Rajesh Haldar vs The State of West Bengal

Debasish Kar Gupta, J.—This appeal is directed against a judgment and order of conviction dated July 30, 2008 and sentence dated July 31, 2008 passed by the Court of Additional Sessions Judge, 1st Fast Track Court, Lalbagh, Murshidabad in Sessions Trial No. 3 of January, 2008 arising out of Sessions Sl. No. 102 of 2005, convicting the appellant for commission of offence under Section 302 of the Indian Penal Code, 1973 (hereinafter referred to as the I.P.C.) and sentencing him to suffer imprisonment for life and to pay fine of Rs. 10,000/-, in default, to suffer simple imprisonment for one year. It was further directed that fine amount if realized be deposited in the name of minor child of deceased Shyamal Haldar in any nationalised bank or in post office under Fixed Deposit Scheme till the minor attains majority.

The prosecution case in a nutshell is as under:-

On April 20, 2005 at about 19.00 hours six/seven persons including one Shayamal Haldar, the victim and the appellant held a meeting at Swaraswati Mandir on fishing at river Bhagirathi an altercation took place in between Sukumar Haldar (PW 1) and the appellant in the above meeting. Ultimately, a decision was taken to hold a meeting for above discussion on April 21, 2005 at 20.00 hours with the residents of Village- Natun Sinham, Police Station-Lalgola, District-Murshidabad at the Flood Centre of the above village. The PW 1 attended the above meeting on April 21, 2005. Shyamal Haldar, (the brother of PW 1), elder brother Sri Manik Chandra Haldar (PW 2), Kanai Haldar (PW 3), Arjun Haldar (PW 4) and the appellant attended the above meeting. In the above meeting the victim protested a comment made by the appellant in filthy language. Suddenly, the appellant jumped on the victim and assaulted him on his chest repeatedly with a sharp cutting knife. As a consequence, there was profuse bleeding from the injuries sustained by the victim. The appellant fled away through the bamboo grove. The victim had been removed to the Krishnapur Hospital, District - Murshidabad and the doctor of the above hospital declared him dead.

On April 22, 2005 the PW 1 lodged a complaint in this regard to the Officer-in-Charge, Lalgola Police Station, Murshidabad. A formal FIR bearing No. 36/05 dated April 22, 2005, P.S.-Lalgola, District-Murshidabad, was lodged on the basis of the above written complaint on the above date at 00.05 hours to initiate a case against the appellant for commission of offence punishable under Section 302 of I.P.C. A surathal report in respect of the dead body of the victim was prepared by Amar Kumar Mazumdar, Sub Inspector of Police, Lalgola Police Station.

On April 22, 2005, Md. Nabiul Islam, Sub Inspector of Police, Lalgola Police Station (at the material point of time) (PW 19) was entrusted with the investigation in connection with the above Lalgola P.S. case.

A rough sketch map with index was prepared and the wearing apparels of the deceased as also sample of blood from the above dead body were collected. Ananda Mondal, Constable, Lalgola Police Station, (PW 15) and A.S.I. Md. Rahmatullah (PW 16) were the witnesses of the above seizure list.

Dr. Jugal Kishore Panja, Medical Officer, Sub Divisional Hospital, Lalbagh (PW 18) conducted the post mortem of the dead body of victim on April 22, 2005. According to the above post mortem report, the victim sustained multiple injuries on his body. According to the above post mortem report, the cause of death of the above victim was haemorrhage and shock as a result of multiple injuries to the vital organs of the victim and it was homicidal in nature. In cross-examination, the PW 18 deposed that the victim sustained the above injuries due to assault by weapon.

Police upon investigation submitted charge sheet against the appellant for commission of offence punishable under Section 302 of I.P.C.

On September 27, 2005 charge was framed against the appellant for committing offence punishable under Section 302 of I.P.C. After taking into consideration the documentary and oral evidences of nineteen prosecution witnesses and two defence witnesses as also considering the statement of the accused recorded under Section 313 of Cr.P.C. the impugned judgment was delivered.

