Mrityunjoy Mitra vs State

Girish Chandra Gupta, J.—This appeal is directed against a judgment and order dated 9th September 1985 passed by the learned sessions Judge, Bankura, in Sessions Trial No.1 of March 1985 arising out of Sessions Case No.7 of 1984 convicting the appellant Mrityunjoy Mistra and acquitting the accused Fata Dhang and Krishna Biswas of the charge u/s 302 of the Indian Penal Code. The convict Mrityunjoy was sentenced to imprisonment for life.

The facts and circumstances of the case briefly stated are as follows:

On 5th June 1982 in the evening, the deceased Nripen Khan accompanied by his brother Dilip Khan and many others had been to Huchukdanga, a village in the district of Bankura, to watch a theatrical performance commonly known as Jatra. At about 10.50 P.M., the de facto complainant Dilip hearing the cry of his elder brother Nripen rushed near the house of Guinram Ghosh and found his brother Nripen lying in a pool of blood. Upon interrogation, the victim disclosed that Mrityunjoy Mishra and three unknown persons due to political rivalry dealt the blows with sharp cutting weapons. His three cell torch and the HMT ''Sona'' Wrist Watch had also been snatched away. The victim was taken to Ramchandrapur for treatment. From there he was shifted to Mezia Hospital. The written complaint was lodged at 03.05 hrs. on 6th June 1982 that is to say within four hours approximately. The victim succumbed to his injury in the Mezia Primary Health Center on 6th June 1982. The conviction is based on the dying declaration of the victim. There is no eyewitness. The accused/appellant Mrityunjoy absconded for a considerable period of time and was ultimately arrested on the basis of a secret information on 15th October 1982.

On 16th June 1982 Shankar Patra who was eventually, examined as P.W.5 made a statement u/s 164 of the Code of Crimitial Procedure which has been marked exbt.2 and the same was recorded by the judicial Magistrate (P.W.15). The said statement (shorn of details) when translated into English would read as follows:

"................................................ then Mrityunjoy came and told "Nripen you are there". Mrityunjoy caught hold of Nripen and dragged him. The former was accompanied with others. Fata Dhang caught hold of me. I however escaped after forcibly freeing myself. On my way to the Pandal I told many persons pointing my finger the direction which Mrityunjoy had taken Nripen. I had lost the power to speak. Everyone ran. I also followed them. Nripen was lying behind the house of Sadhu Dutta near a bamboo clump and was shouting. His brother Dilip Khan was sitting by his side. Nripen was telling Mrityunjoy had assaulted him. He was asking for water which was provided by Tarapada. Many persons ran. Nripen was shifted to the hospital."

Tarapada referred to in the aforesaid statement u/s 164 Cr PC, marked exbt.2, eventually examined as P.W.4 had also made a statement u/s 164 Cr PC on 16th June 1982 before the judicial Magistrate (P.W.15) and his statement has been marked exbt.3. The statement of Tarapada, shorn of details when translated in English would read as follows:

"........................................ Suddenly I heard a hue and cry. I went behind the house of Sadhu Dutta there there is a bamboo clump which was the place from which the hue and cry was coming that a person was being assaulted. I proceeded further. Sanat Ghosh was with me. We were shouting. We saw 6/7 persons near the bamboo clump. They were telling us "If you come near we shall fire". Out of fear we retreated but I could recognise the voice of Fata Dhang and Krishna. These two persons were among the gang of 6/7 persons. Three bombs were charged. We retreated further. When the miscreants went away we went to the place where Nripen had been stabbed. Many people had collected there. I gave water to Nripen. Dilip was there. He told me "the elder brother had sense for 5/7 minutes and he told me that Mrityunjoy Mishra had assaulted him". Nripen was taken to the hospital. I do not know anything more."

From a conjoint reading of these two statements it would appear that Tarapada had reached near the place of occuracnce after Shankar did. Shankar, as a matter of fact, according to his statement was in the company of the victim from the very begining. Shankar has talked about the presence of Fata Dhang besides the appellant Mrityunjoy and others and it is only reasonable to infer that Tarapada proceeded towards the place of occurrence only after Shankar had escaped from the clutches of Fata Dhang. P.W.5 Shankar and the P.W.4 Tarapada are, therefore, very important witnesses. But unfortunately both of them turned hostile. The P.W.5 however admitted the fact that he had made a statement before the judicial Magistrate. He also identified his signature. He also admitted that he knew both the appellant Mrityunjoy Mishra and Fata Dhang. He identified them but he refused to divulge the other facts except for the fact that Nripen told him that Mrittrunjay, had assaulted which was also disclosed by him in his statement u/s 164. He in his cross-examination on behalf of the defence deposed that "I saw Nripen groaning and moving his head and shoulder. Seeing that, Dilip went away for arranging a duli and Tarapada left the place for bringing water". P.W.4 Tarapada before he was declared hostile deposed as follows:

"I reached the place of Sadhu Dutta''s bamboo clump. There I met Dilip who asked me to bring glass of water. So, I came back to the green-room and took the bucket of water and made it over to Dilip. Then, I went to the place where Nripen was lying. That place was beside the bamboo-clump of Sadhu Dutta at a distance of 15 cubits away from Sadhu Dutta''s bamboo-clump. I asked Dilip as to how it happened. He replied to me that Mrityunjoy had assaulted his elder brother Nripen.

