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Judgment
In this criminal jail appeal, the appellants, namely, (1) Jagadish Karmakar (A-1), (2) Arun Ghatwal (A-2), (3) Subodh Karmakar (A-3) and (4) Surendra Karmakar @ Mithun (A-4) are questioning the legality of their conviction and sentence U/s 452/323/302/34 IPC in the judgment dated 7-5-2014 passed by the learned Additional Sessions Judge, Khowai, West Tripura in S.T. No. 57(WT/K) of 2012.
The case of the prosecution, in a nutshell, is that on 14-4-2012 at about 1800 hours, the neighbour of the complainant, Sri Rabindra Bhumij went to the house of the complainant (PW-1) to celebrate the Bengali New Year. At about 1900 hours, all the appellants entered the house of PW-1 with lathi, etc. and started beating her and Ashok Nandal (PW-3) along with her guest Rabindra Bhumij (the deceased) causing severe injuries to them including the deceased, who died on the spot. On the basis of the written complaint, the police started investigation of the case. In the course of investigation, the police prepared the sketch map of the place of occurrence with index, surathal report of the dead body of the deceased in presence of witnesses, sent the body for post mortem examination (which was conducted by PW-10), recorded the statements of the witnesses U/s 161 CrPC and seized the fire woods which were used by the appellants and arrested the appellants. After collecting the post mortem report and the injury reports of the witnesses, the police, having found a prima facie case, charge-sheeted the appellants U/s 448/325/302/34 IPC to stand the trial.
The trial court ultimately framed the charge U/s 452/323/302/34 IPC against the appellants, to which they pleaded not guilty and claimed to be tried. To bring home the charge, the prosecution examined 12 witnesses and exhibited fifteen documents and three sticks. In their examination U/s 313 CrPC, all the appellants pleaded that they had been falsely implicated and stated that they would adduce their evidence in their defence. Three defence witnesses including A-1 (DW-1) were accordingly examined. At the conclusion of the trial, all the appellants were found guilty of the charges U/s 452/323/302/34 IPC. They were accordingly sentenced to undergo RI for 3 years U/s 452 IPC, another three months U/s 323 IPC and life imprisonment with fine U/s 302. Aggrieved by this, all the appellants have preferred this appeal.
Unfolding his arguments, Mr. S. Kar Bhowmik, the learned counsel for the appellants, submits that the trial court has failed to appreciate the fact that PW-1 in her examination-in-chief had stated that at the time of the incident, she herself, Ashok Nandal (PW-3), Surjyamani Das (PW-2), Nitu Bhumij and Nripen Das were present, but she, on being confronted with her ejahar, admitted that she did not name anyone to be present at the spot at the time of the incident thereby making her statement suspect. He further contends that the statement of PW-2 that the appellants jointly and severally assaulted the deceased is contradictory to the statement of PW-1, who had stated that A-1 had assaulted the deceased first and followed by A-2, A-3 and A-4; such inconsistent statements raised reasonable ground for doubt in the case of the prosecution. According to the learned counsel, the statements of PW-4, PW-5 and PW-7 are based on hearsay evidence, which ought to have been discarded by the trial court. He finally submits that the trial court did not consider the statements of the defence witnesses in their true perspective and has in the process wrongly convicted the appellants, which cannot be upheld by this Court. On the other hand, Mr. S. Sarkar, the learned Public Prosecutor, supports the impugned conviction and sentence and submits that the evidence adduced by the prosecution, which could not be demolished by the defence in any manner in their cross-examination, have established without any shadow of doubt that the appellants are guilty of the offences charged against them. He, therefore, contends that there is no merit in this appeal, which is liable to be dismissed.
The trial court has rightly divided the evidence of the prosecution into five categories, namely:
Evidence of relative eye witnesses present at the scene of the occurrence and relative witnesses who arrived thereat immediately after the occurrence.
Evidence of neighbour independent witnesses who arrived at PO and heard about the incident and official witness, i.e. IO of the case.
Recovery of three sticks alleged to have been used in the commission of the offences (Exhibit MO-1).
Post Mortem report of the deceased.
Defence witnesses and plea of defence in the cross-examination of witnesses.
