Bhambal Maity vs State Of West Bengal

@JUDGMENT-JUDGMENT

Subhasis Dasgupta, J

This criminal appeal is preferred against the judgment and order of conviction, passed by learned Additional Sessions Judge, Baruipur, South 24

Parganas in Session  case No. 67 (12) 2005 convicting the accused/appellant under Section 302 of Indian Penal Code, and sentencing him

thereunder to suffer life imprisonment, and to pay a fine of Rs.10,000/-(ten thousand) with default stipulation of rigours imprisonment for additional 2

(two) years.

The accused/appellant assailed the order of conviction and sentence taking resort to multiple grounds in order to establish that the order of conviction

was an improper exercise of authority vested to learned Trial Judge by not adhering to established principle of criminal jurisprudence.

Before addressing the points, it would be relevant here and pertinent also to mention the established facts precisely for addressing the issues raised

perfectly.

De-facto complainant happens to be the elder brother of deceased, a wood merchant. On 15th May, 2005 at about 5.30 A.M in the morning, while

complainant was in his bathroom, situated in the back side of his house, suddenly one unknown passer-by/van puller informed complainant that

accused Bhombal Maity, an adjoining shop owner of the house of deceased had been chasing his deceased brother, Basudeb Sha, taking axe in his

hand to kill him. Complainant then instantly came out of his house, and while searching, he could find from a tea stall of Ilias, situated at the bank of

Matla river that his brother was lying half dead then on the bank of river. Complainant also found accused, Bhombal Maity running away with axe in

his hand from the bank of river. The bewildered brother/complainant having felt urgency of securing medical attention to his injured brother, could not

chase the assailant of his brother. Injured was taken to hospital. Ultimately the injured brother of complainant took his last breath on the way to

hospital. The hospital authority accordingly declared injured, Basudeb Sha to have already suffered death in the meantime. Police receiving death

news from hospital authority, held inquest over the dead body, and ultimately took up investigation, receiving a complaint from de-facto complainant,

Jagannath Sha at 07.55 hrs. on 15.05.2004. The dead body was subjected to autopsy. On conclusion of investigation police submitted charge sheet.

The trial court framed charge against the accused/appellant under Section 302 I.P.C., and concluded the trial collecting as many as eleven (11)

witnesses.

Defence plea set up during trial is denial of offence together with false implication, even after when opportunities were extended to accused/appellant

to explain the incriminatory evidence brought against him in course of examination under Section 313 Cr.P.C. An endeavour was also made by

accused/appellant in support of his available defence by putting suggestion in the form of denial that accused/appellant was illegally roped in this case

after grabbing his property including his shop most illegally, which was, however, denied by the witnesses examined during trial.

Out of eleven (11) witnesses examined, PW-1, PW-3 and PW-5 are said to have witnessed the incident as direct witness to the incident, who are

elder brother and nephews of deceased respectively. PW-2 is the scribe of F.I.R, PW-4 is relative of PW-1, a post occurrence witness. PW-6 is a

hostile witness, standing in front of whose tea stall, PW-1 could find his injured brother lying half dead on the bank of Matla river, and accused fleeing

away from the spot taking axe in his hand. PW-7 and PW-8 are the seizure witnesses in respect of a chappal and weapon of assault, said to have

been used in the instant crime. PW-9 is a van puller producing dead body of deceased to post-mortem doctor for autopsy. PW-10 is an autopsy

surgeon, while PW-11 is the Investigating Officer, who submitted charge sheet in this case. This is all about the evidence collected during trial of this

case.

Besides making oral submissions extensively, both parties to this Appeal furnished written argument each.

Appellant’s submission put forth may be adumbrated as hereunder.

A) Learned advocate for the appellant assailing the order of conviction contended that when complainant/PW-1 had been to the river side, situated to

the back side of his house covering a distance of about 1 ½ kilometre away from the house of PW-1 on the basis of sudden information, supplied by

unknown passer-by/van puller, it was quite impossible for PW-1 to view the accused fleeing away taking axe in his hand from the bank of the Matla

river, where the injured brother of PW-1 was lying half dead.

It was arduously submitted accordingly that when it was the specific evidence of PW-1 that when he left his house at the relevant point of time on the

basis of communication he received from unknown passer-by/van puller, all his family members were then sleeping, and when PW-1 further clarified

in evidence that after hearing hue and cry being raised by PW-1 himself, his two sons (PW-3 and PW-5) reached to him meanwhile, in such state of

evidence the appearance of two sons simultaneously with the presence of PW-1 could not be made possible, without intervention of time, and that

being the position PW-3 and PW-5 could not be considered to be eye-witnesses/direct witnesses having had their best opportunity to view the alleged

occurrence.

Adverting to the evidence of PW-3 and PW-5, learned advocate for the appellant submitted that in view of apparent discrepancies, contradictions

contained in the testimony of PW-3 and PW-5, they could not ultimately be described to be direct witnesses. It is according to appellant that when in

evidence PW-3 claimed to have viewed the incident appearing close to the place of occurrence much before the presence of his elder brother/PW-5,

as PW-5 arrived there at the moment when the dead body was being lifted to a van rickshaw for providing medical attention to injured, and PW-5

having himself contradicted with such situation avouching to have visited the place of occurrence much before the appearance of his brother/PW-3,

neither the testimony of PW-3, nor the testimony of PW-5 would be safe to be relied upon, for the strong and material discrepancy contained in their

statement, which is suggestive of embellishment and exaggeration, improvement of facts developed during trial of this case.

