hours while Ext.1/2 shows that the same was received at the P.S. at 17.45 hrs. Ext.7 shows the distance between the P.S. and the place of occurrence only one and a half k.m. Inquest report (Ext.9), rough sketch map (Ext.8), seizure-list (Ext.2/6) etc. show that those were prepared in connection with the specific case started after lodging of the complaint. We do not find any merit in the claim made on behalf of the appellant that investigation started prior to starting of any specific case. 18. Therefore, our interference with the impugned judgment is not required on the above grounds. 19. Therefore, taking into account the evidence of the prosecution witnesses on record and the circumstances discussed herein above, there remains no scope to disbelieve the prosecution story that it was the appellant who inflicted injuries on the person of the victim during quarrel by a bhojali. Learned trial judge on scrutiny of the evidence on record and circumstances leading to the death of the victim arrived at an obvious conclusion that it was the appellant who caused the death of the victim. We do not find any fault in the decision making process of the learned trial judge to arrive at the conclusion that it was the appellant who caused the death of the victim. 20. Therefore, our interference with the impugned judgment is not required on that ground. 21. We do not find any fault in the decision making process of the learned trial judge to arrive at the conclusion that it was the appellant who caused the death of the victim. 20. Therefore, our interference with the impugned judgment is not required on that ground. 21. The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304 Part I or Part II IPC as raised by the learned Advocate for the appellant. 22. In the case in our hand we find from the FIR (Ext.1) and the evidence of P.W.3, the eye witness, that there was a quarrel between the appellant and the victim over old topic happened that day in the morning in between them over money matters and in course of quarrel appellant struck the victim by a bhojali. This also found corroboration from inquest report (Ext.9) prepared by the investigating officer in presence of P.W.3, P.W.8, P.W.13 and other. Appellant and the victim were the friends as is evident from the evidence of P.W.3. There was no evidence on record to show that after inflicting such injuries on the victim appellant tried to flee away from the scene. On the other hand, it has come out from the FIR that appellant after striking the victim by a bhojali was repentant and was thumping his head what he has done? Injury report (Ext.12) shows cut injury on the left index finger and bruise over forehead of the appellant sustained by sharp weapon during quarrel between the two friends name victim. P.W. 16, the investigating officer has also deposed that appellant sustained injuries due to scuffling with the victim at the time of incident. Thus, it appears that though the appellant struck the victim with a bhojali on his neck and chest but we do not find any conclusive evidence on record that appellant had predetermined motive or enmity or intention to kill the victim but it seems that it had occurred in a fit of anger on sudden provocation due to quarrel between the appellant and the victim over money matters which probably deprived him of his power of self control. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellant under Section 302 of IPC. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellant under Section 302 of IPC. The learned Court below failed to consider at the time of passing the judgment that no evidence was brought on record to prove that it was a preplanned cold blooded murder on the basis of long time conspiracy. Therefore, the impugned judgment, order of conviction and sentence are liable to be interfered with. 23. Accordingly, we allow this appeal to the extent that the conviction of the appellant under Section 302is altered to one under Section 304, Part-I of the Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed upon the appellant and the default sentence awarded to him remain unaltered. The period of detention of the appellant undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428 Cr. P. C. 24. This appeal is thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above. 25. Copy of this judgment along with the lower court records be sent down to the trial court immediately by special messenger for information and taking necessary action. 26. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. Thirthankar Ghosh, J. : I agree