Ajit Barman vs State Of West Bengal

Sahidullah Munshi, J

This appeal is against the judgment and order of conviction and sentence dated 23rd April, 2008 passed by the learned Additional District & Sessions Judge, Fast Track, 1st Court, Sadar, Cooch Behar in Sessions Trial no. 188/2007 convicting the appellant under Section 302 of the Indian Penal Code and sentencing the convict to suffer imprisonment for life and to pay fine of Rs.5,000/- in default to suffer imprisonment for one year more for the offence punishable under Section 302 of the Indian Penal Code.

Baxirhat P.S. Case no. 74/06 dated 15.10.2006 was registered under Section 302 of the Indian Penal Code on the basis of written complaint dated 15.10.2006 received by the police station at 16.45 hours on the same day which ultimately, led to Sessions Trial no. 188/2007 in which the accused was convicted.

According to the written complaint filed by Mrinal Barman (PW11) who happens to be another son of the victim, his second brother and mother used to live in a joint mess but due to some family disturbance his mother started leaving separately since 3-4 days prior to the occurrence of the incident happened at about 11.00 am. His mother /Sumitra Barman/victim aged about 52 years visited the house of his brother Ajit Barman to take an arum which was duly planted by her in the land situated behind the house of accused/appellant and the said second brother/accused/appellant assaulted his mother with a 'dao' resulting whereby she fell down on the ground but the accused/appellant continued to strike blows of 'dao' on the person of his mother and thereafter, he continued to inflict several blows by a spade on his mother's body and she died on the spot. According to the complainant (PW11) he was not at his residence at the time of occurrence. This complaint dated 15.10.2006 was received by police on the same day at 16.45 hours. FIR was placed before the Chief Judicial Magistrate Tufanganj on 16.10.2006.

Investigating Officer took steps for inquest and thereafter, sent the dead body for post-mortem examination. The accused was arrested his statement was recorded and recovered the offending weapons as per the statement of the accused in presence of witnesses. The investigation culminated into filing of charge-sheet against the accused/appellant for his commission of offence punishable under Section 302 IPC.

Record reveals that the offence was committed on 15.10.2006 at 11.00 am. Complaint was received at 16.45 hours on the same day. Accused was arrested on 15.10.2006 at 7.10 pm, produced before the Magistrate on 16.10.2006 and learned Magistrate granted bail on 15.01.2007. And again he was taken into custody on 23rd April, 2008 after which he was never enlarged on bail even during pendency of the appeal. He was in custody about 12 years.

This case was committed by the learned Additional Chief Judicial Magistrate, Tufanganj before the learned Sessions Judge and learned Sessions Judge thereafter transferred the same before the Court for adjudication. The trial Court framed charge against the accused after giving him opportunity to defend the charge framed against him under Section 302 of Indian Penal Code. The charge being read over and explained to the accused person he pleaded not guilty and claimed to face trial. Prosecution examined as many as 14 witnesses.

Learned trial Court took into consideration whether on the day when the offence was committed in the house of Ajit Barman, the said Ajit Barman himself committed the murder and if so whether he intentionally cause death of the victim/Sumitra Barman by making strikes with 'Bekidao' and 'Kodal' upon the victim or not. Learned trial Court in course of trial categorized the witnesses in two categories namely, (1) near relations & (2) local persons. The learned Court below has also taken note of some other witnesses who played different role in the process of investigation. PW1 to PW6 and PW11 to PW13 the witnesses of the first category of the remaining witnesses PW7 is the employee of a studio who took a snap of dead body during investigation. PW8 and PW9 are the police personnel who also played a role in the process of investigation. PW10 is the medical Officer who conducted the post-mortem examination over the dead body of Sumitra Barman and PW 14 is the Investigating Officer of this case. Of these witnesses PW1 and PW11 are the witnesses to Surathal.

According to the sketch map drawn by the Investigation Officer place of occurrence is just on the western side of the dwelling house of the accused and on two sides of the place of occurrence that is on the West and South there lay some cultivable lands. Just on the northern side of the place of occurrence and the dwelling house of the accused there lay other dwelling houses and these dwelling houses are situated just on the western side of a narrow lane which has been curbed out of road called gravell road.

Post-mortem report reveals multiple assaults, cutting injuries and doctor opined that the death has been caused due to shock and hemorrhage from injuries caused by sharp cutting and heavy weapons which is anti-mortem and homicide in nature. Post-mortem report disclosed as many as six injuries over the body of the victim.