It was strongly contended by appellant that what could not be seen by PW-1 himself, that could not be expected to have been seen, and even viewed

something more with much clarity better than what actually PW-1 had seen, by PW-3 and PW-5, themselves, as they had the occasion to come to the

place of occurrence being attracted by alarm raised by PW-1 himself.

It was submitted accordingly that neither the evidence of PW-3, nor the evidence of PW-5 could be believed depicting them as direct witnesses

discarding the evidence of PW-1, and if done so, there would be a complete break of chain of events emanating from the circumstances. There could

not be made use of pick and choose method from any of the witnesses examined, like PW-1, PW-3 and PW-5, for roping the appellant in order to

sustain conviction without granting benefit of doubt, for apparent mismatch of evidence of witnesses, examined by the prosecution.

Invoking the provision of Section 173 (6) Cr.P.C. with a prayer for dispensation of those three (3) witnesses (PW-1, PW-3 and PW-5) from the

charge sheet submission was raised that any ground of reliance to any of the witnesses referred above ignoring the discrepancies and contradictions in

the evidence contained in them would not be possible, without favouring the principle of acquittal in favour of the accused on the ground of benefit of

doubt. More so it was contended that when there was strong variance with the testimony of the PW-5 as regards the number of blows caused to the

injured by assailant with that of the post-mortem report showing one fatal injury causing death of the deceased, there developed substantial doubt as to

the cause of death, and upon due appreciation of which, trial court ought to have acquitted the accused/appellant.

B) Learned advocate for the appellant with his usual vehemence submitted that in the instant case, the place of occurrence not being sufficiently fixed

and/or established during trial in evidence beyond all reasonable doubt, there could not be any order of conviction. The circumstances surfaced in the

testimony of PW-3 pertaining to place of occurrence varying from bank of river, back side of tea stall of Illias (PW-5) and a temple, left indication as

to place of occurrence, not being properly co-related with the rough sketch map prepared by the investigating officer, in violation of Regulation 273 of

PRB 1943 Vol-1, learned advocate for appellant proposed that the place of occurrence could be taken to be shrouded with doubt.

Learned Trial Judge having committed rudimentary breach by collecting evidence of PW-1 in absence of accused/appellant, i.e, prior to accused

being produced in court, there had been violation of mandatory provision of Section 273 Cr.P.C., and such evidence having collected behind the back

of the accused, it would be without any relevance, learned advocate for the appellant contended.

Much emphasis was led by learned advocate for the appellant on the police inquest, prepared at 7.30 hours in hospital on 15.05.2004 on the basis of

information being provided from Canning Hospital alleging the same to have been purposefully obfuscated. The police inquest was contended to have

been prepared in connection Canning P.S. Case No. 99/04 dated 15.05.2004 under Section 302 I.P.C., making the suppression of facts, and according

to learned advocate for appellant when F.I.R. was registered on the same date at 7.55 hours, i.e, admittedly after the police inquest was over, the

investigation was thus supposedly commenced on the basis of information already received in police station before proceeding for inquest over the

dead body, and as such the F.I.R. would be hit by Section 162 Cr.P.c. by operation of law. The sole purpose of the prosecuting agency was to

suppress the name of first informant with an aim to set free the actual assailant after causing material suppression of reference of U.D case.

It was strenuously contended by the learned advocate for the appellant that in making such material suppression, the investigating agency had

purposefully and deliberately made violation of Regulations 256 (duties of the investigating officer to consult connecting registers before proceeding to

investigate), 263 (duty of the investigating officer as to the maintenance of the case diary), 299(duties of the investigating officer for holding police

inquest) and 377 (duties of the police officer regarding maintenance of general diary) of P.R.B. In the absence of hospital doctor being examined

during trial of this case, the veracity as to bringing the body to hospital could not be proved, rendering the death of the deceased to be a doubtful

phenomenon.

Submission was raised by appellant that for want of examination of two independent seizure witnesses shown in the seizure list, marked as Ext.-7,

the recovery of weapon of assault was absolutely a suspicious one, and in a murder trial, the investigating agency having committed violation of

Regulations 256 of PRB read with Section 100 Cr.P.C., the alleged recovery ought not to have been taken into account, though it was allegedly shown

to have recovered during police custody period of seven (7) days commencing from 02.06.2004.

Claiming prejudice to have caused to accused/appellant for putting questions to accused/appellant during his examination under section 313 Cr.P.C.

by pick and choose method without application of judicial mind and without having understood the ramification of the question being put to accused,

learned advocate for the appellant contended that the manner in which the examination under Section 313 Cr.P.C. was held, was surely done

providing no sufficient opportunity to explain the circumstances put to him after comprehending the real purport of the question. Putting much stress it

was contended also that not even a single question was put to accused requiring explanation from him as regards the recovery of weapon, said to have

been used in committing death of the deceased, without which such evidence ought not to be relied upon.

Drawing irregularity in the charge framed in this case, learned advocate for the appellant submitted that the charge was framed in this case making

contravention of Section 211 Cr.P.C., inasmuch as, that in the referred charge there was nothing mentioned as to how the accused committed death

of the deceased, and for such irregularity in the charge, being the basic irregularity in the core of the prosecution, relying upon which the entire trial

was commenced, the conviction would not be sustainable on the basis of such defective charge.

Argument was put forward by appellant that best witnesses, like the passer-by/van puller, who conveyed the information first to the informant, and

independent witnesses of seizure, and independent witnesses of the locality, other than PW-1, PW-3 and PW-5, who are related by themselves with

the deceased, could not be examined and as such, the prosecuting agency could be safely taken to have withheld the best witnesses, indicative of

drawing adverse inference against prosecution under Section 114(g) of Evidence Act, and further the same consequence would follow for non-seizure

of blood stained earth or any blood stained material, though the same was fairly available before the investigating agency.

