Befaia Karwa vs State Of West Bengal

Thottathil B. Radhakrishnan, C.J

1) The appellant, Befaia Karwa, stands convicted for offences punishable under Sections 302/201/34 of the Indian Penal Code (for short 'IPC') and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- with default sentence of rigorous imprisonment for six months for the offence under Sections 302/34 of IPC and to suffer imprisonment for three years for the offence under Sections 201/ 34 IPC, both the sentences to run concurrently, in Sessions Case No. 33 of 2003 of the Court of the First Additional Sessions Judge, Siliguri.

2) Heard the learned counsel for the appellant and the learned Additional Public Prosecutor.

3) The prosecution case, in brief, is that on 06.03.2003, at about 12.00 noon Balku Majhi left his house after lunch but did not return and then his son Rajendra Majhi (PW4) and other members of the family searched for Balku Majhi, but failed to find him; on 07.03.2003, at about 5.00 P.M., Balku Majhi's wife Sabina Majhi (PW9) came to learn that the dead body of Balku Majhi (deceased) was lying at Block No. 13 at Dagapur Tea Estate; consequently, her son PW4 went to the spot and found the dead body of his father and noticed cut mark injuries on both side of the ears; on information being received, SI Sukumar Ghosh (PW13) went to the spot and the victim's son PW4 submitted a written complaint before the said Sub-Inspector (IO) on the spot making allegations against unknown miscreants for the murder of Balku (victim); and the body was sent for post-mortem, then the case was started with the investigation being taken up by the IO, which was later approved by the Officer-in-Charge of the Police Station; and on completion of investigation, charge-sheet was laid against two persons, namely, the appellant Befaia Karwa, who was arrested, and Mottu Karwa who was and still is absconding. Proceedings against Mottu Karwa was segregated and filed as he was absconding. On committal, charge was framed by the Sessions Court against Befaia Karwa (appellant). Upon his denial of the prosecution's allegations when the charge was read out, the accused was put to trial. That resulted in his conviction and sentence against which this appeal is instituted.

4) The prosecution projected and the Court below held that PW2 Thomas Toppo is an eye witness to the incident in which Balku was killed by Befaia Karwa (appellant) and Mottu Karwa (absconder). The sole eye witness PW2 was relied on by the Court below which also relied on the version of PW1 Abdul Khaleque and PW3 Tinteus Tirky who are persons of the locality, as well as PW4 Rajendra Majhi, the son of the deceased, and PW9 Sabina Majhi, the widow of the deceased, all of whom said that PW2 Thomas Toppo told that he saw the accused persons, namely, Befaia Karwa (appellant) and Mottu Karwa assault deceased Balku Majhi. Court below relied on such evidence and convicted and sentenced the appellant.

5) The learned counsel for the appellant has raised, fundamentally, two arguments.

6) The first argument advanced is that the post-mortem report and the testimony of PW12, the doctor who conducted the autopsy would show that the injuries could not have been those which were the result of any act by the alleged accused persons using bricks as stated by PW2. Lacerated wounds numbering one to six in the post-mortem report, on the side of the scalp and external ears, are pointed out to show that other weapons were used and the version of PW2 who is projected as an eye witness does not lead to the conclusion arrived at in the post-mortem report. This argument does not appeal to us for reasons more than one. The fact that Balku Majhi (victim) is dead stands. The post-mortem report discloses that the person whose body was identified for post-mortem died due to combined effects of strangulation and injuries over head and chest, antemortem and homicidal in nature. While it is true that there were cut lacerations over the external ear, temporal region of scalp just above it and on the right and left side of the scalp, such injuries do not negative the conclusion of the doctor who conducted the autopsy, more particularly because the middle of body of sternum was fractured and right first to eighth ribs and left second to sixth ribs were also fractured, with haematoma of the muscles of chest wall. Lungs showed congestion and haemorrhagic areas over interior surface. The doctor, as PW12, has stated that the external cut injuries might have been caused by moderately heavy to heavy sharp cutting weapon and the injury over head, haematoma over head and fracture over the scalp might have been caused by blunt weapon. The testimony of the autopsy doctor PW12, taken along with the post-mortem report, conclusively show use of blunt weapon which resulted in crushing and fracture injuries on the head and the chest as well as ribs and compression of the chest cavity of the victim, which led to death, which was noted in the post-mortem certificate as due to combined effect of strangulation and injuries over head and chest, antemortem and homicidal in nature.

7) The plea of the appellant and the argument on his behalf is that the testimony of PW2, the so called eye witness, as regards the overt acts do not run with the contents of the post-mortem report and the testimony of PW12. We hold that the prosecution has proved and the Court below has rightly found that the victim died as a result of homicidal acts using blunt weapon which resulted in crushing and fracture of the skull as well as the ribs as also the compression of the chest cavity which could be a combined effect of strangulation, having regard to the nail marks reported in the post-mortem report. The conclusion that the victim died a homicidal death and such death is attributable to the overt acts which have resulted in the injuries on the body of the victim is only to be sustained. We do so.