PW1 is the witness to Surathal. He was declared hostile by the prosecution. Before he was declared hostile he stated "Sumitra barman has expired one year back. Sumitra Barman was murdered in the back side of the house of Ajit Barman. Police came after the incident. Police made seizure from the spot and thereafter prepared seizure list. Police told me to sign on a paper and I put a signature thereon. (On perusal of seizure list) This is my signature (marked Exbt.-1). This is my another signature on another seizure list (marked Exbt.-

2). I did not visit hospital. (On perusal of inquest report). This is my signature on inquest (marked Exbt.-3). I did not make any statement before police." The witness thereafter, was declared hostile. However, during cross-examination of this witness by prosecution he stated "My house is about ½ Kilometer away from the house of Ajit. Police put my signature on the seizure list and the other paper on the road while I was on the road. I have not seen police to seize any item." From this witness who is a resident of the locality and resides ½ kilometer away from the place of occurrence it is ascertained that the place of occurrence is at the backside of the house of the accused/appellant. Witness identified his signature on the seizure list, Exbt.1 and Exbt.2 being signature on the seizure list and Exbt.3 being the signature on the inquest has been proved. Therefore, this part of the evidence is admissible in evidence and we can rely on the same. PW2 also stated "Hearing shout we rush to the house of Ajit and noticed his mother was lying having bleeding injury on her person. Said lady was lying just behind the house of Ajit. Police did not examined me." This witness was declared hostile when he stated police did not examine him. However, before he was declared hostile it appears he is a post occurrence witness who immediately rushed to the place of occurrence and found the victim lying just behind the house of the accused. PW2 being an independent local witness corroborates the evidence of PW1 and both the witnesses identified the place of occurrence which is just at the backside or behind the house of the accused/appellant.

PW1 who is a neighbour of both the accused and the victim is also a witness to the seizure list. There are two seizure lists. PW1 identified his signature on the seizure list and seizure list has been marked as Exbt.1. Seizure list contains the weapon by which the victim was killed. Another seizure list which is marked as Exbt.2 where this witness PW1 also signed as a witness shows the seizure of "blood stained earth and some sample of mud" seized from the place of occurrence which is the land of the accused. This PW1 happens to be also a witness to the Surathal report. Surathal report is prepared on the basis of preliminary investigation and which reveals some family disputes between the victim and the accused. It also reveals that the victim and her another son Mrinal Barman left house of the accused (the other son of the victim) three or four days back and the victim and her son Mrinal were residing separately. On the day of incident at 11.00 am victim came to the land situated behind the house of the accused where she started to uproot some plants from the said land. It further reveals that they used to live in joint mess when they (victim and her son) used to live in joint mess, at that time the victim herself showed those plants on the disputed land and while the accused saw his mother on the disputed land uprooting the plants gave blows with 'dao' on her which the victim could not sustain and fell down on the earth and later expired on the said land. Said report further disclosed that before happening the incident accused used to assault his mother. This revelation of the chain of incidence before the occurrence has been confirmed by PW1 and PW11/Mrinal Barman, who also happens to be the other son of the victim and the complainant. PW11 in his deposition categorically stated that at the time of his mother's death he was not present but later on when the seizure was made he was present before the police. This PW11 lodged the complaint with the police station. In his deposition he stated that he lodged the written complaint and identified his signature on the said complaint which was marked as Exbt.5/1. Police in course of investigation came to the place of occurrence and this witness signed on the seizure list marked Exbts. 1/1, 2/1 and 3/1 respectively. The offending item was also seized by the police and identified by the police which was marked material Exbt.III. The evidence of PW11 corroborates the contents of the written complaint which is again corroborated by the independent witness PW1. Seizure of the offending weapon (Exbt.1) has been witnessed by PW1 and PW11 and other seizure (Exbt.2) has also been witnessed by PW1 and PW11. Evidence of PW1 and PW11 corroborates each other and corroborates the written complaint also. One other witness PW12 (Hari Barman) also witnessed the seizure list (Exbt. 1 and Exbt.2). He is a local witness who knew PW11 (complainant), victim and the accused. He identified the accused on dock. This witness however, identified the place of occurrence but he could not confirm whether police seized items from the place of occurrence or not. This witness was cross-examined but nothing could be gained by the defence from such cross-examination.