Respondent/State contested the appeal supporting the order of conviction and while countering the points raised by appellant submitted that the learned

Trial Judge had appropriately appreciated the evidence of direct witnesses in context with the principle, required to be adhered to for the existence of

ring of truth in their testimony rendering such testimony to be inherently probable and believable also. The points thus raised by appellant were

submitted to be without any substance, as the little departure of the provisions of the PRB, which is directory and advisory in nature, could not be

disputed so as to discard/disregard the evidence adduced by prosecution. The discrepancies attempted to be capitalised by appellant, according to

respondent/state would not matter much as they were not at all fatal for the prosecution being not material and major in nature.

We perused the evidence, heard the respective submission of the parties, considered their written argument, and we would now address the points

raised in this appeal by the discussion made hereinbelow for arriving at a rational conclusion.

The entire effort of learned advocate for appellant was to establish that the prosecution story of having caused death of deceased by accused with

use of axe in hand was improbalised due to the discrepancy, contradiction contained in evidence of PW-1, PW-3 and PW-5, and for such reasons

those three (3) witnesses cannot be considered to be direct witnesses, resulting in the instant case to be founded upon circumstantial evidence,

wherein the chain of events could not be made complete for the one of such events having broken already. The trial court based conviction accepting

PW-1, PW-3 and PW-5 to be direct witnesses for disclosure of their circumstances providing them sufficient opportunity to view the incident of death

on the relevant date. We must not be forgetful to take into account that the horrifying death was held on 15.05.2004, and in connection with which

PW-1 (66 years of old man) adduced his evidence on 13.07.2006, while PW-3 (29 years old man) adduced his evidence on 20th July, 2006 and PW-5

(34 years old man) adduced his evidence on 26th October, 2006. The prosecution led evidence projecting the place of occurrence to be situated on the

bank of Matla river passing through the Canning P.S.

Let us make an endeavour to appreciate the evidence in due discharge of our appellate authority for properly addressing the issue, strenuously raised

in this case. Admittedly PW-1 is elder brother of the deceased, while PW-3 and PW-5 are the two sons of Pw-1 and nephews of deceased. All the

three witnesses lived in same house, as PW-1 himself stated that his family comprised of his wife, his two sons and their wives and children. The

house of complainant is admittedly situated facing south on road. The river Matla flows from north to south. There is a temporary bathroom situated to

the back side of the informant’s house, intervened by a distance of 5 cubits away from the house. It is the evidence of PW-1 that on 15.05.2004 at

about 5.30 A.M. in the morning, while he was in his bathroom of his house, one unknown passer-by/van puller suddenly conveyed him a message

intimating that his brother Basudeb had been chased for wounding him by accused/appellant Bhombal, who is admittedly a nearby shop owner. After

being communicated with such information he left his house leaving behind a message to his family members, who were then admittedly sleeping, that

his brother was being assaulted. Purpose of PW-1 was, therefore, immediately to rescue his brother after finding him out. PW-1 rushed to the river

bank, where he found his brother Basudeb lying half dead from the shop of one Illias (PW-6, turned hostile). PW-1 clarified in his cross-examination

that the passer-by/ one van puller, who could not be examined during trial, raised alarm saying Basudeb to have been wounded, following which PW-1

rushed towards the spot wearing lungi without wasting any time, and also without being accompanied by any of his family members. Thus from the

shop of PW-6, on the way to river bank, he could view his injured brother lying half dead at the Matla river bank, and accused fleeing away with axe

in hand. Since intervening distance was not close for him, it was not possible for him, a short sighted person, to measure length and size of weapon

being carried then by accused. PW-1 never claimed to have seen the accused causing fatal blow to deceased brother with axe in hand. It is further

available from the evidence of PW-1 that Canning market is large one, situated at a distance of about 2(two) minutes walk from his house, and by this

side of which there lies Harighata market. Referred Harighata would sit in front of the house of complainant. The intervening distance connecting the

house of complainant/PW-1 and the Canning market through Harighata is about two (2) minutes’ walk, though the Canning P.S. is situated at a

distance of half kilometre away from house of complainant. It is thus clear that though Canning market is not in close proximity to the house of

complainant/PW-1, but it is not far off from his house, as Harighata market is there to connect Canning market, and that Harighata market sits in front

of the house of complainant. At the back side of the house of complainant there lies a high road called Metho road, intervened by a distance of 25

cubits away from the house of the complainant, and the river Matla. The height of such Metho road is about 2½ cubits.

Deceased brother of complainant had a business of wood, having his house by the side of the shop of accused Bhombal, which is also situated by the

side of tea stall of Illias (PW-6) at Harighata. Thus while PW-1 going for rescuing his injured brother from the clutches of his assailant, pursuant to

intimation furnished to him suddenly by unknown person, his direction of movement was to reach Harighata market, which is merged with Canning

market, situated at distance of two (2) minutes’ walk from his house, not by traversing a distance of 1½ kilometre away from his house, as

contended by appellant, where the shop of accused Bhombol as well the house of deceased is situated in close proximity of each other.

PW-1 further clarified in his cross-examination that meanwhile, after hearing hue and cry raised by himself, his two sons (PW-3 and PW-5) came to

his wounded brother and his two sons carried the body of his injured brother to hospital with the help of a van puller, the name of which was disclosed

by PW-3 in his cross-examination as Bhuvan @ Bhulo. Pertinently a look to the testimony of sons of PW-1 is necessary to find corroboration.

