Mihir Das vs State of West Bengal

Siddhartha Chattopadhyay, J. - Doubting the correctness of the order of conviction dated 15.11.2008 and order of sentence dated 17.11.2008 in respect of five convicts/appellants namely Mihir Das, Smt. Felu Das, Smt. Menoka Das, Smt. Kamala Das and Lakshman Das and the order of sentence in respect of convict/appellant Dhananjoy Das dated 27.01.2009, the aforesaid appellants filed these criminal appeals and prayed for setting aside the order of conviction and order of sentence imposed against them on the ground that the learned Trial Court failed to appreciate the position of law and the evidence led by the prosecution witnesses in its proper perspectives. According to the appellants, learned Trial Court most unreasonably relied on the prosecution evidences, which are admixture of falsehood.

In the interest of effective adjudication, factual aspects needs to be relooked. Sieving out unnecessary details, the prosecution case in a capsulated form is such that on 12.04.2006 in the evening at or about 6 P.M. when the defacto complainant (Bulu Das) was coming back after having a bath from Morokka Pukur (Pond), the convict/appellant Dhananjoy Das made some indecent proposal to her. After coming back to her house, she has disclosed her grievances to her parents and family members. Her inmates raised protest and there was altercation between the two families. At or about 9 P.M. the convicts/appellants came to the house of the defacto complainant as well as the victims and began to assault Biswanath, Basudeb and Helaram mercilessly and practically Helaram was lynched to death. Other victims namely Biswanath, Basudeb also sustained severe injuries. All of them were taken to hospital but on the way Helaram breathed his last. Ventilating these ill-episode, the defacto complainant came to police station being accompanied by Bibhas Sen (scribe) and others and lodged the F.I.R. raising her fingers against the convicts/appellants, who according to her, are responsible for the prematured death of her father as well as for the injuries sustained by the other victims.

Soon after the F.I.R. was registered, the prosecution agency came into operation. In course of investigation P.W. 20 (Narayan Chandra Samanta) diarised the entry, which was received soon after the occurrence and started an unnatural death case. In course of investigation, he has collected the inquest report of the deceased Helaram, collected injury reports in respect of other victims. He has recorded the statement of the relevant witnesses under Section 161 Cr.P.C., prepared rough sketch map with index, seized the offending weapons, arrested the convicts/appellants. After arresting all of them, had submitted charge-sheet under Section 341/302/34 of the India Penal Code read with Section 325/34 of the Indian Penal Code. On perusal of the materials on record learned Trial Court has framed charges under Section 302/325/341/34 of the Indian Penal Code. Charges so framed were read over and explained to the convicts/appellants to which they pleaded not guilty and claimed to be tried.

The defence case as it appears to me from the trend of cross-examination and examination of accused under Section 313 of Cr.P.C. is their innocence and that they have been falsely implicated in this case.

Since the witnesses are the eyes and ears of justice, so we should now listen to the witnesses. P.W. 1 (Bulu Das), in her evidence, has disclosed that she is the deserted wife and she had been residing in her parent''s house. There was no toilet in her parent''s house and so they used to go to Morokka Pukur (Pond) to attend their nature''s call as well as for bathing. According to her, convict/appellant Dhananjoy Das used to tease her with some indecent proposal at a regular interval and she always raised protest. On the relevant day, the said Dhananjoy Das made indecent proposal and this time she reacted and disclosed this fact to her parents. Her parents then took the issue with the parents of Dhananjoy Das and there was some sort of altercation between two families. After a few hours at or about 9 P.M., the convicts/appellants came en masse with some deadly weapons and attacked the victims and their family members mercilessly and as a result her father sustained profused bleeding and her brothers also received injuries in their persons. Then all the victims were taken to hospital but on the way to hospital, the victim Helaram breathed his last. She has lodged the F.I.R. and as per her direction it was scribed by one Bibhas Sen and the said F.I.R. was marked exhibited.

