Suresh Kujur vs State Of West Bengal & Ors.

Md. Mumtaz Khan, J.

This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated December 16, 2004 passed by the Additional District and Sessions Judge, 3 rd Fast Track Court, Jalpaiguri in Sessions Trial Case No. 49/04 arising out of Sessions Case No. 84/04 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced him to suffer imprisonment for life and also to pay a fine of Rs. 5000/-(Five thousand).

The case of the prosecution, in brief, is that on March 8, 2004 at about 16:30 hrs there was an altercation between the appellant and the victim, Sanjib Kujur, in front of the shop of Dinesh at Dhira Line, Naya Salee Tea Garden over the issue of Panchyat affairs and in course of altercation appellant struck the victim with a khukri on his head and neck causing severe cut and bleeding injuries therefrom and then fled away seeing the people rushing

there. The victim was then shifted to Naya Salee Tea Garden Hospital where he was declared ‘brought dead’ by the attending Doctor.

P.W.1, father of victim, then lodged a complaint at the Nagrakata P.S. and accordingly on the basis of the said complaint a Nagrakata P.S. case no.10 dated March 8, 2004 under Section 302 IPC was started against the appellant by P.W.15 and the case was endorsed to P.W.18 for investigation who then after completion of investigation submitted charge sheet against the appellant under Section 302 IPC. On August 10, 2004 charge under section

302 IPC was framed against the appellant and on his pleading not guilty trial commenced.

Prosecution examined 18 (eighteen) witnesses and also produced and proved certain documents namely the written complaint, formal FIR, rough sketch map with index, seizure lists, inquest report, post-mortem report, dead body challan, statements recorded under section 164 of the Code of Criminal Procedure(hereinafter referred to as Cr.P.C.), FSL report etc. besides the wearing apparels and the weapon of offence and thereafter on completion of trial and after examination of the accusedappellant under section 313 Cr.P.C. learned trial Judge passed the impugned judgment.

It was submitted by Mr. Partha Sarathi Bhattacharya, learned Advocate appearing for the appellant that the case against the appellant was not proved beyond all reasonable doubt and the impugned order of conviction and sentence is not sustainable in law due to withholding of the first information to the police about the incident, contradiction with regard to the place where the complaint was written, omission of name of the person in the FIR as also the inquest report who saw the incident, delay in recording the statements under section 164 Cr.P.C., non labelling of the khukri after seizure and improper question put to the appellant during his examination under section 313 Cr.P.C. with regard to his involvement in the crime amongst others.

Alternatively it was submitted by Mr. P.S. Bhattacharya, the learned Advocate for the appellant, that the offence under Section 302 IPC was not proved against the appellant beyond doubt and the provisions of Section 304 part I IPC at best may be attracted as there is no evidence on the record to show that the appellant had any intention to kill the deceased rather it happened at the heat of the moment during altercation.

Mr. Bhattacharya relied upon the decision in the matter of Ram Kumar Pandey Vs. State of Madhya Pradesh reported in 1975 S.C.C.(Cri) 225 and Arjun and Another Vs. State of Chhattisgarh reported in (2017) 3 Supreme Court Cases 247 in support of his submissions. Ms. Sukanya Bhattacharya, learned Advocate appearing for the State along with learned senior Advocate Mr. Arun Kumar Maity submitted that the instant case is based on the evidence of eye witnesses corroborated by post occurrence witnesses and medical evidence and there is no need to state all the facts in the FIR nor it is necessary to mention the name of eye witnesses in the inquest report. According to the learned Advocate for the State, prosecution has been able to prove the charge against the appellant beyond all reasonable doubt and as such the judgment passed by the learned court below does not require any interference.

We have considered the submissions advanced by learned counsels appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses and the materials on record for examining the propriety of the impugned judgement. Learned court below took into consideration the evidences of P.W.1 to P.W.5, the eye witnesses, P.W.6, a witness immediate after the occurrence, P.W.8, the brother of the deceased, P.W.9 to P.W.12, before whom appellant made extra-judicial confession and who caught hold the appellant with weapon of offence besides the evidence of the doctor and the police personnel to arrive at a conclusion that the prosecution has been able to prove the charge of committing murder against the accusedappellant and accordingly passed the impugned judgement.

