Krishna Singh Sardar vs State of West Bengal & Ors

Md. Mumtaz Khan, J.

This appeal has been preferred by the appellant assailing the judgment and order of conviction dated April 16, 2004 and sentence dated April 17, 2004

passed by the learned Additional Sessions Judge, Fast Track Court No. 1 in Sessions Trial No. 47 of 2003 arising out of Sessions Case No. 109 of

2003 convicting the appellant for commissioning of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC)

and sentencing him to suffer rigorous imprisonment for life and fine of Rs. 1000/- in default to suffer simple imprisonment for one month with a

direction for usual set off under Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.).

Prosecution case, in brief, is that on September 19, 2001 at about 19.00 hrs appellant called the victim, Hatilal Singh Sardar, from his house and gave a

blow with an axe on the head resulting in his death and thereafter surrendered at the P.S. with the axe. On the basis of the written complaint of

P.W.1, scribed by P.W.2, Balarampur P.S. Case No. 53 dated September 19, 2001 under Section 302 IPC was started against the appellant by

P.W.12 and he himself took up investigation of the case. On September 20, 2001 in the morning at 07.05 hrs., P.W.12 held inquest over the dead body

of the victim at the place of occurrence and prepared a report (Ext.2). He, thereafter, sent the dead body to Sadar Hospital Purulia for post mortem

examination.

On September 20, 2001 at 14.00 hours, P.W.14 conducted post mortem examination over the dead body of the victim and prepared a report (Ext.9).

During postmortem examination, P.W.14, the doctor, found several sharp cut and lacerated wounds on the scalp, right forearm, penetrating wounds on

the right side of chest as also over posterior wall of right axillary and opined that death was due to shock and heamorrhage associated with head

injuries which are ante mortem and homicide in nature caused by heavy sharp cutting and sharp pointed weapon.

P.W. 12, during investigation, seized one blood stained axe having wooden handle (Ext.4), blood stained wearing apparels of the deceased (Ext.7),

blood stained earth along with control earth (Ext.3) and, thereafter, sent the same to the FSL through SDJM Purulia by a chalan (Ext.8). Subsequently,

on account of transfer of P.W.12, case was endorsed to P.W.10 on January 16, 2001 for investigation who then on completion of investigation

submitted charge sheet against the appellant under Section 302 of IPC.

On September 9, 2003 charge under Section 302 IPC was framed against the appellant and on his pleading not guilty trial commenced. Prosecution in

order to prove the case examined 14 witnesses and also produced and proved the FIR, seizure lists, rough sketch map with index, inquest report, PM

report, challan through which seized articles were sent to FSL for examination etc. and, thereafter, on completion of trial after examination of the

appellant under Section 313 Cr.P.C, the learned Trial Judge passed the impugned judgment.

Mr. Moinak Bakshi, learned advocate for the appellant submitted that the judgment and order of conviction and sentence passed by the learned trial

court are not sustainable in law for the following reasons:

There was no eyewitness to the incident and the entire case is based on circumstantial evidence but the prosecution has failed to complete the chain

of circumstances. 2. The written complaint as also the evidence of P.W.1 is silent with regard to witnessing the incident by P.W.1. So, his evidence

before the court that he stated to the I.O. that he saw the appellant to assault is not believable as there is no direct evidence during his entire

deposition.

The evidence of P.W.2 is also not believable being contradictory with regard to the time of their visit at the P.S. as once he stated that they went to

the P.S. at 7 p.m. but at another place he stated that they went to the P.S. at 11 p.m. If P.W.1 went to the P.S. at 7 p.m. and lodged the FIR then the

endorsement made in the FIR that it was received at 23.25hours is not believable.

The claim of P.W.1 and P.W.2 that appellant surrendered at the P.S. with blood stained axe during their presence is not believable if their story is

believed that they went to the P.S. at 7 p.m. and remained there for one hour only.

No such weapon of offence was produced during trial nor there was any such report of forensic expert to prove that the weapon had any human

blood nor the same was shown to the autopsy surgeon during postmortem examination.

Prosecution has failed to prove the motive behind the incident of murder of the victim. According to Mr. Bakshi prosecution has failed to prove the

charge of murder against the appellant beyond all reasonable doubts. Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State

submitted that the evidence of P.W.1, son of the victim, is very specific towards the involvement of the appellant in the commission of the offence and

his credibility could not be shaken by the defence.