Regarding the place of occurrence, she has disclosed that opposite to their house, one Sukdeb Das resides, who happens to be maternal uncle of this defacto complainant. She categorically stated that electricity connection was there and there are electric poles in their villages. The house of appellant Mihir Das is situated on the back side of her maternal uncle''s house and the said appellant Mihir Das resides there with his wife and children. His parents reside in another house. She was cross-examined at length. In course of cross-examination, she has admitted that there are two ponds which are nearer to Morokka Pukur (Pond). Morokka Pukur (Pond) is at a walking distance of ten minutes whereas other two ponds are within five minutes walking distance. Referring this part of her such evidence, learned Counsel appearing on behalf of the appellants contended that a false story has been framed against them only to implicate them falsely out of enmity. The defacto complainant in her evidence had stated that she along with other house wives of different locality used to bath in the evening and after bathing is over, all of them went to their respective houses. No specific question was put to her by the defence as to why she has chosen Morokka Pukur (Pond) for bathing. It is perhaps needless to mention that the prevalent practise of rustic women to go in a group for bathing for the purpose of their safety and security. Not only that, their primary consideration is to see, where they can get their best privacy. In cross-examination, she has however admitted that while she was coming back from the pond she had to cross the house of Kanchan Dam, Sankar Bihari, a rice mill, and some other houses. Referring this part of her such evidence, the learned Counsel appearing on behalf of the appellant vehemently argued that this P.W. 1 did not tell those house owners about such indecent proposal by the appellant Dhananjoy Das. If we carefully go through her evidence we would certainly find that she had already clarified that women of different locality went to their respective houses through Tantipara. It appears from the F.I.R. that alleged indescent proposal was given in the evening. In these circumstances, a divorcee/deserted wife should try to come back to her parent''s house as fast as possible. It is axiomatic truth that no woman wants to wash her dirty linen in a public place lest she becomes a subject of hatred feeling of her neighbours. The house of appellant is close by to house of the defacto complainant. When she disclosed her shameful agonies, her family members raised protest and there was altercation. After a few while, the appellants appeared therewith deadly weapons and assaulted them mercilessly. In cross-examination, she has further disclosed that Smt. Felu Das assaulted her father by bamboo stick and other appellants assaulted her father as well as her brothers by sharp cutting weapons. After hearing the hue and cry, local people came to the spot and the entire incident of assault lasted for about half an hour. Other parts of her evidence were in the form of suggestions, which she has denied out rightly.

P.W. 2 is the son of the victim of Helaram i.e. he is the brother of P.W. 1. He is also one of the victims. In his examination-in-chief he has narrated every minutest details in such a fashion which could not be demolished. In course of cross-examination, he stated that he was interrogated by the Investigating Officer nearly after one month. Referring this part, learned Counsel appearing on behalf of the defence concluded that the statements made by P.W. 2 before the Investigating Officer was full of embellishment. There was scope of improving his statement. This part of his such evidence has to be considered in the light of Investigating Officer''s evidence. In this regard P.W. 20 (Narayan Chandra Samanta) in his evidence has categorically stated that he could not examine the injured victims in the hospital as he was not allowed by the hospital authority. His such evidence remains unshaken in course of cross-examination. Not only that these P.W.s evidence is also to be considered with the evidence of P.W. 20, as to why the victims statements was not recorded within the shortest possible time. P.W. 2 is not supposed to show why the Investigating Officer did not examine him immediately even after being released from hospital. Investigating Officer is the best person to say so. Significantly enough, the defence did not dare to put any such question to the Investigating Officer in this regard. Therefore, such fallacy will not help the defence in any way. P.W. 3 is the another victim. He is also the brother of P.W. 1. He narrated the incident of assault which exactly tallies with the evidence of P.W. 1 and P.W. 2. Defence could not demolish his statement which has been made in examination-in-chief.

P.W. 4 is the scribe. He was not an eye-witness and he admitted that in his evidence. After hearing the hue and cry and the news of assault, he had been to the place of occurrence and as per direction of P.W. 1 he wrote the F.I.R. The said written F.I.R. was marked exhibited in this case. In cross-examination, the defence could not shake his evidence at all. P.W. 5 is Premananda Saha. He is also not a witness to the occurrence. He heard about the new of assault and altercation. He went to hospital and police station and he is a witness to the seizure of offending weapon. In cross-examination, he has categorically stated that the accused Dhananjoy Das and Mihir Das were inside the Suri Bus Stand and after seeing the police they were trying to flee away. Police chased and caught. This part of his evidence remains unshaken and there was no denial taken by the defence. The P.W. 6 is Srimanta Patralekh is not the witness to the occurrence. After knowing the fact of the alleged incident, he had gone to hospital to see the victims and also came to the police station. During cross-examination, the defence could not encash anything from him. P.W. 7 is Sambhu Banerjee and P.W. 8 is the Buro Das. Their evidence are also similar to the evidence of P.W. 6. Therefore, so far as alleged incident of assault is concerned their evidences are insignificant, but their presence before the hospital and police station indicate that such incidents took place. P.W. 9 is Shyamsundar Das. He is also not a witness to the occurrence. After the incident, he had been to police station as well as to hospital. P.W. 10 is Jahanara Bibi. She claimed himself as eye-witnesses to the occurrence. She has also disclosed the manner of assault, nature of the injury sustained by the victims and the role of the convicts/appellants in the alleged commission of offence. During the cross-examination, her evidence remains unshaken substantially. P.W. 11 is Sundari Das. Her evidence does not inspire confidence on the ground that in course of cross-examination she had stated that Biswanath and Basudeb were unconscious. But Biswanath and Basudeb themselves had stated that they were all along conscious even in hospital. She further stated that she found the victim Helaram died on the spot but the evidence of other witnesses including eye-witnesses speak that Helaram died on his way to hospital.