It is submitted by Mr. Partha Sarathi Bhattachargee, learned Advocate appearing on behalf of the appellant that from the evidences (both documentary and oral), the fact of commencement of a meeting on April 21, 2005 at Flood Centre under reference, altercation in between the victim and the appellant during the progress of the above meeting, felling down of the victim and the appellant on floor, scuffling of the victim and the appellant and sustaining injuries by the victim using sharp cutting weapon, the death of the victim were almost admitted fact. But commission of the above offence by the appellant was not proved beyond any reasonable doubt for the following reasons:-

(i) The discrepancies of the evidence of PW 1 to 5 with those of PW 9 and PW 10 were vital, affecting the credibility of the evidence of all the witnesses.

(ii) There was no direct evidence against the appellant to assault the victim with sharp cutting weapon. The specific description of the weapon of offence was not available from the evidence on record. The weapon of offence was not recovered.

(iii) Though the controlled earth of the place of occurrence was sent to the Forensic Science Laboratory for chemical examination, the report of such examination was not produced before the learned Court below. According to the evidence of the Investigating Officer (PW 19), the above report was not collected.

(iv) No evidence was available on record in this case with regard to intention of the appellant of causing death or such intention of causing such bodily injury.

On the other hand, it is submitted by Mr. Pawan Kumar Gupta, learned Junior Government Advocate, that the commission of offence under reference by the appellant was proved on the basis of the evidences adduced by five eyewitness (PW 1, 2, 4, 5 and 8) corroborating the prosecution case on the basis of the surathal report, charge framed against the appellant, post mortem report as also the evidence adduced by the appellant as DW 1 and that of DW 2 (the radiologist in Behrampur District Hospital), amongst others.

It is also submitted by Mr. Gupta that the fact of carrying sharp cutting knife by the appellant while attending the meeting and the evidence adduced by him as DW 1 proved the premeditation of mind of the appellant due to his apprehension of assaulting him by the victim as a result due to altercation which took place on April 20, 2005. According to Mr. Gupta, the conviction of the appellant for commission of offence under Section 302 and sentence thereof do not require interference in this appeal in view of his aforesaid submissions.

We have heard the learned Counsels appearing for the respective parties as also further consideration the facts and circumstances of this case, we find that the first ground of challenging the impugned judgment is the discrepancies between the evidence adduced by the prosecution witnesses.

According to the settled proposition of law minor discrepancies on trivial matters not touching the core of the case hyper-technical approach by taking sentence torn out of context here or there from the evidence, touching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. In examining the truthfulness of the evidence, the Appellate Court will have to attach due weight to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Reference may be made to the decision of State of U.P. Vs. M.K. Anthony, and the relevant portion of the above decision is quoted below:-

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

(Emphasis supplied)

The above proposition of law has been repeated and reiterated by the Hon''ble Supreme court time and again in Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, . It has been observed that there are bound to be some discrepancies in between the information of different witnesses when they speak on detail and such discrepancies should not be used to jettison the evidences in its entirety unless those contradictions are all material dimension. The relevant portion of the above decision is quoted below:-

"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence...."

(Emphasis supplied)

In the matter of State of Himachal Pradesh Vs. Lekh Raj and Another, while disfavouring the parrot like statements it has been observed that the normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. The relevant portion of the above decision is set out below:-

"7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution''s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagadish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person."

(Emphasis supplied)

While considering the discrepancies pointed out by the learned Counsel appearing on behalf of the appellant, we find from the evidences of PW 1, PW 2, PW 4 and PW 5 that all of them participated in a meeting on April 20, 2005 at Saraswati Mandir, Police Station - Lalgola, District-Murshidabad for discussion of fishing in river Bhagirathi amongst 6 or 7 person including the victim and the appellant. They observed an altercation between the PW 1 and the victim. It is not in dispute from the evidence of the above prosecution witness that an arrangement was made to hold a further meeting on the above issue on April 21, 2005 at the flood centre of the village. The learned Trial Court further took into consideration that in the aforesaid second meeting held on April 21, 2005, the victim protested a comment made by the appellant to his brother Sukumar Halder (the de facto complainant and PW 1). According to the evidence adduced by the above prosecution witnesses, the appellant jumped on the victim and assaulted him with a sharp cutting weapon/knife. Consequent thereupon the victim fell down on the floor with profuse bleeding from the injured places of his body. The appellant fled away in the bamboo grove.