On perusal of the evidence of eye witnesses together with the evidence of the doctor (P.W.14) and the PM report (Ext.7) it was evident that death of the victim was due to sharp cut injuries sustained by him on his neck, face and scalp. According to the doctor, during postmortem examination over the dead body the victim, he found partly incised and partly lacerated injuries on the left lateral aspect of neck, face and scalp of the victim such as (1) left lateral aspect of neck 2'' x 2 ½'' x ½'', (2) 8'' x 4''x 3'', (3) 7''x 3''x 1'',(4) 8'' x 2''x 1'', few of the injuries extended upto bone, all the vessels and nerves in the neck were injured and those were caused by sharp cutting heavy instrument and he opined that death was due to hemorrhage and shock following the above injuries which were ante-mortem and homicidal in nature. On being shown the seized weapon, the khukri (Mat. Ext.I) he clearly stated that by such weapon that kind of injuries may occur. The circumstances leading to the death of the victim has been described in the letter of complaint (Ext.1) including the name of the appellant and also in the inquest report (Ext.2) held by P.W.18 on the same day. On perusal of evidence P.W.1, father of the deceased, we found that he has corroborated the FIR and vividly narrated the entire incident.

He had specifically stated on oath that on the relevant date and time on hearing shouting near the shop of Dinesh Baroa he along with his son, P.W.3 and P.W.5 rushed there and on arriving in front of shop of Dinesh he found that the appellant was assaulting his son, the victim, by a khukri as a result his son sustained injuries on his head and neck and when they tried to apprehend him he fled away therefrom. Thereafter, his son was taken to the hospital but on arrival there doctor declared him dead. He then lodged the complaint which was scribed by his son, P.W.3 as per his instruction. Police then came and examined the dead body in his presence and prepared the report on which he signed and also signed on the seizure list with regard to the seizure of bloodstained earth, controlled earth. He identified the khukri (Mat. Ext.I) and also the appellant during course of his examination before the court. He was cross-examined by the defence at length but nothing came out contrary to his statements in chief. His evidence remained unshaken during cross-examination. The evidence of P.W.1 also found corroboration from other eye witnesses namely P.W.2, P.W.3, P.W.4 and P.W.5. They too were cross-examined by the defence at length but the appellant/accused person failed to discredit their oral testimony with regard to the basic feature towards his involvement in the commission of the offence. They have clearly stated that after assaulting victim when people rushed there appellant fled away therefrom. They identified the appellant on dock.

P.W.18, the I.O. has also affirmed that on the day of incident he could not arrest the appellant as he was not found. P.W.9, P.W.10 and P.W.11 are the villagers who in the morning of March 9, 2004 found the appellant roaming in the Dhira Line with khukri declaring that on the 8th he had murdered the victim with that khukri and on that day also he would murder someone and accordingly they along with other villagers caught hold of him with that khukri and informed the matter to the police and thereafter police came and arrested appellant and seized that khukri (Mat. Ext. I) from his hand.

P.W.12 also deposed that on March 9, 2004 he went to Dhira Line and found the gathering and people were chasing to apprehend the appellant and he also joined them and thereafter appellant was apprehended with khukri and police was informed and then police came and arrested the appellant and seized the khukri from his hand. He also identified Mat. Ext. I to be that khukri seized from the appellant. This also found corroboration from P.W.18, the I.O. They were cross-examined by the defence at length but their evidence also remained unshaken.

Thus, we find that the manner of assault narrated by eye witnesses in causing the injuries on persons of the victim also found corroboration from medical evidence. Ext.13, the FSL report, also confirmed the presence of human blood on the seized khukri, earth and pebbles and the wearing apparel of the deceased but as the blood was not sufficient for test blood group could not be determined. Moreover,we are also of the opinion that non-ascertainability of the blood group cannot be made a basis in all the cases to discard the evidence of the witnesses who otherwise inspire the confidence of the Court and are believed. The evidence of eye witnesses on oath appeared to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears to be no reason why the eye witnesses will falsely implicated the appellant and there in fact, nothing on record to suggest that the witnesses had any reason to falsely implicated him.