P.W. 12 is Madan Das, who is one of the eye-witnesses. He has corroborated the prosecution case in his examination-in-chief as well as in cross-examination. P.W. 13 is Mahadeb Das, who is one of the sons of the victim. For his job, he had been to Murshidabad at the relevant point of time. On the next day, he came to his house and he is a witness to the inquest. He put his signature in the inquest report which is marked exhibit. P.W. 14, is Santosh Das. He is also one of the sons of the deceased and he is also a witness to the inquest. P.W. 15 is Dilip Baidyakar. According to him, after hearing the hue and cry he came to the spot and witnessed the incident. He was not cross-examined as regards incident of assault. This goes to show that his evidence stands in its entirety. P.W. 16 is the doctor, who has done the post mortem report. In his evidence he has supported the prosecution case. He found some wounds and cut injuries, and opined that this may be due to sharp cutting weapons and it was homicidal in nature. He has proved the post mortem report which is marked exhibit. The said post mortem report also reflects the injuries which had been inflicted upon the victim Helaram. P.W. 17 is the another doctor. He has given treatment to Biswanath Das and according to him the said patient was discharged on 16.04.2006. He found sharp cutting injuries in his person. In cross-examination he has admitted that this type of injury may not be done by the heavy weapon like axe. P.W. 18''s evidence is not significant because he is the dead body carrier. P.W. 19, although had submitted charge-sheet but practically he did not make any investigation.

P.W. 20 is the Investigating Officer. He has done the investigation work. When the incident was reported to him he had made a diary to that effect and started unnatural death case. Thereafter F.I.R. was lodged and he started investigation. In course of investigation, he has recorded the statement of the witnesses under Section 161 Cr.P.C., collected injury report, post-mortem report, ascertained place of occurrence, seized the offending weapon, arrested the accused persons and on completion of the investigation had submitted charge-sheet. In course of cross-examination, it was suggested to him that P.W. 2 did not tell him that there was an electric pole beside their house or there was bulb and electric connection in their house. He did not tell the Investigating Officer that the villagers of said Para normally used to go to Morokka Pukur (Pond) for bathing purpose and that there was hot altercation between two groups. In our considered view, these are not at all material for the purpose of raising any plea of defence. It appears from the evidence of all the relevant witnesses, that there was electricity connection in their locality and it is immaterial whether he has mentioned it before the Investigating Officer or not. Secondly, it is also admitted that on that day it was Purnima i.e. Full Moon. There is no denial taken by the defence in this regard. According to the Investigating Officer''s evidence P.W. 2 did not say that there is village road in front of the house of Helaram. It seems to me this is also immaterial. On perusal of the rough sketch map, which is marked Exhibit 12, it appears that the word ''B'' stands for house of ''Helaram'' and beside the house of Helaram, there is village road which is drawn by the Investigating Officer himself. This apart, it is not the case of defence that the occurrence did not take place there. This apart Investigating Officer ought to have been asked this question by the defence, if he had asked the witnesses about the date and time of the occurrence or not. Sensory perception of a rustic people varies from each other. Merely snatching an answer from the mouth of a witness, will not help the defence in any way. What the witnesses had not been said under Section 161 Cr.P.C. that ought to have been clarified from the Investigating Officer also, i.e. whether he had asked those questions from the witnesses or not. If in spite of putting of such questions to the witnesses, the witnesses did not respond to only in that case it could be treated as a contradiction otherwise it would be treated as an omission. It is perhaps needless to say that omission cannot be equated with contradiction.

