Moslemuddin and Others vs The State of West Bengal

Indrajit Chatterjee, J—This appeal arises out of the judgment and order of conviction passed by the learned Sessions Judge, Uttar Dinajpur at Raiganj in connection with Sessions Case No. 72 of 2002 (Sessions Trial No. 3 of 2003) arising out of Kaliaganj Police Station Case No. 126 of 1993 dated 23.12.1993 under Section 302 of the Indian Penal Code (henceforth called as the said Code) by which the Trial Court was pleased to convict the present appellants in respect of the charge punishable under Section 302 read with Section 34 of the Code. As per order dated 23.02.2004 they were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5000 each, in default RI for six months for the said offence.

The case of the prosecution can be stated in brief thus; that in the intervening night of 22/23.12.1993 at about 12 midnight one Kader Md. informed the de facto complainant, Ramjan Ali Sarkar (PW-1), that the appellant No. 1 Moslemuddin (henceforth called as A - 1) had murdered his cousin sister (Kakato Bon), Maleka Khatun (victim) and on hearing this PW-1 rushed to the place of occurrence and on reaching there saw his sister was lying dead in a pool of blood on the floor of the room (western bhiti). It is also the prosecution''s case that he found several persons there and A - 1 replied that he committed the murder.

The FIR was lodged by Ramjan on 23.12.1993 at about 08:45 hours giving rise to Kaliaganj PS case No. 126 of 1993 under Section 302 of the Code. The said case culminated into GR Case No. 817 of 1993 of the SDJM, Raiganj. In the FIR apart from what we have mentioned it was disclosed that the victim was aged about 25 years and her marriage with the appellant No. 1 took place before 7 or 8 years ago and it was a love marriage but unfortunately they were not blessed with any child.

The matter was investigated by the police and during the course of investigation some witness stated to the Investigating Officer that A - 1 committed the murder of his wife in furtherance of the common intention of the other appellants. Charge sheet was submitted accordingly. The case was committed to the Court of Session and Sessions Case No. 72 of 2002 was registered and it was tried by the learned Sessions Judge, Uttar Dinajpur at Raiganj as Session''s Trial No. 03 of 2003. Charge was framed under Section 302/34 of the Code to which they pleaded not guilty and claimed to be tried. Before the Trial Court the prosecution examined in all eight witnesses and marked several documents as exhibits including FIR, inquest report, postmortem report, dead body challan etc. The defence examined two DWs namely Saiyad Ali as DW-1 and Kader Md. as DW-2. It may be mentioned that this Kader Md. was a cited witness in the charge sheet but he did not depose on behalf of the prosecution but came to depose as DW 2. No documentary evidence was proved by the defence. The defence took the plea of false implication on the ground of enmity and dacoity on night of incident.

In this appeal we are to consider whether the accused appellants were responsible for the murder of the victim. Mr. Ganguly counsel for the accused appellants submits that the prosecution has failed to prove the case not only against the appellant Nos. 2 to 4 but also against the appellant No. 1. He submitted that the case is to be judged on the parameter of the judgment of the Apex Court reported in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : (1984) CriLJ 1738 : (1984) 2 SCALE 445 : (1984) 4 SCC 116 : (1985) 1 SCR 88 wherein the Apex Court candidly held that there is a great difference between "may be" and "must be" and that suspicion however strong cannot take the place of proof. He also cited another decision of the Apex Court as reported in Joydeb Patra and Others Vs. State of West Bengal, AIR 2013 SC 2878 : (2013) CriLJ 2729 : (2013) 3 JCC 1799 : (2013) 10 JT 463 : (2013) 2 RCR(Criminal) 338 : (2013) 3 SCALE 341 : (2013) AIRSCW 2744 to convince this Court that unless the prosecution has been able to discharge the burden under Section 101 of the Evidence Act the accused cannot be asked to discharge the burden under Section 106 of the said Act. We have gone through the decision, it will not apply to the facts of this case as in that case no poison could be detected in the viscera of the victim and as such the accused was acquitted. Thus, there was no question of shifting of burden under Section 106 of the said Act.