Therefore, even if we for the time being do not accept the evidence of PW11 who is said to be other son of the victim and the brother of the accused having had some degree of enmity, the evidence of PW1, a neighbour being seizure witness and witness to the inquest read with the evidence of PW12/Hari Barman the other witness, both the seizure and inquest. This Court gets confidence about the place of occurrence and the offending weapon found from the place of occurrence and this place of occurrence has been identified to be at the backside of the residence of the accused. Such being the position the accused is liable to explain as to how the incident took place when he was present at the spot or even at his residence. If the defence indicates that the accused is not guilty and some other person might have been involved in the killing of the victim then the liability of this accused is too high to explain away the doubt raised against him which if not proved, ultimately, by the other witnesses. Now we can consider the evidence of PW3 who happens to be son-in-law of the victim and PW4 who happens to be the wife of PW3 and daughter of the victim. Defence has tried to point out that PW3 and PW4 are interested witnesses. That apart PW3 has been declared hostile by the prosecution, therefore, his evidence cannot be considered at all. PW3 before being declared hostile, however, deposed "...She expired about a year back. She was found to be dead just the backside of the house of Ajit. She was murdered. My house adjacent to the house of Ajit. She was murdered that I know but I do not know who murdered her." Apart from identifying the accused committed murder this witness (PW3) identifies the place of occurrence which is at the backside of the house of the accused and that his house is adjacent to the house of the accused. However, when he deposed in cross-examination that police did not examine him. Therefore, his statement cannot be admitted into evidence.

PW4 stated she resides next to Ajit but she could not confirm as to who murdered her mother. In this situation we cannot rely on the evidence of PW3 and PW4.

Daughter of PW3 and PW4 is also a witness to the incident as PW5. Although, this PW5 was declared hostile on a later stage but before being declared hostile she stated that her statement was recorded before the learned Magistrate and her signature on the 164 statement has been marked Exbt.4/1 and Exbt.4/2. Although, the contents of the 164 statement has not been proved in absence of learned Magistrate who recorded the statement of this witness (PW5) but she deposed "She was found as dead at the backside of house of my maternal uncle. At that time on I went to attend my private tuition. I do not know as to how she was murdered. I made statement to the learned Magistrate." After this witness being cross-examined by the prosecution she deposed "Thereafter on a sudden my maternal uncle Ajit made several strokes upon my grandmother on her head and other portion of the body and even when she falls on the ground he continued such strokes upon her and due to such assault the handle of the dao was broken. After that my grandmother expired at the spot and maternal uncle fled away from that place. and I have seen the incident in my own eyes. It is not a fact that in order to save my maternal uncle I am deposing falsely." In cross-examination by the defence this witness, however, stated that she stayed at the police station and she made statement as per the instruction of police. Banking upon such statement Mr. Bhattacharya appearing for the appellant submitted that the witness was tutored by the police and therefore, the statement recorded under Section 164 has no evidentiary value even cannot be used for the purpose of contradiction or corroboration. The statement so recorded by the learned Magistrate has not been admitted into evidence inasmuch as the learned Magistrate never deposed before the Court. The signature on the 164 statement, however, had been marked Exhibits. In such circumstances Mr. Bhattacharya submitted that the entire evidence of PW5 cannot be accepted. He submitted that she is a doubtful witness and conviction on the basis of such statement cannot be made.

This part of the argument of Mr. Bhattacharya cannot be accepted inasmuch as even if we do not accept the 164 statement recorded before the learned Magistrate but independent of the 164 statement if the deposition of PW5 is taken into consideration it gets corroboration from other independent witnesses and if that be so we do not find any logic to disbelieve PW5, who, in our opinion is the star witness in this case being 14 years of age only. She has categorically stated in her cross-examination that she has seen the incident in her own eyes, that material could not be thrown out by the defence to disbelieve such witness. Therefore, even solely on the basis of this witness PW5 we can come to a conclusion that the accused is guilty of the offence for which he has been charged.

Witness PW5 appears to be an eye-witness. She clearly stated before the learned Magistrate that she saw the entire incident how the accused gave blows to the victim and by which ultimately, she succumbed to death but in cross-examination she stated that she deposed as police dictated her to state. Learned counsel for the appellant submitted because of this witness that she was dictated by police to depose before the learned Magistrate the entire 164 statement is useless and cannot be used in evidence. Apart from the fact that the statement as recorded under Section 164 has been marked Exbt. 9 without any objection on behalf of the defence. Now we decide this question how far the statement of PW5 and her statement recorded under Section 164 Cr.P.C. supports the prosecution, particularly when 164 statement was recorded has been marked as Exbt.9.

Statement recorded under Section 164 of the Code of Criminal Procedure is not a substantive piece of evidence, it only can be used either for the purpose of corroboration or for the purpose of contradiction. Simply because contents of the 164 statement has not been proved substantive evidence before the Court on the box cannot be disbelieved and we do not find any logic for this when such evidence on box by the witness is otherwise corroborated by other independent witnesses. We do not justify accepting the submission of Mr. Bhattacharya to disbelieve this witness or to disbelieve an eye witness of the incident.