PW-1 (Sabitri Das) is the informant in whose house the incident took place. She testified that the incident occurred on the day of Pehala Vaishaka (Bengali New Year) when herself, PW-3, PW-2, Nitu Bhumij and Nripen Das were present. At about 6 PM, the deceased and his son Nitu Bhumij were visiting their house. According to her, at about 6.30 PM, A-1 trespassed into her house with wooden file and gave blow on the head of the deceased; A-2 then came along with arms and caused hurt to the deceased again. She further deposed that soon A-3 and A-4, who along with A-2, collectively caught hold of the deceased thereby enabling A-1 to hit him again by A-1 by wooden file. She further deposed that when she along with PW-3 and PW-2 tried to intervene to prevent their further assault on the deceased, A-1 hit her with a wooden file whereafter she became senseless. According to PW-1, her sister and her husband Ashok were also assaulted by the appellants. She deposed that due to the assault, the deceased died on the spot. She also testified that she lodged the ejahar as written by Pranab Tanti (PW-9) with Champahar Police Station. She identified Exbt.-1 as the ejahar lodged by her. She further testified that due to the incident, she and PW-3 sustained injuries and were treated at Behalabari and Khowai Hospital. The cross-examination of this witness does not elicit anything to falsify her statements except her admission that she did not specifically mention that at the time of incident, her son, Nripendra, and Nitu Bhumij, son of the deceased, were present in her house.
PW-2 is the younger sister of PW-1, who was living with the former, and corroborated PW-1 by deposing that on 1st Vaisakha of the previous year at about 6.30 PM on Saturday, the deceased and his son, Nitu Bhumij, were at their house along with her husband, PW-3, PW-1 and her son, Nripen Das gossiping. It was at that time, deposed PW-2, that A-1 first entered their house with a wooden file and gave a blow on the head of the deceased, and soon he was joined by A-2 with benda, who joined A-1 in the assault of the deceased. According to PW-2, they were soon joined by A-3 and A-4 in the assault of the deceased and when PW-1 tried to thwart the assault, they hit her with wooden file on her head and other parts of her body with the result she fell down with bleeding injuries. She further testified that when her husband (PW-3) also tried to intervene, he was also given fist blows on his head and leg and that she was also given a blow at her waist with a wooden file. She further deposed that the deceased died on the spot. She stated that her injury was not severe, but PW-1 and PW-3 had to be treated in the hospital. Her cross-examination revealed that the dead body of the deceased was lying at their house in the entire night and so were PW-1 and PW-3 as the only tribal vehicle owners in the locality were too drunk on that night to shift the deceased and the injured. Apart from suggestions and denial, nothing tangible came out from the cross-examination of this witness. On the contrary, her testimony strengthens the case of the prosecution and lends credence to the evidence of PW-1. PW-3 testified that he was also at the place of occurrence on that night and that he, PW-1 and PW-2 also sustained injuries due to the assault made on them by the appellants. This witness, therefore, corroborates the evidence of PW-1 and PW-2 on the injuries sustained by them. It is seen that the statements of PW-1 are corroborated by PW-2 and PW-3 in material particulars, namely, the assault made on the deceased, which resulted in his death on the spot and also the assaults made to them by the appellants.
PW-4 is the daughter of the deceased, who arrived at the scene of occurrence just after the incident. According to her, she rushed to the PO and saw her father lying senseless with bleeding injuries on his head and also noticed PW-1 and PW-3 lying on the ground in a senseless condition. She further deposed that she and Nitu went to the house of PW-5, who then went to look for a vehicle but could not arrange one as everybody on that day were found drunk. She, however, deposed that her father expired on the night. According to her, she came to know from Nitu that the appellants assaulted her father and others by means of branches of trees. She testified that she was a witness to the inquest report (Exbt.-2) and put her signature thereon. Her cross-examination is mostly that of suggestions and denials, which are hardly of any assistance to the defence. PW-5 is the younger brother of the deceased, who testified that PW-4 and Nitu called on him whereafter he went to the house of PW-1 just after the incident where he found the deceased lying in the courtyard senseless, who, he thought, had already died by that time. He further testified that PW-4 had told him that A-1, A-2, A-3 and A-4 were responsible for the death of the deceased. He then went to look for a vehicle to shift the injured but could not get one because all the drivers and owners of vehicles were intoxicated. He also stated that the inquest report was prepared by the police in his presence over which they obtained his signature, which was marked as Exbt.2/1. He also deposed that three sticks were seized from the place of occurrence, out of which two were very small which would be one foot and the big one would be 2 feet; one portion of each of these sticks was burnt. The same were also seized by the police by preparing a seizure memo marked as Exhibit-3, while the sticks were marked as Exbt.-MO 1 series. This witness has corroborated the prosecution case on the deceased lying senseless on the courtyard with bleeding injuries on his head. His evidence that he came to know from Nitu, son of the deceased, that the four appellants had assaulted his father is quite relevant inasmuch as the statement was made to him just after the incident. True, the said Nitu was not examined by the prosecution, but that cannot weaken the core of the prosecution case when there is already sufficient evidence on record to convict the appellants.