The learned Trial Court further took into consideration the evidence of the above prosecution witness that the victim had been removed to Krishnapur Hospital, District-Murshidabad, where he was declared dead by the doctor (PW 17).

The learned Court below further took into consideration that according to surathal report, dated April 22, 2005 of Amar Kumar Majumdar, Sub-Inspector of Police, Lalgola Police Station, District-Murshidabad, the victim sustained three successive cut injuries as a result of stabbing him with a sharp cutting knife on his hand or around the chest of the victim. According to the post mortem report dated April 22, 2005, prepared by Dr. Jugal Kishor Panja, multiple injuries to the vital organs were found in and around the chest of the victim. The cause of injury, according to the post mortem report, was hemorrhagic shock resulting from the above injuries and which was homicidal in nature. Noteworthy, that none of them was shakened in course of cross-examination so far as the above depositions were concerned.

While considering the discrepancies of the above evidence with the evidence of PW 8, we find that his evidence corroborated the evidences adduced by PW 1, PW 2, PW 4 and PW 5 save and except that he could not say who had caused the hurt to the victim. Therefore, there was no contradiction of evidence of PW 8 at all with the evidence of the aforesaid other eyewitnesses. The PW 9 was the prosecution witness to bring the fact of collection of tax of concerned portion of Bhagirathi River by the appellant at one point of time. The evidence adduced by the PW 10 not only corroborated the evidence of the other eyewitnesses but also strengthened the fact of commission of offence under reference by the appellant, in view of his deposition that the altercation in between the victim and the appellant was followed by scuffling and as a result both of them fell on the ground. After scuffling and rolling of both of them, the PW 10 found the injured body of the victim as also the appellant with knife in his hand. According to the above prosecution, the appellant fled away from the place of occurrence via bamboo grove. Therefore, there was no discrepancy of the above evidence with that of any other witness. Therefore, we are of the view that the decision making process of the learned Court below was not erroneous in this regard.

With regard to the second ground for challenging the impugned judgment, we find that the learned Trial Court took into consideration the aforesaid oral evidence of the eyewitnesses to arrive at the conclusion that the cause of death was assaulting of the victim by the appellant with a sharp cutting weapon/knife. The learned Court below also took into consideration the corroboration of the cause of death and nature of injury of the victim so far as the surathal report as also the post mortem report both dated April 22, 2005. Therefore, the aforesaid evidence (both oral and documentary) should not be discarded on the basis of settled proposition of law that merely because the weapon of offence had not been recovered during investigation wounds noticed by the doctor (PW 18) and his opinion about the weapon of offence could not be totally wiped out. Reference may be made to the decision of Anwarul Haq Vs. The State of Uttar Pradesh, and the relevant portion of the above decision is quoted below:-

"15. Eyewitnesses in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs 1 and 2. Wounds noticed by the doctor (PW 3) also throw considerable light on this aspect. The doctor''s opinion about the weapon, though theoretical, cannot be totally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 I.P.C."

While dealing with a situation in course of examining the decision making process of a trial court where sample of the seized article or its samples has not been sent to the Forensic Science Laboratory or the same has been sent to the laboratory for examination but report is not obtained, the testimony of eyewitness and the medical report are to be taken into consideration to arrive at a conclusion. In the matter of Amar Singh Vs. Balwinder Singh and Others, , the Hon''ble Supreme Court observed that the failure of the Investigating Officer in sending the seized article for obtaining report from forensic science laboratory the prosecution case cannot be completely thrown out. Such fault on the part of the Investigating Officer would not be fatal when the case is fully established from the direct testimony of the eyewitness and corroboration of the same with the medical evidence. Any failure or omission of the Investigating Officer cannot render the prosecution case doubtful or unworthy of belief in aforesaid facts and circumstances. Taking into consideration the decision of Ram Bihari Yadav Vs. State of Bihar and Others, , it has further been held by the Apex Court in the above matter of Amar Singh (supra) that in a case of certain omission of an investigating agency the case of the prosecution will have to be examined dehors such omission and contaminated conduct of the officials, otherwise which was such lapse or negligence would be perpetuated and justice would be denied to the complainant party which would shake the confidence of the people not merely in the law-enforcing agency but also in administration of justice. The relevant portion of the above decision is quoted below:-

"15....It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. In Karnel Singh v. State of M.P. it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav v. State of Bihar while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihar Yadav v. State of Bihar when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence or the people not merely in the law-enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."

