Rupchand Murmu vs The State of West Bengal

Patherya, J—This appeal has been filed from the judgment and order of conviction and sentence dated 28th September, 2004 and 30th September, 2004 respectively, passed by the Additional Sessions Judge, 1st Court, Purulia, in Sessions Trial No. 3 of 2004, arising out of Sessions Case No. 62 of 2004, whereby and whereunder the accused appellant was convicted and sentenced under Section 302 IPC and directed to suffer imprisonment for life and to pay fine of Rs. 2000/- in default of such payment, suffer further rigorous imprisonment for three months.

The case of the prosecution is that the victim was found with injuries on her body on a road near to her house. An alarm was raised by P.W.3 which attracted the attention of P.W.4 and on reaching the place of occurrence (P.O.), P.W.4 found not only the accused appellant assaulting the victim with cuttery but also thereafter fleeing away. Fleeing of the accused appellant was also noticed by P.W.5.

The said incident occurred in the absence of the victim who had gone to Bandowan hospital to collect some medicines. He was informed of the incident by his daughter, P.W.4 on the road while he was returning from the hospital.

Thereafter, an F.I.R. was filed by him on the date of the incident at 11.15 hours. and Bandowan P.S. Case No. 27 of 1994 was started under Section 302/201 IPC. An inquest was made on the body of the victim and report filed. The body was also sent through the constable for post-mortem purposes and post-mortem report was also filed. On the basis of the investigation conducted by the I.O., a charge sheet was filed and charges framed. The said charge was read-over and explained to the accused appellant, who pleaded not guilty and claimed to be tried.

Prosecution examined 10 witness. None was examined on behalf of the defence. On consideration of oral evidence so also documents exhibited, the order of conviction and sentence was passed. The accused appellant was also examined under Section 313 of the Criminal Procedure Code.

Counsel for the accused appellant submits that the evidence of the prosecution witness is full of contradictions and not creditworthy. P.W.1, constable, who took the body of the victim under a challan has not proved the challan nor identified the body. P.W.2 is the husband of the victim and his statement in the F.I.R. is contrary to his evidence. He did not witness the incident but heard about it. According to P.W.2''s evidence, it was P.W.3 who first informed him while in the F.I.R. he has mentioned that it was P.W.5 who first informed him. Nowhere in his cross-examination did he mention P.W.3, although, he mentioned him in his examination-in-chief. Therefore, the evidence of P.W.2 cannot be relied on. Similarly, the evidence of P.W.3 (Charu) is conflicting and cannot be believed. The distance between Charu''s house and the P.O., has not been mentioned in the sketch-map. All that he did according to his evidence was to raise an alarm after he heard a hue and cry. It is unbelievable that in spite of hearing a hue and cry he did not move from his position, therefore, the factum of him seeing the incident is far from believable and his evidence ought not to be accepted. P.W.4 has stated in chief that she saw assault on the victim by the accused appellant. This has not been affirmed in cross-examination. In cross-examination there is no mention about assault nor threatening by the accused appellant or his fleeing away. All that she has stated in cross-examination is that she found the victim lying on the side of Kuli Rasta. Therefore, her evidence is full of contradictions and cannot be relied upon. Her evidence also has not been corroborated by any of the other prosecution witness. She heard the hue and cry while she was in the ''Khamarbari'' and distance from the ''Khamarbari'' to the Kuli Rasta or to Charu''s house has not been proved. Therefore, Kalpana''s presence at the P.O. has not been proved and is in doubt. For lack of proof of time and distance between the Khamarbari and the Kuli Rasta, the evidence of P.W.4 is nothing but an embellishment. She has categorically stated in her cross-examination, that the police did not examine her and although the I.O. has stated that he recorded the statement of P.W.4, in his evidence the said recording is nothing but table work. P.W.3 also did not mention the presence of P.W.4. Therefore, it is unbelievable that P.W.4 was at the P.O. as she did not tell of the incident prior to the trial. Her evidence is nothing but an improvement and cannot be relied on. P.W.5 is an eyewitness to the incident and according to him he saw the accused fleeing away. He did not mention the incident to anyone and therefore made it for the first time at the time of trial. His evidence is also nothing but an improvement. P.W.5 - Deben''s house finds no mention in the sketch map. As he spoke to none his evidence ought not to be believed. P.W.6 is the co-villager, who has not been able to identify the accused appellant. He has also categorically stated that he was not examined by the I.O. This is contrary to the I.O''s. evidence, wherein it has been specifically stated that P.W.6 was examined by him. This reveals that no statement was recorded by the I.O. and the statement is nothing but the result of table work, and the evidence of P.W.6 cannot be relied on. P.W. 7 is the scribe, P.W.8 is the P.M. doctor. The offending weapon was not recovered nor was it shown to the P.M. doctor. In the event, it was shown, the opinion would have been otherwise. P.W. 8, P.M. doctor, in his evidence has specifically stated that there was no specific report on dissection. Therefore, the report submitted is suspect. P.W.9 is the formal witness and P.W.10 is the I.O. The I.O. conducted the investigation in a perfunctory manner which renders it defective and therefore is good reason to set aside the order of conviction and sentence. No motive has been proved, nor has it been possible for the prosecution to prove premeditation. Embellishment on discussion is evident from the evidence of P.Ws 3, 4 & 5. The F.I.R. has been filed on the basis of what was heard by the F.I.R. maker. He has no personal knowledge of the incident and neither is he an eyewitness. The evidence of P.W.3 and P.W.4 is not creditworthy as the time and distance to the P.O. from their respective place is not known. Distance does not find mention in the sketch map, therefore, the sketch map is incomplete and not beyond reasonable doubt. P.W.3 in his evidence does not mention the presence of P.W.4. For the contradiction in the evidence of prosecution witness the accused appellant be given the benefit of doubt. No effort was made by the I.O. to find the offending weapon and on the arrest of the accused appellant the case ought to have been reopened but no such step was taken. The I.O''s approach to the investigation was callous in nature and although the witnesses categorically stated that they were not examined by him, the I.O. said that he did examine them. The evidence of prosecution witness is weak and contrary. The investigation is perfunctory and therefore, not safe to warrant an order of conviction. Reliance is placed on Ravulappalli Kondaiah and Others Vs. State of Andhra Pradesh, AIR 1975 SC 216 : AIR 1974 SC 216 : (1975) CriLJ 262 : (1975) 3 SCC 752 for the proposition of improvement. Mere absconding by the accused appellant will not prove his guilt mind as held in Thimma and Thimma Raju Vs. State of Mysore, AIR 1971 SC 1871 : (1971) CriLJ 1314 : (1970) 2 SCC 105 : (1970) 1 SCC(Cri) 320 : (1971) 1 SCR 215 . Omission of an important fact, namely non-mentioning of Charu as a witness is a major defect in the FIR as held in 1975 SC 1026 and for all the said reasons the order of conviction be set aside.