The law is now well-settled that non-examination of an eyewitness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming out from the mouth of the eyewitnesses examined in the case is found to be trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons, then non-examination of yet another witness who would have merely repeated the same story as has been already narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case.? See Babu Ram v. State of UP, (2002) 6 SCC 518. In cross, he, however, admitted that his statement in his examination-in-chief that it was PW-4 and her brother who called him at the place of occurrence in the house of PW-1, is not there in his statement recorded U/s 161 CrPC. In our opinion, such omission is hardly significant considering the statements of the said eye-witnesses, whose credibility could not be impeached at all by the defense in their cross-examination.
This then takes us to the evidence of PW-6, who testified that on the night of 1st Vaisakha at about 6.30 PM, while he was at home, he saw PW-4 passing by weeping and on being asked, she told him about the incident whereupon he proceeded to the house of PW-1 at about 7 PM and saw the deceased partly inside the hut in a senseless condition with injuries and that he also saw PW-1 lying in another room in a senseless condition. He further testified that he also saw the sister of PW-1 and her brother-in-law sitting on a chatai and on being asked, they informed him that the four appellants had caused hurt to the deceased and others. According to him, he rushed to Sombaira Bazar in SPO Camp on the same night and informed them about the incident but they did not respond. He also stated that he searched for a vehicle but could not get one as all drivers and owners were found intoxicated. He further deposed that on the following morning, he was examined by the police, who seized three burnt wooden pieces, which were exhibited as Exhibit-MO. 1 series, to which he put his signature. In the cross-examination, he, however, admitted that his earlier statements that he had seen PW-4 passing by his house weeping and narrating to him about the incident; that in the house of PW-1, he found the deceased in a senseless condition; that on the very night, he visited SPO Camp but nobody responded, were absent in his statement recorded U/s 161 CrPC. He also admitted in cross that he first tried to know the incident from the sister of PW-1 as to why the appellants had committed offences but could not get the information. He also deposed that he went to the house of A-1 and inquired from his father, but his father informed him that in the night, he could not say anything and he would look into the matter in the morning. In our judgment, minor variation with former statement is not enough to impeach the credibility of the witness. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness. In any case, such omission in his statement recorded U/s 161 CrPC cannot otherwise demolish the case of the prosecution which has now been proved by the trustworthy statements of the other eyewitnesses, who corroborated with each other in material particulars. The prosecution is not required to meet any and every hypothesis put forward by the defense. After all, reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based on reason and common sense.
A meticulous examination of the testimonies of PW-3, PW-4, PW-5 and PW-6 leaves no doubt in our mind that the statements of PW-1, who saw the appellants assaulting the deceased which resulted in his instantaneous death have been fully corroborated by these witnesses in material particulars. It is true that these witnesses are related to the deceased in one way or another, but when the defence could not successfully impeach their credibility, their evidence cannot be rejected merely on the ground that they are the relatives of the deceased. It is a settled law that the evidence of related witness cannot be rejected merely because he is a close relative of the victim. There is no rule of presumption that the evidence of a related witness will always be an interested one or that such witness will have only a hostile attitude towards the accused facing the trial.? Amzad Ali v. State of Assam, (2003) 6 SCC 270. There are some variations in the versions of different prosecution witnesses, upon which the learned counsel for the appellants based his case, but that cannot otherwise destroy the core of the prosecution case. It is his contention that the statement of PW-2 that the appellants jointly and severally assaulted the deceased is contradictory to the statement of PW-1, who had stated that A-1 had assaulted the deceased first and followed by A-2, A-3 and A-4; such inconsistent statements raised reasonable ground for doubt in the case of the prosecution. In our opinion, minor discrepancies on trivial matters not touching the core of the case cannot, ipso facto, be taken advantage of by the appellants to claim a verdict of acquittal. 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. If any authority is needed in this behalf, we may profitably cite the decision of the Apex Court in State of Haryana v. Tek Singh, (1999) 4 SCC 682, the relevant para whereof is found at para 6, which reads thus:
"....... Further, the Court while appreciating the evidence ought to have kept in mind and visualized the situation at the time of occurrence of the incident. The evidence of the witness should be appreciated by keeping the ground reality and the fact situation in mind. It is also established law that even with regard to the interested witness, it is the duty of the court to separate the truth from falsehood and the chaff from the grain. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects the substratum of the prosecution story. In the case of State of U.P. v. M.K. Anthony, (1985) 1 SCC 505: 1998 SCC (Cri) 105: AIR 1985 SC 48 this Court pointed out that 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 found, 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 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, a hyper-technical approach in perusal of the evidence should be avoided. The Court pertinently observed:
"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. Cross-examination is an unequal duel between a rustic and refined lawyer."