Learned Counsel appearing on behalf of the defence argued that all the witnesses are interested witnesses and they are relations. According to him, their evidences are not at all trustworthy and their evidence should be discarded in its entirety. We are in respectful disagreement with him on the ground, there is no legal canon that the evidence of related and interested witnesses should be thrown out mechanically. It is a rule of caution as well as rule of prudence. Before accepting their evidence, Court has to weigh the evidence with a golden scale in its entirety and if it passes through the touchstone of credibility, in that case their evidence cannot be brushed aside under the carpet. It is not at all expected that these witnesses would falsely implicate a person leaving the real culprits. After all they are last persons to see that the real culprits are brought to book. On perusal of the evidence of the eye-witnesses as well as the victims I find that their statements are creditworthy and substantially in the same tone and tune, which a Court of low cannot ignore. It is true that due to passage of time, memory fades. It was also equally true the truth is bound to suffer from certain infirmities when projected through human agencies.

On perusal of the entire records and evidence we find certain omissions and contradictions in the testimonies. But such minor discrepancies omissions are not fatal for the prosecution case. After going through, the evidence of the prosecution witnesses, we find that they are coming from lower strata of our society and do not have much education. Therefore their evidences has to be considered in the light of their sensory perception, their reaction to the normally course of events etc. Minor omissions do not stand in the way of convicting a real culprit. If the contradictions and omissions are so vital in nature, which made the prosecution case absolutely false, only in that case Court must take it into consideration. Exaggerated devotion to the rule of benefit of doubt is not desirable.

At last the learned Counsel appearing on behalf of the defence very compassionately submitted that the accused appellants deserve acquittal under the canopy of benefit of doubt. Judges, law-thinkers and academicians spent money sleepless nights to define ''benefit of doubt''. Stretching of imagination based on fanciful ideas, cannot be brought into picture in disguise of benefit of doubt. Where the ocular evidence is there and which is corroborated by the medical evidence also, in that case question of benefit of doubt does not arise at all. Having regard to the facts and circumstances of this case and the evidence led by the prosecution witnesses, and after hearing the arguments of both sides we are of the view that there is no mistake committed by the learned Trial Court by holding the appellants as guilty. Therefore, the sentence passed by the learned Trial Court against the five convicts namely Mihir Das, Felu Das, Smt. Menoka Das, Smt. Kamala Das and Lakshman Das under Section 302/34/325 of the Indian Penal Code are hereby confirmed. Appellant Mihir Das is in jail and other appellants are on bail. Learned Trial Court shall issue warrant of arrest against those appellants for serving out the sentences as passed by the learned Trial Court.

C.R.A. No. 218 of 2009

In this instant appeal learned Trial Court did not consider the convict/appellant Dhananjoy Das as a juvenile in conflict with law. He was imposed life imprisonment in respect of offences under Section 302/34 of the Indian Penal Code and also passed a sentence to undergo imprisonment for a period of three years and pay a fine of Rs.3,000 in default to undergo imprisonment for a further period of three months in respect of offence under Section 325/34 of the Indian Penal Code. While coming to that decision, the learned Trial Court did not take the ossification test report in its true spirit. Ossification test of the convict was done held by the Medical Officer of Suri Sadar, Hospital, who held that in 2008 the convict Dhananjoy Das was 19/20 years with variation of plus minus two years. Therefore, the convict Dhananjoy''s age in 2006, was in between 16 to 18 years. It is trite law, that in case of difference of age, the age which favours the accused has to be accepted. Therefore, it ought to be presumed that the convict Dhananjoy Das was below 18 years at the relevant point of time and he should be treated as a juvenile in conflict with law. It is accepted proposition of law that a juvenile should not be sent to jail for serving out the sentence. Now the said juvenile appellant is aged about at least 26 years and so he should not be kept in a juvenile home because there is every chances of polluting the other teen-aged boys in the said home. There is also provision for community service and we are of the view that by rendering community service, some day he may be a good citizen. We cannot ignore that if a saint has a past, every sinner has a future. Considering this aspect, we are of view that the Convict Dhananjoy should render three years community service and by way of rendering such service, his soul will be purified in due course. Accordingly, we direct Dhananjoy Das to render community service. He is hereby directed to report to the Superintendent of ''Sramajeebi Hospital'' at Belur and the said Superintendent shall deploy him to render community service for next three years without any remuneration, in the male ward of orthopedic patient and he should be deployed in toilet cleaning and floor cleaning of that ward for the next three years from the date of his appearance before the said hospital authority and the said authority shall only arrange for food and lodging. If the convict/appellant be produced there within 15 days from the date of this order by the jail authority before the said hospital authority for rendering such community service as mentioned above.

Accordingly, this criminal appeal is modified in terms of the observations mentioned above.

Let a copy of this order be sent to the learned Court below as well as Superintendent of Sramajeebi Hospital at Belur for their information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

Rajiv Sharma, J. - I Agree.