Son PW-3 stated in his ocular testimony that he found accused/appellant causing assault to deceased when he was going towards the river side on the

relevant date to ease out and the injured Basudeb cried receiving assault saying “maris na†“maris naâ€. According to PW-3 deceased

sustained injuries on his throat and arm. He also found accused fleeing away from the place of occurrence. As regards the place of occurrence,

where the dead body was found lying, PW-3 stated that deceased was found lying at the back side of a tea stall and temple. PW-3 claimed to have

arrived at the place of occurrence within two (2) minutes from river bank where he was easing out at the relevant morning. PW-3 gave out claiming

his appearance at the place of occurrence little before the appearance of his brother/PW-5 over there, as while PW-3 was lifting the body of Basudeb

to the van, his elder brother (PW-5) then ensured his appearance, and they together lifted the body of deceased to van rickshaw for carrying it to

hospital.

The I.O./PW-11, however, contradicted such evidence of PW-3 by stating to the effect that PW-3 did not state to him (I.O.) that PW-3 had been

going towards the river to ease out, or that he (PW-3) saw Bhombal to assault Basudeb and Basudeb cried by saying “maris na†“maris naâ€

or that despite that Bhombal wounded deceased with axe.

In view of such non-disclosure or omission of material facts to I.O during the course of investigation by PW-3, the very claim of presence of PW-3 at

the scene of crime enabling him to view the incident, while causing death of the deceased by accused/appellant will result in rejection of his testimony,

as his credibility suffered a great blow by reason of such contradictions discussed above, and thereby disputing his presence at the scene of crime and

providing also no scope to claim him (PW-3) to be a direct witness to the incident in this case.

PW-5 being another son of PW-1 and elder brother of PW-3, however, consistently narrated in his evidence giving vivid description of the offence

pointing to the guilt of the accused inclusive of his own role performed at the time of actual occurrence. He stated graphically in his evidence that on

the relevant day and point of time after waking up from sleep, while he was going towards bathroom by the side of river, he found altercation taking

place between the deceased and accused/appellant. He noticed accused/appellant taking towards the bank of river Matla, assaulting him, when he

forbade accused/appellant from assaulting injured. In his clear version, PW-5 stated categorically that accused/appellant wounded Basudeb/deceased

with an axe in hand, and then fled away. He claimed to have tried to intercept the accused/appellant, but accused fled away holding out a threat to him

after causing injury on the right arm and throat of deceased. He further clarified in his cross-examination that tea stall of Illias (PW-6) is situated by

the side of road running in front of his house. The shop of Illias, according to PW-5, is visible, while coming out from the front gate of his house. After

walking along the road towards river for about 50/60 cubits, PW-5 had the occasion to hear an altercation held between deceased and

accused/appellant. There are as many as 7 rooms between the house of PW-5 and the tea stall of Illias/PW-6. Each of such 7 rooms is intervened by

a distance of about 10 cubits away from each other. In all his exercise of establishing the place of occurrence, PW-5 most candidly clarified in his

cross-examination that the dead body of Basudeb was found lying at a place which is about 50/60 cubits away from the shop of Illias/PW-6. Such

description of place of occurrence, as offered by PW-5 would undoubtedly identify the place of occurrence to be at bank of river Matla, which is

easily accessible from the house of complainant, without wasting much of time. He described the reasons as to why he could not intercept the

accused appellant while fleeing away by stating to the effect that since accused held out threat to him with his axe in hand so he could not dare to

catch hold of him.

Apart from this, PW-5 stated the number of blows caused by accused/assailant to injured since the time of his chasing the injured till his falling down

to river bank and the consequence that ensued thereafter to injured. Thus according to PW-5, he found accused causing three (3) strikes with use of

axe in hand resulting in death of deceased. The place of occurrence appears to have been more powerfully described identifying it to be Matla river

bank situated at a distance of 50/60 cubits away from tea stall of Illas (PW-6), wherefrom PW1 could first view his injured brother lying half dead,

and accused fleeing away taking weapon of assault in his hand. That being the position the place of occurrence, in our considered view, appears to

have been clarified in a perspicuous manner providing intelligible description of incident together with location of P.O. with all lucidity, which can

safely to be taken to be within 150/200 cubits away (approx.) from the house of de-facto complainant, and thereby receiving a fair match with the

testimony of PW-1, claiming the distance of his house to be two (2) minutes’ walk (approx.) from Canning market, which is merged with

Harighata.

Though PW-5 most specifically stated that he found accused/assailant causing three (3) strikes with the use of axe in hand, but the autopsy

surgeon/PW-10 having found two injuries, one of which being simple in nature and another being fatal in nature sustained on throat of deceased, the

same would not ipso facto improbalise the ocular testimony of direct witness like Pw-5 keeping in view that all the strikes dealt with actually might not

have hit the injured vitally so as to become a fatal blow. The testimony of PW-5 consequently cannot be looked with doubt on the ground of number of

injuries sustained by deceased being distinctly not comparable with the number strikes dealt with.

It was contended that testimony of PW-3 and PW-5 is contradicted by each other, because PW-3 claimed to have visited place of occurrence prior to

causing appearance of PW-5, but PW-5 declined the same claiming to have visited the place of occurrence much before the appearance of PW-3.

Such discrepancy would not matter much, because there left no substantial contradiction in between the version of PW-5 and the I.O. (PW-11),

wherein I.O. himself stated in his cross-examination that PW-5 stated before him that PW-5 had chased Bhombal, and thus the contradiction sought to

be capitalised by accused/appellant got absolutely diluted restricting the accused/appellant from having any benefit therefor.