He also attacked the Trial Court conviction on the ground that no caution was given to the accused appellants when examined under Section 313 and on this point he cited the Division Bench decision of this Hon''ble Court reported in 2003 C.Cr.LR (Cal) 346 (Harka Bahander Rai v. the State of West Bengal) wherein the bench found that the accused was not properly examined under Section 313 Cr.P.C. as no caution was given before examination, pertinent questions were not asked, no opportunity was given to the defence and the accused was not heard regarding imposition of sentence, therefore remand was ordered.

He argued that the co-accused persons ought not to have been convicted in respect of the charge by invoking Section 34 of the Code. He further submitted that the statement of the accused appellant No. 1 cannot be taken as extra judicial confession as it was made in the presence of the police as stated by PW5. The prosecution has failed to prove whether A-1 was present at the P.O. at the time of the incident. He further submitted that the prosecution did not endeavour to seize the offending weapon and as such the said weapon was not forwarded to FSL. He also asked this Court to take into consideration the defence case as made out through cross-examination of PW-5 when he admitted that he told the I.O. that A - 1 told that some unknown persons tied him and committed the murder. He ended his argument by saying that the prosecution has failed to establish the motive of the crime to implicate A-1.

In counter to the said argument, Mr. Pawan Kumar Gupta Advocate appearing on behalf of the prosecution submitted that he is not supporting the conviction as against the appellant Nos. 2 to 4 as their names did not appear in the FIR which is the earliest piece of information given to the police and PW-1 who reached the place of occurrence at dead hour of night did not say a single word to implicate those appellants.

Regarding A-1 it was his submission that the prosecution had duly discharged its burden under Section 101 of the said Code but A-1 had failed to discharge the burden which was on him under Section 106 of the Evidence Act. He cited the decision of the Apex Court as reported in Shambu Nath Mehra Vs. The State of Ajmer, AIR 1956 SC 404 : (1956) CriLJ 794 : (1956) 1 SCR 199 wherein Justice Vivian Bose writing the judgment on behalf of bench held that Section 106 of the Evidence Act does not abrogate the well-established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and S. 106 is not intended to relieve the prosecution of that burden. On the contrary, it seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be especially within the knowledge of the accused and the section cannot apply.

He also cited the decision of the Apex Court reported in State of Rajasthan Vs. Thakur Singh, (2014) AIRSCW 4479 : (2014) 8 JT 50 : (2014) 8 SCALE 82 , in which the Apex Court decided that it is true that the burden of proving the guilt of an accused is on the prosecution but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. It was further held by the Court that these facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts. In this decision the Apex Court also relied upon its own decision as reported in State of West Bengal Vs. Mir Mohammad Omar and Others etc., AIR 2000 SC 2988 : (2000) CriLJ 4047 : (2000) 9 JT 467 : (2000) 6 SCALE 148 : (2000) 8 SCC 382 : (2000) 2 SCR 712 Supp : (2000) AIRSCW 3230 : (2000) 6 Supreme 172 . He took us to the evidence on record and pointed out the following circumstances:

"(1) That the victim was the legally married wife of A-1,

(2) They used to reside in the same room as husband and wife,

(3) That there was only one room in the house occupied by the couple,

(4) That the body of the victim was found in a pool of blood inside the said room,

(5) The doctor found cut throat wound below thyroid cartilages 4" x 3" vertebra cut (fourth cervical and large vessels of both sides cut causing fatal bleeding),

(6) That the accused was found sitting in the said room by several PWs,

(7) That the said accused made an extra judicial confession on that night before PW-1 implicating himself solely and that the other accused persons came later to the PO was also told by this accused and that he committed the murder of his wife but some of those witness exaggerated to implicate the other appellants,

(8) That the motive is also clear from the version of the PWs being that the victim could not bear any child even after 7 years of marriage and that this accused was putting pressure on her to transfer the said house in his name. As regards the non recovery of the weapon of offence it was his submission that it was due to defective investigation but for that reason the prosecution case cannot suffer.

(9) The case of dacoity sought to be canvassed cannot be accepted as there was no looting or assault reported. Therefore the plea is nothing but false.

(10) It is also not clear who tied the accused appellant."