Counsel for the State respondent submits that the prosecution''s case is based on eyewitness, i.e. P.W.4, Kalpana. Her evidence is corroborated by the evidence of P.W.3 (Charu). The presence of P.W.3 and P.W.4 at the P.O. has been corroborated by P.W.5 (Deben), who saw the accused appellant fleeing away. The accused appellant was apprehended from his brother''s house after ten years and this is a vital incriminating circumstance against the accused appellant. As the case is based on an eyewitness, motive is irrelevant as held in Maloth Somaraju Vs. State of A.P., (2012) CriLJ 402 : (2011) 3 Crimes 180 : (2011) 10 JT 17 : (2011) 3 RCR(Criminal) 889 : (2011) 9 SCALE 174 : (2011) 8 SCC 635 : (2011) 10 SCR 349 : (2011) 5 UJ 3199 : (2011) AIRSCW 4877 : (2011) 5 Supreme 502 saw the incident while P.W.5 saw the accused appellant flee away. The evidence of P.W.4 in chief was not demolished or shaken by the defence in cross-examination. At best, it may be a case of perfunctory investigation as held in 2007 SCC 246 but the said can be no reason to set aside the order of conviction.

The case of false implication has not been canvassed by the defence. Therefore, for all the said reasons the order of conviction and sentence be upheld.

In reply, counsel for the accused appellant submits that besides the argument canvassed an alternative plea be considered of Section 304 Part-I IPC and discretion as postulated be exercised in favour of the accused appellant.