He also submitted that appellant immediate after committing the offence surrendered at the P.S. with blood stained axe which was seized by the

investigating officer and both P.W.1 and P.W.2 were the witnesses to the incident of surrender of the appellant at the P.S. According to Mr. Ranabir

Roy Chowdhury, it was the appellant who called the victim and the dead body of the victim was found in front of the house of the appellant and the

appellant fled away from the place of occurrence and thereafter surrendered at the P.S. with the arm which proves the culpability of the appellant.

According to Mr. Roy Chowdhury prosecution has been able to prove the charge against the appellant beyond any doubt.

We have considered the submissions of the learned counsels appearing for the respective parties and have given our thoughtful consideration to the

evidence and the materials on record to consider the propriety of the impugned judgment and order passed by the learned trial judge. It was not in

dispute that the victim Hatilal Singh Sardar died on September 19, 2001 and his death was unnatural. It was also evident from the evidence of the

doctor (P.W.14) and the PM report (Ext.9) that on September 20, 2001 at 14.00 hours, during post mortem examination over the dead body of the

deceased, doctor found sharp cut injury over right parietal region of scalp-- 4'' length x 1'' gap x bone cut brain matter seen through the wound, sharp

cut injury-- 3'' in length x ¾ '' gap x bone cut and brain deep over right post curricular region of scalp, sharp cut injury over right side of frontal

region of scalp-- 2'' length x ½ '' gap x bone deep, sharp cut injury over frontal region of scalp-- 1'' length x 1/4'' gap x bone deep, sharp cut injury

over left temporal region of scalp-- 1 ½'' length x ½ '' gap x bone deep, lacerated wound over left parietal region of scalp 1'' length x scalp deep

â€" no gap, sharp cut injury over posterior aspect of left parietal region of scalp --2'' length ½'' gap x bone deep, lacerated wound over Felxor aspect

of right forearm near right cubital fossa-- 4'' x ½ '' gap x skin deep, penetrating wound over right side of chest in right 5th intercostal space in mid

axillary line 1'' length x entering right pleural cavity, penetrating injury over posterior wall of right axillar 1 ½'' length x 2'' deep x ¼'' gap and opined

that death was due to shock and heamorrage associated with head injury as a result the above mentioned injures which were ante mortem and

homicidal in nature caused by heavy sharp cutting and sharp pointed weapons and that the sharp cutting injuries may be caused by sharp edge of an

axe. Defence did not dispute or deny the above injuries found on the person of the victim during postmortem examination and the cause of his death.

Learned court below in convicting the appellant took into consideration the circumstances which resulted in the death of the victim namely on the

relevant evening at about 7 P.M. appellant called the victim from his house to his house and immediately thereafter on going there P.W.1 found the

dead body of his father bearing several sharp cut injuries lying in the house of the appellant, the dead body of the victim bearing sharp cut injuries lying

in the house of the appellant was also seen by P.W2,P.W.3 and P.W.5 and after the incident appellant surrendered with blood stained axe at the P.S.

in presence of P.W.9 and P.W.11 corroborated by P.W.1 and P.W.2 which was seized by P.W.12 by a seizure list and he apprehended the appellant,

blood stained earth was also seized from in front of the house of the appellant and also the evidence of P.W.14, the autopsy surgeon, who found sharp

cut injuries on the person of the deceased and opined that death was due to shock and hemorrhage associated with head injures which were ante

mortem and homicidal in nature caused by heavy sharp cutting weapon like axe.

In the case at hand, we find that none of the witnesses examined by the prosecution was witness to the occurrence and the entire case is based on the

circumstantial evidence. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt

can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. The chain of

circumstance should be of a conclusive nature and must be complete and most clearly point out to the guilt of the accused. Now the first circumstance

which the prosecution has tried to prove against the appellant is that the appellant called the victim from his house to his house and the dead body of

the victim bearing severe cut and bleeding injuries on his person was found in front of his house. In order to prove the same prosecution has relied on

the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5.

P.W.1, the defacto-complainant, has vividly narrated the incident and clearly deposed that on the relevant evening appellant called his father, Hatilal

Singh Sardar, the deceased, to his house and assaulted him with an axe and when they went to the house of the appellant they found his father in

seriously injured condition. He the went to call his uncle (P.W.2) from his house at Dungridih and after that they went to the P.S. to lodge the FIR and

the said complaint was scribed by P.W.2 as per his instruction. Thereafter, police came to the village to inquire into the matter, made inquest over the

dead body of his father in the house of the appellant and he put his LTI thereon. Police also seized bloodstained earth from the house of the appellant

and some controlled earth under a seizure list on which he also put his LTI. He was cross-examined by the defence at length but his evidence

remained unshaken and no material contradiction was brought out during his cross-examination. Surprisingly, he was not challenged by the defence on

the specific assertion made by him in his examination-in-chief that on the relevant evening appellant called his father from their house to his house and

the dead body of his father was found lying in his house bearing severe cut and bleeding injuries on his person. Though, P.W.1 admitted that on the

relevant date his father consumed liquor but denied that quarrel took place between his father and Sardars over the issue of consuming liquor and/or

that someone struck his father with an axe while his father was consuming liquor in the field.