It was submitted by the lawyer appearing on behalf of the accused appellants in reply that the prosecution had failed to prove its case convincingly and that A-1 was present at the place of occurrence. The IO was silent on the offending weapon which was not recovered. PW 5 has stated that unknown persons tied the accused appellant. It was for the prosecution to explain which it has not been able to do as burden has not been discharged, Section 106 of the Evidence Act will not apply.

Before we take up the evidence on record we would like to deal with the argument of the accused appellant as to the defective examination of the present appellants under Section 313 (prior to its amendment in 2009). We have gone through the judgment as referred by the appellant in Harka Bahadur Rai (supra). It is true that in that judgment the division bench of this Court held that the examination of the accused person under Section 313 was defective on two grounds viz. that the learned Judge did not give caution to the accused that the answers given by him may go against him but he cannot be punished for refusing to answer. Section 313 of the Cr.P.C., is an enabling section which has given power to the Court to examine the accused, (1) - at any stage of the proceeding without previous warning to the accused and (2) -after the witnesses for the prosecution have been examined and before he is called for his defence. The Court will ask the accused generally on the case but while examining the accused under Section 313 Cr.P.C. no oath shall be administered to the accused and that accused shall not be liable to punishment in refusing to answer such question or for giving false answers to them.

It is true that in Sub-Section (4) of that Section there is stipulation that the answers given by the accused may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other enquiry or trial for, any other offence which such answers may tend to show he has committed.

It is true that examination under Section 313 Cr.P.C. is not a mere formality. We have gone through the examinations of the present appellants recorded under Section 313 Cr.P.C. and it is true that no caution was given. Now, the question is whether that has prejudiced the appellants to such an extent that the accused persons are to be acquitted or that the case is to be remanded for fresh examination of the accused persons after noting such caution.

There are a galaxy of decisions of the Apex Court as regards the examination of the accused persons under Section 313 Cr.P.C. in which the Apex Court has held that the principal consideration of the Appellate Court in cases of defective examination under Section 313 Cr.P.C. will be to ascertain whether it has prejudiced the accused persons. We can cite here some of the said decisions on this point, (1) - Gian Chand and Others Vs. State of Haryana, AIR 2013 SC 3395 : (2013) CriLJ 4058 : (2013) 4 JCC 137 : (2013) 10 JT 515 : (2013) 3 RCR(Criminal) 916 : (2013) 9 SCALE 544 : (2013) 14 SCC 420 , (2) - Paramjeet Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200 : (2011) CriLJ 663 : (2010) 4 Crimes 165 : (2010) 10 JT 260 : (2010) 10 SCALE 258 : (2010) 10 SCC 439 : (2011) 1 SCC(Cri) 98 : (2010) AIRSCW 6616 : (2010) 7 Supreme 26 and (3) - Nar Singh Vs. State of Haryana, (2014) 4 CCR 487 : (2014) 4 Crimes 252 : (2015) 1 JCC 634 : (2014) 4 RCR(Criminal) 929 : (2014) 10 SCJ 492 .

Keeping our searching eyes on the examination of the accused persons regarding Section 313 Cr.P.C. we are of the opinion that the accused persons understood the questions put by the learned Trial Judge and answered those questions properly. Thus, no prejudice was caused to the appellants on that score. The accused appellants examined DWs but did not ventilate their grievance regarding the defective examinations under Section 313 Cr.P.C. Nothing was argued before the Trial Court that the accused persons were prejudiced because of the alleged defective examination under Section 313 Cr.P.C. It is true that it would have been better for the learned Trial Judge to give caution to the accused persons to let them know regarding the intention of the legislature as regards Section 313(4) Cr.P.C. We are of the considered view that simply because such caution was not given the examination of the accused persons under Section 313 Cr.P.C. cannot be treated as defective particularly when no prejudice was caused to the defence. By virtue of the decisions of the Apex Court the law in this regard has under gone a sea change in the second decade of 2000 which will be apparent from the decisions above.