The significant aspect to be noted is that all on a sudden at the early morning on the relevant date, the complainant was supplied with an information

by unknown person conveying an attack by accused/appellant upon his brother for causing him wounded. With sudden receipt of such information, the

family members of complainant were taken to surprise in no point of time. PW-5 being son of the PW-1 was attracted by altercation having held

between the deceased and assailant, while going for nature’s call at the river side in the morning to ease out. When PW-1 himself stated in his

evidence that meanwhile being attracted by the alarm raised by himself, his sons joined there, and thus PW-5 was left with sufficient opportunity to

view the incident, what he actually narrated in his evidence.

As has already discussed that for absence of strong discrepancy/contradiction in the testimony of PW-5, a direct witness to the incident, it stands to

reasons that PW-5 would be given precedence to the evidence of PW-3. Now the question is whether such preference is right to be exercised in the

given context of this case, and whether such exercise is permissible or not. Upon considering the evidence of PW-5 as a whole in its entirety, it

appears that there is an element of truth, a sense of assurance inspiring confidence for presence of a ring of truth therein rendering his testimony to be

most probable, believable and acceptable also.

Reliance was placed by respondent/state on this issue on a decision reported in AIR 2019 SC 381 delivered in the case of State of Madhya Pradesh

Vs. Chhaakki Lal and Anr. in order to establish that it would be unreasonable that the discrepancies which would not shake the credibility of the

witness, the basic version of the prosecution case, the testimony of such witness cannot be discarded. It would be profitable her to refer paragraph 22

of such decision as mentioned hereunder :

“22. In our considered view, the High court erred in doubting the testimony of Kesar Bai (PW-1). It would be unreasonable to contend that merely

because Kesar Bai (PW-1) is related to the deceased and that there were contradictions in her evidence, her evidence has to be discarded.

Discrepancies which do not shake the credibility of the witness and the basic version of the prosecution case are to be discarded. If the evidence of

the witness as a whole contains the ring of truth, the evidence cannot be doubted. In Prithu alias Prithi Chand and Another v. State of Himachal

Pradesh (2009) 11 SCC 588: it was held as under:-

“14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217, it was observed that undue importance should not be attached to

omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A

witness cannot be expected to possess a photographic memory and to recall the details of an incident verbatim. Ordinarily, it so happens that a witness

is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot,

therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses.†The

same principle was reiterated in State of U.P. v. M.K. Anthony (1985) 1 SCC 505: AIR 1985 SC 48)â€​

The test to ascertain the ring of truth in the evidence of a witness is, whether such evidence is cogent, credible, trustworthy and otherwise.

While making appreciation of evidence of witnesses, it would be most unreasonable to attach undue importance on the omission, contradiction and

discrepancy in evidence, as contended by appellant, not going the root of the prosecution, and not shaking the basic core version of prosecution, simply

to discredit the version of witness like PW-5, for the same being cogent, credible and trustworthy revealing presence of a ring of truth, an element of

assurance therein, and accordingly the same would be preferred, in comparison of PW-3.

Upon applying the same principle, while appreciating the evidence of PW-1 as a whole, it appears that same will surely inspire confidence of court in

accepting his version. The omission/minor discrepancy contained in the testimony of PW-1 is bound to occur keeping in view that confounded elder

brother of the deceased cannot be expected to give an account of his memory after recalling the details of incident in verbatim, because PW-1 was

taken to surprise by reason of horror of death, which is likely to be overtaken by subsequent events. The mental faculties of PW-1 may not allow him

to posses photographic memory of the incident for recalling the same whenever needed at his 66 years of age, and thus the mental faculty of PW-1

together with his power of vision is not comparable with his son PW-5, who adduced his evidence at his 34 years of age. True it is that PW-1 failed to

account for the details of incident specifically the manner of assault what had been graphically described by PW-5 himself in his testimony, but the

same would not lead to create a vital omission on material particulars so as to derive capital therefrom, favourable to the purpose of defence.

The death the deceased cannot be disputed for lesser number of injuries being sustained by the deceased, when compared with the number of strikes

dealt with by the assailant, on the simple ground that there was sufficient co-relation between ocular testimony of PW-5 with that of the autopsy

surgeon, and at any rate such ocular testimony of PW-5 cannot be branded to be mismatch with that of autopsy. The fatal injury having occurred on

the neck/throat of the deceased, which was sufficiently noticed by both PW-1 PW-5 in an unqualified manner, would surely connect strikes of

assailant with the injury of the deceased so as to become fatal for ultimate purpose.

The severity of the injury sustained by the deceased was noted by the autopsy surgeon describing in his evidence that there was an incised wound

across the throat measuring about 3â€​ x 1â€​ and in consequence therefor, the trachea was incised along with big vessel, which was sufficient to cause

his death. Another injury sustained by the deceased was, however, mentioned to be simple in nature. Therefore, the incised wound across the throat

was proved to be the direct consequence of strike caused by the assailant upon deceased. It is settled proposition of law that in a murder trial, the

intention of the assailant need not be gone into, however, the severity and brutality of the injury sustained by deceased was sufficient enough to

demonstrate the culpable intention on the part of the assailant to cause death of the deceased.

The testimony of PW-1 and PW-5 having received sufficient corroboration from the version of autopsy surgeon, the guilt of the accused cannot be

given a go-by for any minor discrepancy or omission. The occurrence having witnessed by PW-5, and further complainant/PW-1 having noticed

accused/appellant going away with axe in hand from place of occurrence, there left no scope for the prosecution case to stand upon circumstantially,

as contended by appellant.

The prosecution case was alleged to be a defective episode for want of place of occurrence being established/identified in the instant murder trial.