This then takes us to the evidence of PW-8 who turned hostile. After declaring him hostile, he was confronted with his previous statement U/s 161 CrPC and denied that he made his statement therein that on 14-4-2012 in the evening at about 7.30 PM, hearing cries from the house of Sabitri, he went to her house and saw PW1, PW-3 and the deceased injured; the deceased was senseless. According to him, he came to know from PW-1 that the four appellants entered their hut and caused hurt to them and that on that night the deceased expired and that he knew that there was some disputes between A-1 and the family of PW-1 for a few months. On being confronted, he admitted the presence of such statements but denied that he ever made such a statement. That portion of the statement was marked Exbt.-4, which was subsequently confirmed by the IO of the case (PW-11) by stating that the same was the statement of PW-8. In our judgment, that portion of the statement of PW-8 marked Exbt.-4 substantially corroborated the statement of PW-1. It is a settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial, and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. In the instant case, apart from the evidence of PW-8, the prosecution version that the deceased, PW-1 and PW-3 were found injured at the house of PW-1 gets corroboration from PW-2, PW-3, PW-4, PW-5 and PW-6. This witness went to the house of PW-1 at about 7 AM after he heard about the assault incident are not important for prosecution or the appellant and need not be referred to for the sake of brevity.
PW-9 is the scribe who drafted the ejahar as dictated by PW-1 and identified the ejahar so drafted by him. PW-10 is the Medical Officer who conducted post mortem examination on the deceased and deposed that the death of the deceased took place in posterior cerebral contusion tissue destruction which were extravasation of blood leading hypovolaemic shock as a result of head injury. He opined that the death of the deceased was homicidal in nature. The evidence of PW-10 corroborates the prosecution version that the deceased was hit on his head by the assailants. The weapons used in the commission of the crime were also seized and exhibited as Exbt.MO-1 series. One of which is big stick or firewood, which if used for hitting a head, can cause fatal injury to a human being. Thus, evidence, i.e. oral evidence of the eye-witnesses as well as medical evidence on record clearly establishes the commission of the crime, the manner in which it was committed and the place where it was committed. In so far as the omission in the ejahar by PW-1 that at the time of the incident, she herself, Ashok Nandal (PW-3), Surjyamani Das (PW-2), Nitu Bhumij and Nripen Das were present in concerned, such omission is not always fatal to the case of the prosecution. What is required is that the information given must disclose the commission of a cognizable offence and must provide the basis for police officer to suspect the commission of such an offence. The mere fact that the names of witnesses are not mentioned in the FIR cannot be ground for doubting the case of the prosecution; there is no requirement of mentioning the names of all witnesses in the first information report.? See State of MP v. Dharkole, (2004) 13 SCC 308. Thus, in our considered opinion, the evidence adduced by the prosecution has clinchingly proved that it is none but the appellants who caused the death of the deceased and injured PW-1, PW-2 and PW-3 on the fateful night. In the light of our findings, the evidence adduced by the defence paled into insignificance and need not be discussed.
The last question to be determined is whether from the proven facts of the prosecution, a case for Section 302 IPC or a case for Section 304 IPC is made out. If the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder contained in Section 300 IPC, the offence would be murder. However, if the case cannot be encompassed by any of the aforesaid Clauses, the offence would be culpable homicide not amounting to murder. In our opinion, the question can be best understood by referring to the case of Gudar Dusadh v. State of Bihar, (1972) 3 SCC 118, at page 120:
"6. The only question with which we are concerned in appeal is whether the offence committed by the appellant is murder or whether it is culpable homicide not amounting to murder. In this respect we find that according to Dr R.S. Singh who performed the post-mortem examination on the dead body of the deceased, the doctor found a lacerated wound 2'' × 1/2'' bone deep on the left side of the head of the deceased. The injury was ante-mortem and had been caused by a weapon like lathi. On dissection the doctor found 3'' long fracture of the left parietal bone about 2 1/2'' from the middle line of the top of the head. On removing the skull the doctor noticed large amount of blood and blood clots on the left side of the brain. Death, in the opinion of the doctor, was due to compression on the left side of the brain. The doctor further stated that the above injury was sufficient in the ordinary course of nature to cause death.