PW13/Bisakha Barman is another hostile witness whose statement was also recorded under Section 164 Cr.P.C. and has been marked as Exbt.9. When she stated she was not examined by the police she was declared hostile. But how far her evidence can be accepted. She deposed "...I do not know as to who murdered her. During investigation I was placed before Ld. Magistrate and I made by statement there. On perusal of Statement recorded by Ld. Magistrate : witness submits Yes, these are my signatures on my statement (marked Exbt.-9 collectively). I was not examined by police." Her evidence on dock if does not lend any corroboration to the happening of the incident but undoubtedly her statement recorded under Section 164 of the Cr.P.C. has been marked Exbt.9 and we apply the principles of corroboration and/or contradiction by the statement of this witness recorded under Section 164 Cr.P.C.

Learned advocate for the State has argued that there is no fault in the finding arrived at by the learned trial Court convicting the appellant for the charge complained of. State relied on the following decisions:

Jaspal Singh -Vs. - State of Punjab reported in AIR 1986 SC 683;

Nachhittar Singh -Vs. - The State of Punjab reported in (1975) 3 SCC 266;

Koli Lakhmanbhai Chanabhai -Vs. - State of Gujarat reported in AIR 2000 SC 210;

C. Muniappan & Ors. -Vs. - State of Tamil Nadu reported in AIR 2010 SC 3718;

Learned advocate for the State relying on Jaspal Singh (supra) submitted that when injury of such nature which would resultantly cause death of a person is sufficient to hold that the person who causes the injury had the intention to committing murder. We do not dispute the proposition and we appreciate that the principles can be correctly applied in this case.

Nachhittar Singh (supra) has been cited on the ratio where if failure of prosecution to prove the motive whether discredit the entire prosecution case. This decision has been rightly cited by the State in this case inasmuch as the occurrence has happened so suddenly and the blows and strokes given by the accused through the offending weapons does not leave any doubt that if such blows are given to a person death is imminent.

Koli Lakhmanbhai Chanabhai (supra) has been rightly cited by the State that a witness whenever declared hostile does not mean that no part of the deposition of such a hostile witness is to be believed. We have already discussed this in our judgment earlier.

C. Muniappan (supra) has been cited by the State to argue that even if there is no defect and/or latches on the part of the Investigating Officer, this is not automatic for the accused to get an order of acquittal, we do not disagree with the learned advocate as regards this proposition but at the same time the prosecution must act with utmost care to prove the guilt of a person /accused of an offence and take adequate care that for its fault and/or any lacuna a guilty person does not get acquittal on account of benefit of doubt. In this case however, we do not find any such fault on the part of the prosecution as grave as it might lead to acquittal of the accused.

The other decision cited by the learned counsel for the State in Ramdeo Chauhan alias Rajnath Chauhan -Vs. - State of Assam reported in (2007) 7 SCC 455 to argue that this is rarest of rare cases where the victim has been killed by the son, it is true that this is a rarest case but circumstances under which the mother/victim has been killed by the son, we do not find any justification to hold any bigger punishment than what has been inflicted by the learned Court below. Therefore, this ratio of this decision not applicable in the present case.

Learned advocate for the appellant has relied on the following decisions:

Attar Singh -Vs. - State of Maharashtra reported in (2013) 11 SCC 719;

Haradhan Das -Vs. - State of West Bengal reported in (2013) 1 SCC (Cri) 921 &

State of M.P. -Vs. - Mansingh & Ors. reported in (2007) 2 SCC (Cri) 390

Attar Singh (supra) relied by Mr. Bhattacharya appearing for the appellant to argue that Court is not precluded from taking into account the statement of hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. However, justifying the ratio of the decision we hold that no part of the hostile witness can help appellant to get an order of acquittal in this case.

Haradhan Das (supra) has been cited to argue the same principles which he has argued cited Attar Singh (supra). Mr. Bhattacharya has relied on paragraph 15 of the decision which is set out below:

"15. It is a settled principle of law that the statement of a witness who has been declared hostile by the prosecution is neither inadmissible nor is it of no value in its entirety. The statement, particularly the examination-in-chief, in so far as it supports the case of the prosecution is admissible and can be relied upon by the Court. It will be useful at this stage to refer to the judgment of this Court in the case of Bhajju @ Karan v. State of Madhya Pradesh [(2012) 4 SCC 327] where this Court, after discussing the law in some elaboration, declared the principle as follows: -

"33. As already noticed, none of the witnesses or the authorities involved in the recording of the dying declaration had turned hostile. On the contrary, they have fully supported the case of the prosecution and have, beyond reasonable doubt, proved that the dying declaration is reliable, truthful and was voluntarily made by the deceased. We may also notice that this very judgment, Munnu Raja (1976) 3 SCC 104 relied upon by the accused itself clearly says that the dying declaration can be acted upon without corroboration and can be made the basis of conviction.