According to appellant the place of occurrence is variable one as was specifically disclosed by PW-3 in his testimony. Referring relevant provisions of

PRB attempt was made that there had been departure by the prosecuting agency in depicting the place of occurrence more transparently and in a

lucid manner. Thus, contention was, the conviction could not be sustained for want of place of occurrence being specifically identified in murder trial.

Countering the submission raised by the appellant, respondent/state that in view of the extensive cross-examination of PW-5, there could not be any

ambiguity so as to identify the place of occurrence.

Surprisingly the I.O./PW-11 could not be cross-examined in so many words with regard to identification of the place of occurrence, who was the best

person to answer the issue. In our preceding discussion, the place of occurrence having conspicuously described in the testimony of PW-1 and PW-5,

which was about 150/200 cubit away (aprox), quite easily accessible from the house of complainant, and also being on the bank of Matla river, there

remained no hurdles to get the place of occurrence most specifically identified. There might be some latches or inconsistencies in the rough sketch

map, prepared by I.O., but upon noticing the fault of such investigation, accused cannot be favoured with acquittal.

There is strong force in the submission raised by respondent/state that provisions contained in the PRB are directory and advisory in nature, but not

mandatory at all. The investigation, as conducted in this case, should not be taken to doubt critising the latches in adhering to the provisions

incorporated in PRB, for the simple reason being the same to be directory and advisory in nature. The argument thus raised by appellant disputing the

place of occurrence would thus be without any significance.

Regarding inhibition contained in Section 273 Cr.P.C. that the evidence of witness, in course of trial, cannot be taken in absence of accused, it

appears from the lower court record that evidence of PW-1 was collected on 13.07.2006, when the learned lawyer representing the accused was very

much present, and preferred to cross-examine the witness (PW-1) extensively for putting up the best defence of accused/appellant, and thus availed

of the opportunity from without becoming un-defended.

Admittedly during the evidence-in-chief taken down on 13.07.2006 accused could not be produced in court by that time, and in that context, PW-1

fairly answered that he could have identified the accused in court, had accused been present in court that day. After PW-1 faced with the ordeal of

cross-examination most extensively, accused was produced in court on the same date, and when witness/PW-1 identified him in court going near to

the accused dock stepping down from witness box for his short sightedness. It was thus sufficiently established that even after availing of the

opportunity of cross-examination on two occasions on the self-same date, one during evidence-in-chief, and another during evidence on recall, the

evidence of PW-1 cannot be contended to have taken down in his absence, causing a mandatory breach of provision of Section 273 Cr.P.C.

Accordingly we are not prepared to accept such contention that evidence of PW-1 was taken down in absence of accused committing a mandatory

breach of provision of Section 273 Cr.P.C.

4 The genesis of the prosecution was challenged by learned advocate for the appellant contending the FIR to have been hit by Section 162 Cr.P.C. by

operation of law, for police inquest having held on 15.05.2004 at about 7.30 hours in connection with Canning P.S case 99/04 dated 15.05.2004 under

Section 302 Cr.P.C., pursuant to receipt of information in police station paving the way for commencement of investigation. It was argued that when

police proceeded for holding inquest in connection with specific Canning P.S. case, the police had already received information leading to death of

deceased for the commencement of investigation, which remained purposefully suppressed. Drawing our attention to the evidence of I.O. (PW-11), it

was submitted that though inquest was held in connection with U.D. case, but the reference of which could not be disclosed, and when I.O. himself

admitted to have held the inquest in connection with Canning police case 99/04 dated 15.04.2004, there left sufficient reasons for the strict application

of Section 162 Cr.P.C. to hit the instant FIR. The commencement of investigation on the basis of such suppressed FIR was alleged to hit the F.I.R.

under Section 162 Cr.P.C.. Replying to the contention raised by the appellant, on this point, learned advocate for the respondent/state submitted that

mere technicalities, if therebe any, would not per se pave the way for acquittal.

Admittedly reference of U.D case number in connection with inquest remained undisclosed. The purpose of holding inquest is to reveal the apparent

cause of death describing wounds, fracture, bruises and other marks of injury, as may be noticed on the body and stating in what manner or by what

weapon, such marks appeared to have been inflicted. The police inquest is supposedly held pursuant to receipt of an information, not necessarily to be

furnished by any of the aggrieved persons of deceased. The informant in context with Section 174 Cr.P.C need not be necessarily same and

synonymous with Section 154 of the Code of Criminal Procedure. It is thus police inquest over the dead body of the deceased was held pursuant to

the information received from Canning hospital. Admittedly the inquest was held in hospital. FIR is not a statement under Section 162 Cr.P.C.. The

settled proposition is that there cannot be an investigation before FIR is registered. The question whether investigation had commenced or not is a

question of fact and it does not depend upon any irregularity committed by the police officer in the matter of recording the first information. Merely

because the FIR was registered in P.S. at about 7.55 hours on 15.05.2004, admittedly 25 minutes after the police inquest was held in this case the

same would not itself would leave materials to hit the instant F.I.R. Every breach of provisions of Section 162 Cr.P.C. does not vitiate the trial, it

would depend on whether the admission of inadmissible evidence has caused prejudice to accused or not. Though it was contended that First

Information Report was deliberately suppressed, but all the witnesses including the complainant having supported the version of F.I.R, which was duly

proved in evidence, there left hardly any occasion for the FIR to be hit by Section 162 Cr.P.C.. Without proof of prejudice to have caused to

accused/appellant by reason of the commencement of the investigation in utter disregard of the information, which the police had within the meaning

of Section 154 Cr.P.C. if therebe any, the FIR cannot be allowed to be hit by Section 162 Cr.P.C. In our considered view, such argument, as raised by

the accused/appellant, would be without any substance.