8) The next, but most important, argument on behalf of the appellant is that though the testimony of solitary eye witness may be sufficient to sustain a conviction in a given case, the version of PW2 is ridden with inherent improbabilities and self- contradictions which make his version wholly unreliable. That apart, if the version of PW1, PW3, PW4 and PW9 that they were informed by PW2 that Befaia Karwa (appellant) and Mottu Karwa (absconder) had killed the victim using bricks upon the body of that person be true, there is no reason why the complaint was made by the PW4 to the police and the consequent registration of the First Information Report and commencement of investigation was carried by recording the allegation put against unknown miscreants without identifying or mentioning any person as the assailants. There is no reason for not having arrayed the appellant Befaia Karwa or the absconding Mottu Karwa in the list of accused persons even on the information of the PW2, it is argued. The learned counsel for the appellant also pointed out that PW2 Thomas Toppo who is projected as the eye witness is brought into the prosecution version for the first time by having a statement recorded by him before a Magistrate under Section 164 Cr.P.C. three weeks after the date of the incident. Taking all these circumstances together the learned counsel for the appellant pointed out that the testimony of PW2 is wholly unreliable inasmuch as the version given by him about his presence where the victim and others were consuming alcohol and also at the place where the accused persons are stated to have killed the victim cannot be taken as reasonably possible in the common course of human conduct. It is, therefore, argued that PW2's testimony is unworthy of credence and is liable to be eschewed; and, bereft of that, the testimony of PW1, PW3, PW4 and PW9 would be merely hearsay and ought not to have been acted upon.

9) PW2 was around 17 years of age at the time of the incident. He stated that the two accused persons killed the victim on allegation that he was a wizard. His version was that they assaulted the victim within the tea estate using bricks. He stated that the time of the incident was between 11.30 to 12.00 in the noon and he had gone to catch birds and then saw the incident and, thereafter, returned to his home. He also stated that the two persons also threatened him and told him not to disclose the incident to anyone. He stated that after two days of the incident, the body of the victim was recovered from the tea garden and then he (PW2) disclosed the matter to PW1 and PW3 of his locality and that he came to the Court after three weeks of the incident to give statement. He also stated that he was examined by the police. In cross examination he stated that there were ten to twelve houses in between his house and the house of the deceased Balku Majhi and at the relevant time he and three others sat in the house of Bandhan (PW7) and his three friends were taking liquor. Victim Balku was also present in the house of Bandhan (PW7) and Balku took excess liquor. PW2 said that he did not take liquor at that time.

10) It is of utmost importance to notice that PW2 stated that Mottu Karwa (absconder) called Balku (victim) from the drinking place. Thus, the version of PW2 was that it was Mottu (absconder) who had called Balku from the drinking place. The distance between the place where the persons were consuming alcohol and the place where Balku (victim) was allegedly assaulted is not established by the prosecution, though, the place of occurrence is said to have been ten meters from the place of Samrat Brick Field. He stated that the police had questioned him and that he went to the Court for giving statement before the learned Magistrate three weeks later. He denied the suggestion that he is deposing falsely against the accused Befaia Karwa (appellant) since the wife of Befaia Karwa (appellant) once abused his family members. If the version of PW2 who is the solitary eye witness has to be believed there should be clear and cogent legal evidence to show the possibilities of he being present in the house of Bandhan (PW7) and also in the place of occurrence in the tea garden where the victim was allegedly assaulted. PW7 turned hostile. He was not even cross-examined by the prosecution to bring home the possible fact that PW2 was there in the house of PW7 where they were consuming liquor. Thus, PW2's version of having been there when the victim was consuming alcohol and when Mottu Karwa (absconder) called the victim from there is unreliable. Even if it were true that PW2 was in the house of PW7 while Mottu (absconder) called the victim and took him out, what was it that prompted PW2 to also go? We pose this question in the course of appreciation of evidence, because 11.30 to 12.00 noon is the time of occurrence which is stated by PW2 repeatedly as the relevant time, when he was examined in Court. There are different possibilities and probabilities in the sequence of events that could have happened. We are unable to accept the version of PW2 as of one person who was incidentally present in the house of PW7 while the victim and other three friends were consuming alcohol and also simultaneously to be present in the tea estate where the victim was allegedly assaulted. The doubts that linger in this regard, regarding the truthfulness of his testimony gets saturation from the fact that while PW2 is stated to have disclosed the incident immediately after the body was recovered, no disclosure made by him to any other witness led to the accused persons being named in the complaint lodged by PW4, the son of the victim, and the consequential First Information Report which was registered to trigger the investigation. The statement under Section 164 Cr.P.C. was recorded three weeks after the incident. The testimony of PW2 is that he went to the Magistrate after being examined by the police.

11) On the whole we are of the view that the testimony of PW2 is insufficient and is ridden with inherent improbabilities in the backdrop of the entire materials on record. It will not be safe to confirm the conviction solely on the basis of the testimony of PW2 and there is no legal evidence corroborating the version of PW2 even as regards other relevant aspects, particularly his presence in the house of PW7. The different probabilities surging, necessarily tends to show that the legal evidence on record is insufficient to inculpate the appellant, who is entitled to the benefit of doubt. For the aforesaid reasons, we are unable to sustain the conviction and sentence imposed on the accused, the appellant.

12) There is also no evidence on the strength of which the charge under Section 201 IPC, with or without the aid of Section 34 IPC, would independently stand.

13) In the result the appeal is allowed setting aside the conviction of the accused/appellant and the sentence imposed on him. Resultantly, he is acquitted.

14) The appellant shall be forthwith released from custody, if not wanted in any other case upon executing a bond to the satisfaction of the trial Court in terms of Section 437A of the Code of Criminal Procedure.

15) The lower Court records along with a copy of this judgement be sent down at once to the learned trial Court for necessary action.

16) Urgent photostat certified copy of this judgment/order, if applied for, be supplied to the parties upon compliance of all necessary formalities.

I agree.