Para 6 of the said judgment reads as under: (Munnu Raja case, SCC pp. 106-07) "6. ... It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated (see Khushal Rao v. State of BombayAIR 1948 SC 22). The High Court, it is true, has held that the evidence of the two eyewitnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration."

Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.

It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.

The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled canon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases:

a. Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 b. Prithi v. State of Haryana (2010) 8 SCC 536 c. Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 d. Ramkrushna v. State of Maharashtra (2007) 13 SCC 525"."

However, the decision does not help Mr. Bhattacharya to argue that his client is entitled to get an order of acquittal. We hold that evidence of a witness even if declared hostile can be considered if before he is declared hostile his evidence is corroborated by other independent reliable witness and anything coming out from his cross- examination by the prosecution cannot be brushed aside if it is otherwise reliable.

Mansingh and Ors. (supra) which has been cited by Mr. Bhattacharya has no manner of application in the present case and the same is distinguishable on fact. Rather the decision itself held that evidence of witnesses cannot be discarded merely because their statement were recorded under Section 164 of the Code and in this respect the Hon'ble Apex Court has referred the decision in Balak Ram and Anr. -Vs. - State of U.P. reported in AIR 1974 SC 2165 and Ram Charan and Ors. -Vs. - The State of U.P. reported in AIR 1968 SC 1270.

On perusal of the evidence of PW14 the Investigating Officer who was examined while in police custody and his deposition and cross-examination by the defence we cannot doubt the prosecution case. Each and every attempt has been made by the prosecution to prove the case beyond reasonable doubt and available evidence adduced by the prosecution favours conviction which the learned trial Court has rightly and fairly done. Ultimately, medical evidence of PW10 corroborates the occurrence of death of the victim by multiple injuries through sharp cutting weapon. Medical report corroborates the evidence of seizure of weapons and therefore, of such corroboration by the medical evidence to the occurrence of the incident and which is directly linked with the death of the victim, we have no doubt in mind that there was every possibility of death of the victim because of the weapon seized by police during investigation and of which medical expert gave his opinion.

Learned trial Court passed an order of conviction based on circumstantial evidence leaving the evidence of PW5 and PW13. Learned trial Court was little hesitant to rely on PW5 and PW13 whose statements have not been considered and also did not give importance to PW8 and PW9 inasmuch as in her cross-examination PW5 stated that she deposed before the learned Magistrate as dictated by police. We cannot endorse this view at all and we do not accept that only because this witness PW5 in her cross-examination by defence admitted that she stayed at Police Station before she going to the chamber of the learned Magistrate for recording her statement under Section 164 Cr.P.C., the entire evidentiary value of the statement under Section 164 Cr.P.C. shall be evaporated. We rather consider this piece of evidence (Exbt.9) together with the other part of her deposition before the Court, particularly where the statement under Section 164 Cr.P.C. has been marked as Exbt.9 without any objection from the defence.

In an appeal against an order of conviction we cannot permit the appellant to urge a point which has never been argued before the trial Court. More so, when at the time of admission of the evidence if a party does not raise any objection regarding admissibility of the evidence he is not permitted to raise the same before the document has been marked as an exhibit. It is true that Court has always to consider the probative value of a document and in our view the probative value of this 164 statement does not stand dissolved merely, because the statement in reply to the cross-examination of the defence that there is a possibility of the witness being tutored by the police. But this is not sufficient to establish that the witness has been tutored by the police. Other satisfactory materials are evidently required to be brought on evidence. We found no suggestion on behalf of the defence whether any police personnel was present or not on whether in the Magistrate's chamber there was any police personnel. All these suggestions are absent and in absence of such suggestions we are not convinced at all to hold that Exbt.9 has no probative value in this case. Therefore, the order of conviction passed by the learned trial Court is based on sufficient evidence to justify the order of conviction and in addition we hold that the learned trial Court ought to have relied upon the evidence of PW5 and PW14 who were the eye-witnesses to the occurrence and we further hold that there is no reason to disbelieve their evidence at all.

Therefore, we are of the considered view that the accused is liable to be convicted for the offence for which charge was framed against him and the trial Court has rightly convicted him by passing the order of conviction and sentence. The order of conviction and sentence do not call for any interference rather we confirm the same.

The appeal is, therefore, dismissed.

Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.

I agree.