The appellant who caused the above injury to Ramlal deceased, in our opinion, was guilty of the offence of murder and he has been rightly convicted under Section 302 of the Indian Penal Code. The appellant along with his companions was lying in wait to attack Ramlal and, according to the evidence on record which has been accepted by the High Court, he gave a blow on the head of Ramlal as a result of which Ramlal fell down and died instantaneously. It has also been found by the High Court that there was no altercation or exchange of abuses between Ramlal and the accused party. The circumstances of the case thus show that the assault was premeditated and the blow on the head of Ramlal was not accidental. The fact that the appellant gave only one blow on the head would not mitigate the offence of the appellant and make him guilty of the offence of culpable homicide not amounting to murder. The blow on the head of Ramlal with lathi was plainly given with some force and resulted in a 3'' long fracture of the left parietal bone. Ramlal deceased died instantaneously and as such, there arose no occasion for giving a second blow to him. As the injury on the head was deliberate and not accidental and as the injury was sufficient in the ordinary course of nature to cause death, the case against the appellant would fall squarely within the ambit of clause "3rdly" of Section 300 of the Indian Penal Code. According to that clause, culpable homicide is murder 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. Section 300 also provides for some exceptions but we are not concerned with them in this case.
Clause "3rdly" consists of two parts. Under the first part, it has to be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of the deceased. The second part requires that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. So far as the first part is concerned, the court has to see whether the injury which was found on the deceased was the one intended by the accused or whether if was accidental without his having intended to cause that bodily injury. Once it is found that the injury was not accidental and that the accused intended to cause the injury which was actually inflicted and found on the body of the deceased, the first part shall be satisfied. The court would then go into the second part of the clause and find in the light of medical evidence as to whether the bodily injury inflicted was sufficient in the ordinary course of nature to cause death. If the court finds that the requirements of both the parts have been satisfied, the case shall be held to be covered by clause "3rdly" unless it falls within one of the exceptions.
In the present case, both parts of the clause "3rdly" have been satisfied. As observed earlier, the injury which was inflicted by the accused on the head of Ramlal was not accidental. It is not the case of any one that the appellant aimed a blow on some other part of the body and because of some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased. The fact that the appellant aimed a blow on the head of Ramlal with the lathi would go to show that it was the intention of the appellant to cause the precise injury which was found on the head of the deceased. The evidence of Dr R.S. Singh who performed post-mortem examination shows that the above injury was sufficient in the ordinary course of nature to cause death and actually resulted in the death of the deceased. The case of the appellant would thus be covered by clause "3rdly" of Section 300 and he would be guilty of the offence of murder."
In the instant, it is already seen that the medical evidence corroborated the prosecution case that the deceased sustained head injury, which caused the death of the deceased and the death was homicidal in nature. There has also been consistent statements by PW-1, PW-2, PW-3 and PW-4 that the deceased was hit first by A-1 on his head with wooden file measuring about two feet in length and that A-1 was soon after joined by A-2, A-3 and A-4, who caught hold of the deceased while A-1 again hit him by wooden file. On such proved facts, we have no doubt in our mind that the appellants have the intention to cause the death of the deceased when they assaulted him with wooden file. As in Gudar Dusadh case (supra), it is not the case of any one that the appellants aimed a blow on some other part of the body and because of some supervening cause like sudden intervention or movement of the deceased the lathi struck the head of the deceased. The fact that the appellant aimed a blow on the head of deceased with the wooden file and the further fact that he was joined by A-2, A-3 and A-4 would go to show that it was the intention of the appellant to cause the precise injury which was found on the head of the deceased and such head injury was sufficient in the course of nature to cause the death of the deceased. In the view that we have taken, the case of the appellants would be covered by the "thirdly" of Section 300 IPC, and the appellants would be guilty of the offences punishable U/s 302 IPC. The trial court has rightly convicted the appellants U/s 452/323/302/34 IPC. The sentences imposed upon the appellants also do not warrant our interference as we found them to be proportionate to the crime they committed.
The offshoot of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. The appellants shall serve out the remaining period of their sentences. Transmit the LC record forthwith.