(Emphasis supplied)

With regard to the allegation of the appellant in the case in hand that though the controlled earth of the place of occurrence was sent to the Forensic Science Laboratory for chemical examination, the report was not collected, the learned Court below took into consideration of documentary evidence from surathal report as also post mortem report with the evidence adduced by the eyewitness of PW 1 to 5, PW 9 and PW 10 satisfied the judicial mind of the learned Court below. Further the aforesaid ocular and documentary evidence leaves no gapping whole in the prosecution case. We do not find any infirmity in the decision making process of the learned Court below in arriving at a conclusion of the commission of offence by the appellant in absence of the chemical report of forensic science laboratory in respect of the controlled earth of the place of occurrence. The fault on the part of the Investigating Officer to collect the above report, if any, should not stand in the way of the above finding of the learned Court below on the basis of the settled principle of law as discussed hereinabove.

With regard to the next issue relating to the intention of the appellant to cause death of the victim, the cardinal rule of interpretation is this, in the event a case comes within the elements prescribes in exception to Section 300 of I.P.C., it is culpable homicide and not amounting to murder. The above provision is quoted below:-

"300. Murder. - Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -

Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -

Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -

Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

The above provisions are interpreted by the Hon''ble Supreme Court in the celebrated judgment of Virsa Singh Vs. The State of Punjab, and the relevant portions of the above decision are quoted below:-

"14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly";

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has noting to do with the intention of the offender."

In the matter of Jagrup Singh Vs. State of Haryana, , the Hon''ble Supreme Court altered the conviction of the appellant under Section 302, IPC, to one under Section 304, Part-II, IPC considering the nature injury on the head of the deceased with a blunt side of gandhala in the heat of the moment consequent upon a sudden quarrel and without any intention to cause the death of the deceased. The relevant portions of the above decision are quoted below:-

"14.....

In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of the moment which resulted in the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly erred in applying clause Thirdly of Section 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre-meditation and in a sudden fight, the case was covered by Exception 4 to Section 300 . It is not suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus, all the requirements of Exception 4 are clearly met. That being so, the conviction of the Appellant Jagrup Singh, under Section 302 of the Code cannot be sustained."

(Emphasis supplied)

It has also been held by the Hon''ble Supreme Court in the matter of Jagtar Singh Vs. State of Punjab, , that in a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. It is a case of commission of above offence under Section 304, Part-II of the I.P.C. The relevant portion of the above decision is quoted below:-

"8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant wielded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304 Part II of the IPC and a sentence of imprisonment for five years will meet the ends of justice."

(Emphasis supplied)

From the impugned judgment we find that the learned Court below found that the knife of the appellant hit the interior vital organ in the body of the victim apart from outside injury. So, the assault upon the victim was premeditated and the blow of sharp cutting weapon on the body of the victim was not accidental one and it was deliberate which was sufficient in ordinary course of nature to cause death of the victim. But the learned Court below failed to appreciate that the evidences adduced by PW 1 to PW 5, PW 9 and PW 10, contents of the written complaint dated April 22, 2005 was proved. The commission of offence by the appellant to assault the victim suddenly with a sharp cutting weapon was a result of a protest of the victim with regard to a comment of the appellant addressing the brother of the victim (the de facto complainant and PW 1) in filthy language.

In view of the discussion and observation made hereinabove this appeal is allowed partially. The conviction of the appellant for an offence under Section 302 of I.P.C. and the imprisonment for life are quashed and set aside.

The appellant is convicted for having committed an offence under Section 304, Part-II of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for ten (10) years. The fine and the default clause imposed upon the appellant by virtue of the impugned sentence remains unchanged.

The period of detention of the appellant during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated hereinabove, in accordance with the provision of Section 428 of Cr.P.C.

This appeal is, thus, allowed to the extent mentioned hereinabove.

Let the lower Court records be sent back to the Trial Court expeditiously.

Urgent photostat certified copy of this judgment if applied for, be given to the parties on priority basis.

Md. Mumtaz Khan, J.

I agree.