Let us now have a glimpse as to the evidence on record. PW 1 in his evidence deposed that in the night of 22.12.1993 at about 12 he was informed by Kader that there was murder in the house of A-1 and then he went to that house and found the dead body of the victim with bleeding injury on her throat, lying on the floor of the room and the appellant No. 1 was sitting in the said room. This witness duly identified the accused A-1 on dock. This witness further deposed that a huge public gathered at the PO and A-1 when asked told that he had killed the victim. This witness imputed the motive of such murder when he deposed that the victim was murdered by her husband as she could not bear a child. It is true that the house of the accused is at a distance of a quarter mile from the P.O. but for this reason this witness cannot be disbelieved. In a village a quarter mile is nothing. The defence tried to discredit this witness by imputing that criminal case was filed by this witness against A-1 and as such they were inimical terms. This witness deposed in his cross-examination that at the relevant point of time the house of A-1 had its boundary around the house. On scrutiny of this evidence there is no reason to discredit this witness even though he is a relation of the victim. It may be mentioned that the evidence of a relation witness cannot be thrown away out right.

Pw2 is another relation of the victim but he came to the place of occurrence at about 5.30 to 6 a.m on the next day and found that the dead body of the victim was lying with cut injury on her throat and on being asked A-1 not only confessed that he committed the murder but also implicated the co-appellants Sushil (A -2), Bablu (A - 3) and Saidul (A - 4). It is apparent from his evidence that the marriage between A-1 and the victim was a love marriage. He admitted in his cross-examination that the elder brother of A - 1 started a criminal case against PW 1 and Belaluddin (PW-3) but for that reason the evidence of this witness cannot be doubted.

PW3 is the brother of the victim who deposed that the marriage between the victim and A-1 took place 7 or 8 years ago and at the time of marriage the victim was given 40 cent of land by her family members. A-1 told the victim to transfer the said land in his name by registered deed to which she did not agree. This witness further deposed that A-1 wanted to marry for the second time and victim raised objection to that.

It is clear from his evidence that at about 12.30 at night he came to know about the murder of the victim. It is needless to mention that the house of this witness is adjacent to the house of the victim and A-1 and this witness deposed that hearing the cry from the house of A-1 the father of this witness asked him to go to the house and he went there only to find the dead body of the victim lying with a cut injury on her throat on the floor of the room of the house of A-1. This witness further found A-1 was sitting there and in front of several villagers A-1 confessed that he had committed the murder and that he was assisted by Bablu (A- 3) and Saidul (A- 4). This witness denied that any criminal case was pending against him or that he was arrested in connection with any criminal case. This witness successfully withstood the test of cross-examination.

Now let us see what PW 4 deposed. This witness is one co-villager he deposed that Kader informed him regarding the incident of murder which took place 10 years of his examination before the court. When he went to the house of A- 1 he found the dead body of the victim with a cut injury on her throat lying on the floor of the room. A-1 was sitting near the dead body and on being asked by the assembled persons A-1 confessed that he committed the murder of the victim and he further told that he got the help of Bablu Sk. and Saidul Rahaman that is A- 3 and A- 4 respectively. Regarding the motive this witness deposed that the victim had no issue and for that reason A - 1 wanted to marry for the second time and further that A - 1 claimed the landed property of the victim. This witness denied in his cross-examination regarding any criminal litigation between A-1 and him. It is clear from his cross-examination that after marriage A-1 used to stay in the landed property of his uncle (PW 4) Tofiluddin. We like to add that the father of the victim died during the trial. Nothing came out through the cross-examination of this witness to impeach his credibility.

PW5 is also a co-villager who deposed that before 10 years in winter season, he went to the house of the victim and found her body was lying on the floor of the room and A-1 was also there and on being asked he confessed his guilt by saying that he along with Bablu (appellant No. 3) and another committed her murder. A-1 was duly identified by the said witness on the dock. Regarding the motive this witness deposed that some land was given to the victim by her father and the said land was demanded by A-1 to which she did not agree and for that reason she was murdered.

PW 7 is the Pm doctor. He had opined that the death was homicidal in nature. He in his evidence has supported the PM Report. His cross-examination was declined by the defence, therefore the cause of death has been accepted.

For the first time the defence came up with a story admitted by this witness that A-1 told him that some unknown person tied him and committed the offence of murder. It is also clear from her evidence that at first A-1 did not confess his guilt but later on he confessed under pressure of police and the assembled persons.

This portion of the evidence should be read vis-�-vis the other evidence. The FIR was received by the police at the police station at 08.45 hours on 23.12.1993. PW 1 deposed that he himself went to the police station and reached there at about 8 a.m.