I cannot say what I saw and what I heard when I first reached the place of bamboo-clump on that night.

In this case, I made a statement before a Magistrate."

It would appear that P.W.5 Shankar''s evidence in Court that the victim Niripen was telling that Mrityrunjoy had assaulted him has been corroborated by exbt.2. The evidence of the P.W.4 Tarapada in Court that he ascertained from Dilip that Mrityunjoy had assaulted his brother Nripen has been corroborated by exbt.3. The fact that the P.W.4 supplied water for the victim deposed to by him in Court has also been corroborated by exbt.3. P.W.1 Dilip, de facto complainant, deposed in Court that his elder brother Nripen told him that Mrityunjoy Mishra and 3/4 others injured him with knives. This deposition of the P.W.1 has been corroborated by the written complaint recorded u/s 154 of the Cr PC. P.W.2 Sanat who had come to Huchukpur for participating in the theatrical performance as one the actors deposed that "Nripen told us then that Mrityunjoy Mishra, Fata Dhang and Krishna Biswas assaulted him. We saw him in an injured condition. Then we brought a cot and in that cot we took Nripen to Ramchandrapur Primary Health Center........"

P.W.7 Dr. Saha attached to Mezia Primary Health Center who had examined the victim deposed that "the injuries were in such nature that even after infliction it would be possible for the patient to remain conscious". In his cross-examination he reiterated that the injury may not have brought immediate unconsciousness.

P.W.8. Balahari Khan, father of deceased Nripen, deposed that at about 11.30 P.M. on the date of incident he ascertained from his son Dilip (P.W.1) that Mrityunjoy had caused the injury with knife.

P.W.1 Dr. S.C. Mazumdar conducted the postmortem examination on 6th June 1982 at 16.15 hrs. He deposed about the injury found in the person of the deceased and opined that the death was due to the effect of the injuries which were ante-mortem and homicidal in nature. Cross-examination of the Autopsy Surgeon was declined on behalf of the defence.

Mr. Dastoor assailing the dying declaration submitted that there are three versions emerging from three witnesses. According to the P.W.1 the de facto complainant, the dying declaration was that Mrityunjoy Mishra and 3/4 others had injured the victim with knife. According to the P.W.2 Sanat the deceased Nripen told him that Mrityrunjoy Mishra, Fata Dhang and Krishna Biswas had assaulted him. According to the P.W.5 the deceased Nripen told him that Mrityunjoy had assaulted him. Mr. Dastoor submitted that these three versions belie the fact that any dying declaration was at all made by the deceased. We are unable to accept this submission. We already have discussed the evidence to show that the evidence of the P.Ws.1,4 and 5 as regards the dying declaration has been well corroborated by the earlier statements made under sections 164 and 154 of the Criminal Procedure Code. The involvement of Fata Dhang and Krishna deposed to by the P.W.2 finds corroboration from the exbts.1 and 3. However the learned Trial judge has chosen to acquit them presumably to be on the safe side. We therefore, are unable to find any infirmity in the evidence establishing that the deceased made a dying declaration stating that Mrityunjoy Mishra amongst others had dealt the injuries.

Mr. Dastoor further contended that the inquest was conducted by the P.W.12, Sub-Inspector Mondal who in his cross-examination deposed that during the inquest he was told by Sukhomoy, a relation of the deceased and one Lahhhan Mondal that they did not know the names of the assailants. We are unable to attach any importance to this part of the deposition of the P.W.12 given in cross-examination for the simple reason that the inquest report is not on the record. The proceedings of the inquest were, according to the P.W.12, recorded in his report. That report is not on the record. The contents of that report cannot be proved by oral evidence without first proving the necessary facts for the purpose of letting in secondary evidence. We are also inclined to think that this part of the evidence given in cross-examination is not true. The written complaint had already been lodged, more than 12 hours before the inquest was conducted, disclosing the names of the appellant and others.

Mr. Dastoor also assailed the evidence of P.W.1. He submitted that the P.W.1 may not have heard his brother Nripen making the dying declaration. We are unable to accept this submission. Almost each one of the witnesses including the hostile witnesses deposed that he was present at the place of occurrence. Mr. Dastaor added that the evidence of the P.W.1 cannot be believed because he did not utter a word in his evidence as regards the fact that the victim was shifted to Ramchandrapur Hospital and from there he was shifted to Mezia Public Health Center. This has also not impressed us. This if at all is a mistake on the part of the learned Public Prosecutor. The P.W.1 in his written complaint lodged contemporaneously stated that "then we brought my elder brother to Ramchandrapur". It is really an omission on the part of the Public Prosecutor who forgot to ask this relevant question during the examination-in-chief of the P.W.1.