The seizure of weapon of assault, according to appellant, was doubtful and the propriety of such seizure could not be testified during trial for

absence of any public witnesses being examined. PW-11, besides holding police inquest over the dead body of the deceased, vide exhibit-‘6’,

proceeded to recover the weapon of assault, being an axe, on 05.06.2004 for the deceased having suffered death on 15.05.2004. There was another

seizure of chappal, vide Exhibit-‘2’, stated to be seized from the bank of Matla river, near 2 No. Ferighat, Harighata adjoining to Canning

market. PW-7 and PW-8 are the accompanying constable of PW-11, while holding seizure of such chappal vide Exhibit-‘2’. Both chappal and

the seized weapon were produced during trial, which was identified by I.O. himself, and marked as material Exhibit-‘1’ and ‘2’

respectively. Respondent/state candidly submitted that the seizure of the weapon, though could not be considered under Section 27 of the Indian

Evidence Act, but the propriety of such seizure, as proved by I.O. himself, who conducted the seizure, could not be disputed for public witness to the

seizure remaining unexamined.

Admittedly formalities of seizure, as required to, be adhered to so as to come within the meaning of Section 27 of the Indian Evidence Act, remained

uncomplied with, therefore there left no scope for Section 27 of Indian Evidence Act to come into operation.

Referring decision reported in 2019 (5) SCC 646 delivered in the case of Kripal Sing vs. State of Rajasthan, learned advocate for the respondent/state

submitted that the recovery held by the seizing officer would not be belied for absence of public witness being examined. It would be most pertinent

here to refer para 21 of such judgment, as mentioned hereinabelow:

21.The submission of the learned senior counsel for the appellant that recovery has not been proved by any independent witness is of no substance for

the reason that in the absence of independent witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is

no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the evidence of

police officials can be outrightly disregarded.

Though learned advocate for the appellant tried to distinguish the applicability of such judgment over the facts and circumstances of this case referring

Section 100 of Cr.P.C. and relevant provisions of the PRB, but no separate judgment was referred by appellant to counter the aforesaid proposition of

law. Thus relying upon such judgment, as referred by the respondent/state, the recovery of weapon of assault though cannot be construed to be one

under Section 27 of Indian Evidence Act, but the same may be taken into account as a simple recovery, done by I.O. himself during continuance of his

investigation. The submission so offered by appellant disputing with the recovery would be thus without any relevance.

As regards the prejudice stated to have caused to accused during his examination under Section 313 Cr.P.C. by putting questions in pick and

choose manner without putting a single question as regards the recovery of weapon of assault, it appears that several questions were put to

accused/appellant providing sufficient scope to comprehend the real purport of the questions for explaining the same. By doing such exercise the Trial

Judge appears to have appropriately exercised his authority with an avowed object for obtaining explanation from accused in respect of the

incriminatory evidence brought against him without exercising any discretion. Though our attention was drawn to several questions being put to

accused during his examination under Section 313 Cr.P.C. alleging the same to have contravened the avowed object of Section 313 Cr.P.C., but there

was hardly any element justifying prejudice to have caused to accused thereby for such alleged irregularity, if therebe any. The settled proposition is

that, that part the evidence collected during trial remaining unexplained by accused himself, for want of any specific question being put to that effect,

such part of the evidence will not to be accepted. True it is that there could not be any question put to accused during his examination under Section

313 Cr.P.C. pertaining to the recovery of weapon of assault, vide Exhibit-‘7’, but it more true it is that there is direct witness, like PW-5 having

had his opportunity to view the incident as to how the deceased suffered death by accused/assailant, whose ocular version should not be rendered into

trash taking plea of prejudice. We cannot be forgetful that there was a seizure, vide Exhibit-’7’, showing recovery of weapon of assault,

bearing signature of the accused in the seizure list. The significant question requiring answer on this issue is whether absence of any question in 313

Cr.P.C. being put to accused over a recovery of weapon of assault would per se improbalise the entire ocular testimony of PW-1 and PW-5 or not. In

any event, if the recovery be disregarded, failure of any question being put to accused over the recovery of weapon of assault during his examination

under Section 313 Cr.P.C.,, we are of the considered opinion that such error or departure would not vitiate the trial giving a complete disregard to the

testimony of direct witnesses like PW-1 and PW-5. The point so canvassed by accused/appellant on such issue would be not acceptable.

Regarding defect of charge, alleged to be violative of Section 211 Cr.P.C. for not mentioning in the charge as to how the accused committed death,

it appears to us that such omission, never at all caused any prejudice or misled the accused occasioning thereby a failure of justice. In criminal trial the

charge carries the entire edifice of prosecution. Regarding particulars of charge as to the date time, place and person, have been elaborately taken

care of under Section 211 Cr.P.c. and 212 Cr.P.C.. Charge is nothing but it amounts to providing a notice or intimation giving a clear message in an

unambiguous terms about acquisition in precise manner, which accused is supposedly called upon to answer the same in course of trial.

Upon perusal of the charge framed, it appears that time of commission of death precisely was not mentioned there. Though the manner in which as to

how deceased suffered death by accused was not mentioned, but accused was at best provided with an acquisition to have caused death of deceased

on the relevant date and that too at the bank of river, situated within P.S. Canning near Harighata. Standing on such acquisition the accused/appellant

participated in the trial adopting extensive cross-examination to witnesses examined by prosecution for the purpose of putting up his best defence

available to him. From the scheme of cross-examination adopted, it appears to us that by reason of such error or omission neither there was any

prejudice, nor accused was misled in course of his trial to answer the charge framed against him, far to speak of occasioning a failure of justice. In

view of the provision contained in Section 215 Cr.P.C. unless the accused suffered prejudice or misled by such error or omission, there cannot be a

failure of justice. So defect in the error, as contended by the appellant, is without any substance.