It is apparent from the formal FIR (Exhibit 7) that the police station was at a distance of 10 kilometer from the PO and as such the police took some time to arrive at the PO thus it is apparent that PW 1, PW 2 and PW 3 arrived before the arrival of the police. Thus the extra judicial confession made to them can safely be relied upon and will not be vitiated by a single sentence taken in the cross examination of PW 5. It might be that A-1 also made such extra judicial confession before the public after the arrival of the police. We have already told that the Doctor (PW 7) found one cut throat injury and as per his opinion it was the cause of her death.

PW8 is the I.O. of this case. From the evidence of the I.O. as well as the sketch map (Exhibit 8) it appears that there was only one room in that house and there was a weak fencing made of bamboo straw in the house of A-1 and the victim. From the inquest report prepared by him (Exhibit 2) it appears that the dead body of the victim was found inside the room (western bhiti) on the floor with cut throat injury from where there was profuse bleeding. The challan of the dead body prepared by this I.O. also shows that the body was found in the room (western bhiti) room of the deceased at village Baidan. The evidence of the I.O. is also illustrative of the fact that when the wearing apparels of the deceased were seized those were stained with blood. It is also clear from his evidence that A-1 and Sushil Das (appellant No. 2) were arrested. This witness deposed that PW 3 Belaluddin did not state that when he went to the PO he found A-1 sitting there.

In the examination under Section 313 Cr.P.C. the appellant No. 1 while answering question No. 10 stated to the Court that when the inquest report was prepared and the dead body was forwarded he was senseless. This proves that he was present there. The story of dacoity as faintly suggested by the defence did not get any air through the evidence of PW 1 or PW 2. The appellant No. 1 also did not state in clear term that there was any dacoity on that fateful night. Thus, the defence failed to make out any positive case as to how the victim died in the room of the appellant No. 1 who was her husband and not only that he was her only protector.

We are also satisfied from the evidence on record that A-1 was very much there in the house. It is true that the weapon of offence was not recovered but that is an example of defective investigation and for that reason prosecution case cannot suffer thereby giving benefit to the defence.

In view of the discussion so long made we are satisfied that the prosecution duly discharged its burden under Section 101 of the Evidence Act but the accused did not discharge the burden which was squarely on him under Section 106 of the Evidence Act.

Thus, there is merit in the appeal as regards A-1. As regards appellants Nos. 2 to 4 but there is no merit. Thus the appeal is allowed in part without any costs.

Hence it is ordered, that the order of conviction and sentence as passed by the Trial Court as against the appellant No. 1 Md. Moslemuddin is confirmed. The order of conviction and sentence as regards the appellant No. 2 Sushil Das @ Mahanto, appellant No. 3 Bablu Das @ Vhodang Md. and appellant No. 4 Saidur Rahaman are hereby set aside. They may be discharged from their bail bonds. The appellant No. 1 is also on bail and he must surrender, before the court of the CJM, Malda to serve out the remaining portion of the sentence, within 15 days from the communication of the order. The said court will issue notice to the sureties of the said convict forthwith on receipt of a copy of this order.

The Officer-in-charge, Kaliaganj Police Station is directed to inform the appellant-1 regarding this order so that he may comply with the order. The said OC will comply with the order on receipt of the same.

If the appellant No. 1 convict does not surrender before the learned Chief Judicial Magistrate, Malda within the stipulated time then the said court will forfeit the surety bond and impose the full amount as penalty after the period has lapsed. The said court will also issue warrant of arrest against the convict appellant No. 1 after that period if necessary, to ensure serving of sentence.

The ordering portion of this order is directed to be transmitted to the learned Chief Judicial Magistrate, Malda forthwith so that he may take prompt action. This has reference to Kaliaganj Police Station Case No. 126 of 1993 dated 23.12.1993 under Section 302 and Sessions Case No. 72 of 2002.

Criminal section is directed to transmit the lower court record along with a copy of this judgment to the Sessions Judge, Uttar Dinajpur at Raiganj at forthwith.

Seized articles, if any, be destroyed after the period of appeal.

Certified copies be given to the parties on demand as per rules.

N. Patherya, J.

I agree.