Having considered the submissions of the parties, the incident occurred on 24th June, 1994 in broad day light. An alarm was raised by P.W.3 and hearing such alarm P.W.4 rushed from the Khamarbari to the P.O. where she saw the accused appellant assaulting her mother, when she asked him not to assault he threatened her by showing cuttery and then fled away taking cuttery with him "by cycling a cycle". P.W.4 then ran through the village road in search of her father whom she found on the road and to him she narrated the incident. It was P.W.2, father of P.W.4 and husband of the victim who filed the F.I.R. and although counsel for the accused appellant sought to make much of the mentioning and non-mentioning of the names in the F.I.R nothing much turns on it as the F.I.R. is not an encyclopaedia of events or facts. The purpose of the F.I.R. is to inform the authorities concerned of the incident which has occurred and the incident in the instant case is the death of the victim caused by the accused appellant, therefore, termed as murder of the victim by the accused appellant, which by filing of the F.I.R. was informed to the police station and on the basis of such information given Bandowan Police Station Case No. 27 of 1994 under Section 302/201 IPC was initiated. From a reading of the evidence three witness are of prime importance; P.W 3, P.W.4 and P.W.5. P.W.3 is an elderly gentleman, (Charu) who at the time of incident was about 49 years of age but having no capacity to work was sitting on the outer verandah of his house when he saw the incident. He raised alarm and asked Rupchand, his nephew the accused appellant not to injure the victim. He also heard the hue and cry but did not move from his position and the reason for not moving was his loss of capacity to work and he was feeble in body. It is the alarm raised by P.W.3 which attracted P.W.4 and brought her to the P.O. When she reached the P.O. she found the accused appellant assaulting the victim, and when she asked him not to assault the victim the accused appellant threatened her by showing a cuttery and then fled away with the cuttery by cycling a cycle. She categorically stated that she found the victim with a cut injury on the throat. This evidence of P.W.4 remains intact and unshaken in cross-examination. In cross-examination she affirmed the alarm raised by P.W.3 which she heard and then rushed to the P.O. and found her mother the victim lying on the road. A suggestion put to her by defence counsel with regard to not having witnessed the incident or the accused appellant not murdering the victim was denied by her. therefore, P.W.4 is not only an eye-witness but a vital witness who has proved the prosecution''s case. Although, much has been sought to be made by counsel for the accused appellant regarding the evidence of P.W.4 being nothing but an improvement but this argument cannot be accepted in view of the evidence of the I.O. who has categorically stated that he examined P.W.4 and recorded her statement. P.W. 5 found the accused appellant flee by a cycle. He has also stated that he saw P.W.3 and P.W.4 at the P.O. In cross-examination too he has reaffirmed the fleeing of the accused appellant on a cycle and the suggestion put to him was denied by him too. It may be true, that he did not say of the incident to anyone on returning to his house but that was in respect of the incident and it cannot be taken to mean that he did not make any statement under Section 161 of the Criminal Procedure Code. No suggestion to that effect was also put to him by the defence counsel and therefore the argument of improvement made by counsel for the accused appellant cannot be accepted. Much has been made of non-recording of distance from the Khamarbari to the P.O. or from Charu''s house to the P.O. in the sketch map but once again nothing turns on such non-recording as the sketch map is not used to prove the case. It is the prosecution who is to prove its case and it is the endeavour of the defence to ensure that the prosecution fails to prove its case. But in the instant case, the question of distance was not even raised or suggested by the defence. Therefore, the case of improvement sought to be raised by counsel for the accused appellant cannot be accepted. It is quite possible that the investigation was perfunctory and defective but in view of Shyamal Ghosh Vs. State of West Bengal, AIR 2012 SC 3539 : (2012) CriLJ 3825 : (2012) 3 Crimes 97 : (2012) 6 JT 404 : (2013) 1 RCR(Criminal) 770 : (2012) 6 SCALE 381 : (2012) 7 SCC 646 will not warrant setting aside of the order of conviction when the prosecution has been able to prove its case when an eyewitness is available, motive is of no relevance as in the instant case. Mere non-mentioning of Charu in the F.I.R. will not render the F.I.R. not worthy of consideration. In fact, from the date of incident the accused appellant was not to be found in the village for a long period of ten years. This is in itself an incriminating circumstance against him as held in Shyamal Ghosh Vs. State of West Bengal, AIR 2012 SC 3539 : (2012) CriLJ 3825 : (2012) 3 Crimes 97 : (2012) 6 JT 404 : (2013) 1 RCR(Criminal) 770 : (2012) 6 SCALE 381 : (2012) 7 SCC 646 and as held it is clear that absconding of accused not only goes with hypothesis of guilt of accused but also points a definite finger towards him. The case of the prosecution is further strengthened by the evidence of P.W.9, doctor. P.W.8 has stated the injuries found in his evidence and proved the P.M. report as follows:--

"1 One wound transversely placed over upper part of the neck measuring 5" x 2" wide x Larynx and oesophegus and oesophegus cut (common carotid uttery on right side injured)

Wound transversely placed over mandible measuring 3" x 1" into bone cut

Wound over left side of cheek measuring three inches x 1/2 inch x muscle deep"

He has also gone further to mention as follows:

"Those three injuries were grievous in nature and may be caused by sharp weapons of by a cuttery". According to him;-

"Injury no -1 is sufficient in this case for causing the death. Injuries can not be caused due to self infliction. The above injuries can not be caused due to accident."

The present injuries were ante mortem in nature and death was homicidal in nature".

Therefore, in view of the aforesaid, the order of conviction and sentence calls for no interference.

Counsel for the accused appellant sought to take resort to Section 304 Part-I IPC. Section 304 Part-I IPC will come into play only on consideration of Section 300 IPC. Section 300 IPC deals with the ingredients of murder and if those ingredients are not satisfied the question of culpable homicide, will arise, but in the instant case, we find that the third ingredient, as set out has been satisfied.

"300 Murder- Except in the cases 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 - ............................................................ 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 ..........................................................................."

No plea of the offence being committed due to grave or sudden provocation or in the heat of passion was made out in the court below. No case of being deprived of such control was also canvassed. Therefore, the alternative argument sought to be pursued cannot be accepted and is rejected.

For all the said reasons, this appeal fails and the order of conviction and sentence confirmed.

Let LCR be returned to the Trial Court forthwith.

Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities.

Indrajit Chatterjee, J.

I agree.