Strong argument was raised by learned advocate for the appellant contending that witnesses examined in this case are partisan and in spite of

availability of independent witnesses, the public witnesses were purposefully withheld rendering the prosecution case to be a attracted by the mischief

of Section 114(g) of Evidence Act. It was also proposed by the appellant that the van puller furnishing the information first to complainant/PW-1, the

hospital people, where inquest was held, and the nearby people residing around the place of occurrence remained unexamined, though there was

sufficient scope for examination of the same as the place of occurrence is near to Canning market place, where several people can be expected to be

remain present even in the morning.

Reliance was placed by respondent/state on a decision reported in (2020) 1 C Cr. LR (Cal) 111 rendered in the case of Sanaul Islam vs. State of

West Bengal, while countering the stand of appellant on such issue that merely because an eyewitness was related to the deceased, even if

contradiction are found in his evidence, the same could not be discarded, if his credibility was unshaken.

Our legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses.

It would have been unreasonable on our part if we could have mechanically rejected such evidence available on record on the sole ground that it was

partisan, would invariably led to failure of justice. What is more required in such context is the close scrutiny of such partisan witnesses. Upon

applying such principle of close scrutiny of evidence of witnesses, who are relatives of the deceased, it appears that testimony of PW-1 and PW-5 are

inherently probable being intrinsically reliable. The credibility of such witnesses not being shaken to doubt and thereby the core of the prosecution

remaining unaffected, the minor omission, inconsistency, discrepancy and contradiction would not matter much, so as to brush aside the entire

testimony of such partisan witnesses.

The occurrence having held at early part of the morning on the bank of Matla river, where ordinary presence of people cannot be expected over there

compared to a market place. In that perspective of prosecution scenario, the testimony of PW-1 and PW-5 cannot be disputed taking the ground of

plurality of available witnesses remaining unexamined.

Accordingly we are not impressed by the argument, as put forwarded by appellant on such issue.

Argument was also canvassed by appellant submitting that learned Trial Court ought to have favoured the principle of acquittal in favour of the

accused in exercise of the ground of benefit of doubt keeping in mind the contradiction contained in the testimony of PW-1 and PW-3 and PW-5

together with absence of a prayer being initiated by I.O. of this case under Section 173(6) Cr.P.C. claiming dispensation of those three witnesses. The

freedom of investigation though can be overseen, but cannot be interfered with. It is absolutely prerogative/discretion of the prosecution as to how the

prosecution would establish a case against the assailant in context with the parameters of the Code of Criminal Procedure. In our considered view

there is hardly any scope for application of Section 173(6) Cr.P.C. prohibiting the Trial Court from doing due appreciation of the witnesses examined

by the prosecution including the direct witnesses/eye witnesses. As matter of fact the credibility of such witnesses like PW-1 and PW-5 cannot be

doubted anymore under the behest of Section 173(6) of Cr.P.C.

There might be some error little departure in adhering to the provisions of law, while conducting investigation, but the law in this issue is well settled

that the defect in investigation by itself cannot be a ground for acquittal. If primacy is given to such design or negligent investigation or to the omissions

or lapses of investigation, the faith and confidence of the people in criminal justice delivery system would be eroded. This was the view taken by the

Apex Court, while deciding a case reported in 2011 3 SCC 654 in the case of Sheo Shankar Singh vs. State of Jharkahan.

Undoubtedly some minor discrepancies or variation are traceable in the statement of witnesses, but the same are ignorable. Relying upon a decision

reported in 2012(7) SCC 646 rendered in the case of Shyamal Ghosh vs. State of West Bengal, learned advocate for the respondent/state submitted

that every variation would not be enough to adversely affect the prosecution case, unless the variation affects the prosecution substantially. Upon

close scrutiny of the statement of witnesses in particular PW-1, PW-5, PW-10 and PW-11 in its entirety and reading the same together as a while for

arriving at a rational conclusion therefrom, we are not unable to see any material or serious contradiction in the statement of such witnesses, which

may give any advantage to the accused. The role of the accused/appellant being discernable from the injury sustained by the deceased/appellant

would amount to murder, and none of the exceptions provided under Section 300 IPC would apply to the present facts and circumstances in the case.

It would be failure on our part, if we do not mention that though learned advocate for the appellant did not refer any decision independently running

counter to the decisions relied upon by state/respondent, but in his ingenuous way, he sincerely made his effort to distinguish such judgments alleging

such judgments to be in applicable over this case for the peculiarity of the circumstances involved in this case, which we do find reasons to agree with

the same.

For the discussion made above, we are of considered view that evidence of PW-1, PW-5 together with autopsy surgeon being consistent and reliable

in their respective version, we hold that only unmistakable inference would go in favour of the culpability of the accused/appellant, who committed

brutal death of the deceased. The occurrence being witnessed by aforesaid witnesses (PW-1 and PW-5), it would not stand to reasons that the case is

founded upon circumstancial evidence. The injuries sustained by the deceased were itself determinative of the motive of accused/appellant. The

conviction thus reached by the Trial Court would thus go uninterfered with. The sentence accordingly will remain undisturbed.

We thus dismiss the appeal maintaining the conviction and sentence, awarded by the Trial Court.

Department is directed to send a copy of this judgment along with Lower Court Record to the concerned Trial Court without causing any delay

through the concerned District Judge.

Department is further directed to send a copy of this judgment to the concerned correctional home.

Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary

formalities.

I agree.