P.W.2, uncle of P.W.1 as also the scribe, has also deposed that P.W.1 informed him that his father Hatilal Singh Sardar was murdered by the

appellant and after getting such information from P.W.1 he went to the house of the appellant and found the victim lying at the door of the appellant

with bleeding injuries. Thereafter, he along with P.W.1 went to the P.S. to lodge FIR and the said complaint (Ext.1) was scribed by him as per

instruction of P.W.1. Police came to their village, made inquest over the dead body of the victim in his presence and also seized blood stained earth

and control earth from the house of the accused by a seizure list and he signed on the inquest report and on the seizure list (identified exts. 2/1,3/1).

He was also cross-examined by the defence but nothing came out contrary to his statement-in-chief which could lead to disbelieve his evidence.

P.W.3, another son of the deceased, also deposed that on returning home from field he found his father lying dead in the house of the appellant having

head injuries and then he heard from his family members that appellant assaulted his father causing his death. He was also the witness to the inquest

as also the seizure of blood stained earth from in front of the house of the appellant. P.W.4 also saw the dead body of the deceased lying in the chala

of the appellant and he heard that appellant murdered Hatilal Singh Sardar P.W.5 also on hearing cries when came out from his house he found the

deceased lying dead in the house of the appellant but he did not find appellant in the house. His evidence remained unchallenged as defence declined

to cross-examine him.

Thus from the evidence of above witnesses, we find that they have corroborated the evidence of P.W.1 that dead body of his father bearing sharp cut

injuries was found at the house of the appellant. This also found corroboration from the inquest report (Ext.2). As per the inquest report dead body

was found in front of the house of the appellant. Seizure list (Ext.3) also shows that bloodstained earth and controlled earth were seized from in front

of the house of the appellant. Place of occurrence has also been depicted in the rough sketch map to be in front of the house of the appellant. There

was no explanation from the defence how the dead body of the victim bearing sharp cut injuries was found just in front of the house of the appellant.

Even during examination under section 313 Cr. P.C. appellant save and except bald denial did not say anything in this regard. The evidence of above

witnesses appear to be trustworthy and reliable and nothing was brought on record to disbelieve their evidence. Under the circumstances, there

appears no reason to disbelieve the evidence of the above witnesses that on the relevant evening appellant called the victim from his house to his

house and thereafter dead body of the victim bearing several sharp cut injuries on his person was found in front of the house of the appellant.

We, therefore, do not find any error in the decision making process of the learned court below on the above issue. Therefore, our interference with the

impugned judgment is not required on this ground. The next circumstances which the prosecution has tried to prove against the appellant is that after

committing murder of the victim he surrendered at the P.S. with bloodstained axe. In order to prove the same prosecution has relied on the evidence

of P.W.12, the investigating officer, who seized the axe in question by the seizure list (Ext.4), P.W.9 and P.W.11, the police personnel who were on

duty at the P.S. on the relevant night as also P.W.1 and P.W.2 who had been to the P.S. to lodge the complaint (Ext.1).

P.W.12, the first investigating officer of the case, has vividly deposed that on September 19, 2001, he was in charge of the Balarampur P.S. during the

absence of the regular Officer-in-charge and on that date he received the compliant (Ext.1) from P.W.1. Accordingly, he drawn up the FIR (Ext.5)

and took up the investigation of the case and during investigation visited the place of occurrence, prepared rough sketch map with index (Ext.6, 6/1),

held inquest over the dead body of the victim (Ext.2) and sent the dead body to Sadar Hospital Purulia for postmortem examination. He further

deposed that on that date at 23.40 hours appellant surrendered at the P.S. with an axe and he seized the blood stained axe as produced by the

appellant under a seizure list (Ext.4) in presence of witnesses at the P.S. and the appellant also put his LTI on it. He identified the appellant in course

of his examination before court. He was cross-examined by the defence and during cross-examination also he specifically stated that appellant

surrendered at the P.S. at 23.40 hours on September 19, 2001 and at that time he and his sentry P.W.9 were at the P.S.