Mr. Dastoor then contended that the FIR appears to have been subsequently manufactured which will be evident from the fact that the First Information Report was despatched from the police station to the concerned Magistrate only on 7th June 1982. The First Information Report was lodged in the early hours of 6th June 1982. On 6th June 1982 at 10''O Clock in the morning it could not have been sent at 10'' Clock. But it was actually sent on 7th June 1982. There was thus 30 hours delay approximately.

We are unable to accept this submission. Immediately after the FIR was lodged police must have been engaged in the investigation. The accused persons were absconding. It appears from the evidence of the P.W.14 that the appellant could be arrested on the basis of secret information only on 15th October 1982. The other two accused persons were still then absconding. On 2nd May 1983 the charge sheet was filed against the appellant and two others showing them as absconders. We therefore are unable to find any substance in this submission of the learned advocate.

It was then submitted by Mr. Dastoor that the victim who had suffered so extensive injury as would appear from the evidence of the P.W.10 the Autopsy Surgeon was not likely to have made any declaration disclosing the names of his assailants. This possibility has to be discarded when there is dependable evidence to show that the victim did, in fact, disclose the names of his assailants. P.W.7 Dr. Saha who had the opportunity to examine the victim opined that the victim may not have become unconscious immediately after suffering the injury.

Mr. Dastoor then submitted that the doctor who had attended the victim in the Ramchandrapur Hospital was an important witness and he has not been examined. It is true that he has not been examined but whether any doctor had examined the victim in Ramchandra PHC has not been definitely shown to us. The evidence before us establishes that the appellant absconded for a very long period. He has also given an untrue answer to the question No. 11 put to him in his examination u/s 313 Cr PC. The question and the answer are set out hereinbelow:

"Q.11. It is found from the proof and evidence that police did not found you at your house at Machharakela in spite of a making search for you more than once. Afterwards on the basis of secret information police arrested you at Mejhia Market. What do you want to say?

Ans. I was at my own house and many days after when I was marketing at Mejhia Market I was arrested."

The answer given by the appellant is obviously an untrue answer which supplies the missing link. Reference in this regard may be made to the judgment in the case of State of Maharashtra Vs. Suresh, wherein the following view was taken:

"It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by P.W.22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25-12-1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of P.W.22 Dr. Nand Kumar. A false answer offered by the accused when his attention was drawn to the aforesaid circumstances renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain."

Lastly it was submitted by Mr. Dastoor that the place of occurrence is uncertain. The P.Ws.1,2 and 5 had talked about the fact that the victim was lying in a pool of blood but not a drop of blood was seized by the police from the place of occurrence. The I.O. in his evidence deposed that the place of occurrence is a paddy land which belonged to Guinram. He further deposed as follows:

"There at the P.O. I did not point any stain of blood nor did I see any blood around the P.O. I saw and felt that earth of the P.O. had been disturbed. I saw the P.O. being washed with cowdung."

In his cross-examination the I.O. deposed as follows:

"In the G.D. it is not written that the P.O. was washed with cowdung. I made this statement from my memory. It is written in the G.D. that the earth of the P.O. was found disturbed by me, but the nature of the disturbance is not mentioned in the case diary."

Mr. Dastoor submitted that washing out the place of occurrence is not believable. The records of the investigation made contemporaneously did, in fact, show "that the earth of place of occurrence was found disturbed" as would appear from the evidence of the P.W.14 quoted above. Further evidence as regards the place of occurrence is to be found in the deposition of Guinram (P.W.3) who deposed in his cross-examination as follows:

"The body was lying at a distance of about 200 cubits away from my house. It was lying on a padddy field. Beside my house is the house of Sadhu Dutta. There is a bamboo-clump on the north side of my house."

Existence of the bamboo-clump near the place of occurrence has been deposed to by a large number of witnessess as noticed earlier. They also deposed that the place of occurrence was behind the house of Sadhu Dutta.

There is thus hardly any scope to entertain any reasonable doubt as regards the certainty of the place of occurrence.

No other or further submission was made by Mr. Dastoor. All his points have been dealt with and rejected by us. We are firmly of the view that the conviction is well deserved and the view taken by the learned Trial Court cannot be interfered with.

The appeal in the result fails and is dismissed. It appears that the appellant was released on bail by an order dated 3rd October 1985. His bail bond is cancelled. He is directed to surrender to his bail-bond at once. The learned Trial Court is directed to take the appellant Mrityunjoy in custody forthwith so that he may serve out the sentence inflicted by the learned Trial Court.

Lower Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action.

Urgent xeros certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of usual formalities.

Kishore Kumar Prasad, J.

I agree.