P.W.9 has also deposed that on September 19, 2001 he was on duty at the Balarampur police station and on that date in the night appellant came at

the P.S. with a kural which was seized by the duty officer (P.W.12) by a seizure list on which he signed (identified his signature ext.4/2). He also

identified the appellant in course of his examination before court. During cross-examination also he clearly stated that he was on duty at the P.S. from

8 p.m. Defence failed to impeach his credibility.

P.W.11 has also deposed that on September 19, 2001 he was on night duty at Balarampur P.S. and on that night appellant came to the P.S. with kural

and he was not accompanied by any one. His evidence also remained unshaken during cross-examination.

P.W.1 has also clearly stated on oath that appellant surrendered at the Balarampur P.S. with axe which was seized by preparing a seizure list on

which he put his LTI. He denied the defense suggestion that they took the axe at the P.S. and the said axe belong to them.

P.W.2 also deposed that some time after their arrival of the P.S., appellant went there with an axe in his hand which was seized by the I.O. in their

presence by a seizure list on which he signed (identified ext.4/1). He was also cross-examined by the defence but nothing came out contrary to his

statement-in-chief which could lead to disbelieving his evidence. It is true that during cross-examination at one place he stated that they reached at the

P.S. at about 7.30 p.m. but at the same time in reply to the question put to him by the defence he replied that he stated to the I.O. that at about

7.30/8.00 p.m. P.W.1 came to his house. Now if this be believed then the above statement that they reached at the P.S. at about 7.30 p.m. can't be

believed. This also got fortified when at another place during cross-examination itself in reply to the question put to him by the defence he clearly

stated that they reached at the P.S. at 11.00 P.M. and remained there for half an hour and sometime later on after their arrival appellant came at the

P.S. Ext.1 shows that the same was received at the P.S. on September 19, 2001 at 23.25 hrs. Ext. 4 shows seizure of an axe on being produced by

the appellant at the P.S. on September 19, 2001 at 23.40 hrs. So from the above, we find that the statements of the I.O. (P.W.12) with regard to

surrender of the appellant at the P.S. with an axe on that night and was seized by him also found corroboration from the seizure witnesses. Therefore,

there was no impropriety in the decision making process of the learned court below on the above issue. Accordingly, our interference with the

impugned judgment is not required on this ground also.

With regard to non production of the weapon of offence or FSL report during trial, we find from the evidence of investigating officer, P.W.12, that he

vividly narrated the incident relating to seizure of the weapon of offence being produced by the appellant which also found corroboration from the

seizure witnesses. He also specifically stated that he sent the blood stained 'Kural' (axe), wearing apparel of the deceased, blood stained as also

controlled earth as well as the preserved blood to the Forensic Serological Laboratory for examination through SDJM, Purulia with a challan (Ext.8)

and the same was received at the office of the FSL by the clerk by making endorsement and putting his signature on the reverse side of the

challan(identified ext.8/1) and on January 12,2002 he made over CD to the officer-in-charge of Balarampur P.S. on his transfer. Interestingly, he was

not challenged by the defence on this score. Subsequently, P.W.13 endorsed the case to P.W.10 for further investigation who then submitted charge-

sheet but there was nothing on record to show that he ever took any initiative to collect the weapon of offence or FSL report.

This shows omission rather negligence on the part of the I.O. and defect in investigation. In the matter of Promode Dey vs. State of West Bengal,

reported in (2012) 4 SCC 559, it was decided by the Hon’ble Supreme Court that non-collection of FSL report might be a defect of investigation

which could not result in acquittal of an accused against whom enough evidence was available for conviction. This principle has also been repeated

and reiterated by the Hon'ble Apex court in a number of decisions time and again. In the instant case, we find from the record that investigating

officer though seized bloodstained weapon of offence, blood stained earth, bloodstained apparels etc. 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. This shows omission rather

negligence on the part of the I.O. and defect in investigation.

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. With regard to the absence of motive, we do not find any

substance in the contention of the learned advocate for the appellant in view of the evidence adduced by the prosecution. Mere absence of motive

does not disprove a murder charge. In the matter of Subedar Tewari vs. State of U.P. and others reported in AIR 1989 SC 733 it had been held by

the Hon'ble Apex Court that the evidence regarding existence of motive which operates in the mind of the assassin is very often than not within the

reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know

what gave birth to the evil thought in the mind of the assassin. A crime can take place even without premeditation or pre-planning in the context of a

particular situation, on the spur of the moment.

Therefore, our interference with the impugned judgment is not required on the above ground. Taking into consideration the facts and circumstances on

the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above

grounds in view of the settled proposition of law as discussed herein above. We, therefore, dismiss the appeal and affirm the conviction and sentence

imposed on the appellant.

Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties, on priority basis, upon compliance with the necessary

formalities in this regard.