With regard to withholding of the information to the police station about the incident, we find from the evidence of P.W.1 that he is the resident of Naya Salee Tea Garden and a staff of that garden and probably for that reason he informed the matter to the Manager of that garden. But nowhere P.W.1 has stated that he informed the incident to the P.S. over phone. He merely stated that Manager informed the matter to the P.S. but P.W.18, the investigating officer, has clearly stated during his cross-examination that no such telephone message about the incident was received at the P.S. on that date. On the other hand it is evident from the evidence on record that from the place of occurrence P.W.1 along with others took the victim to the Naya Salee hospital where his son was declared dead by the doctor and thereafter he lodged the complaint (Ext.1) scribed by P.W.3 as per his instruction at the police station. The incident in question took place at about 16.30 hrs. and the formal FIR (Ext.8) shows that the written complaint was received at the P.S., which is about 12 Km. away from the place of occurrence, within 1½ hours. So, considering the distance of the P.S. from the place of occurrence, the time consumed in shifting the victim to the hospital where he was declared dead, writing the complaint and then submission of the same at the P.S. within 1 ½ hrs. of the incident rules out theory of fabrication of FIR and distortion of actual fact thereby sparing the actual culprit. So the plea with regard to withholding of the information to the P.S. does not hold good.

Similarly, with regard to contradiction as to the place where the complaint was written, we find from the evidence of P.W.1 that after death of the victim at the hospital he instructed P.W.3 to write the complaint who then wrote the same at the hospital and after that it was submitted at the P.S. It is true that during cross-examination P.W.1 initially stated about writing of the complaint at the P.S. but immediately he rectified it and stated that the complaint (Ext.1) was written at the hospital. This also found corroboration from P.W.3 and his evidence on oath went on unchallenged. So, the plea with regard to contradiction as to the place where the complaint was written also does not hold good. Therefore, the propriety of the impugned judgment cannot be questioned on the above grounds.

With regard to omission of the name of the persons in the FIR who saw the incident, it is true that FIR is silent on that score but that cannot be a ground for disbelieving the eye witnesses and the prosecution case in view of the proposition of law that law would not expect mentioning of minutest details in FIR. Though, in the case in hand, we find that FIR is very clear about the date, time and place of occurrence of the incident and involvement of the appellant in the commission of the said offence and shifting of the victim in the hospital in serious condition where he succumbed to the injuries.

It is the settled proposition of law that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same itself is not the proof of a crime but is a piece of evidence which can be used for corroborating prosecution case. The FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. So in view of the above, we are of the opinion that non-disclosure of the name of any person who saw the incident in the FIR had no adverse effect on the finding of the learned court below.

Regarding non-mentioning of the name of eye witnesses in the inquest report, we find from the record that PW18 made inquest over the dead body of the victim in presence of P.W.1 and P.W.6 at Naya Salu Tea Garden Hospital on the same day where he succumbed to his injuries. It is evident from the inquest report (Ext.2) that date, time and place of occurrence, including the name of the appellant as assailant has been mentioned therein. The provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. So, the absence of the name of any eye witness to the incident is not fatal and no inference adverse to the prosecution could be drawn for the same. Therefore, our interference with the impugned judgment is not required on the above ground.

With regard to the submission of the learned Advocate for the appellant that improper question was put to the appellant during his examination under section 313 Cr.P.C. as to his involvement in the crime, we do agree that there was no scope to put any question to the accused during his examination under section 313 of the Code of Criminal Procedure over the matter not appearing in evidence. It is settled law that as part of fair trial, section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstance appearing against him in the evidence adduced by the prosecution.

It is not necessary to put the entire prosecution evidence and elicit answer but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. The circumstances are to be put and not the conclusion. Merely because of defective questioning under section 313 Cr. P. C., it cannot be inferred that any prejudice had been caused to the accused. The burden is upon the accused to prove that prejudice has been caused to him and that it has occasioned failure of justice to him but from the record we find that such plea of prejudice is raised before this court for the first time. From the questions put to the appellant during his examination under section 313 Cr.P.C., we find that the circumstances which were adverse to the appellant were duly put to him and he gave replies thereto and also set up his defence. In view of the above the contention of the appellant does not lead us to interfere with the impugned judgment on this score.

Regarding delay in recording the statements of witnesses under section 164 Cr.P.C. and non labelling of the khukri after seizure, we find from the record that the statements of the witnesses recorded under section 164 Cr. P. C. were not relied on by the trial judge while holding the appellant guilty of the commission of offence of murder. Moreover, statements of a witness recorded under section 164 Cr. P. C. is not a substantive evidence. It can be used to corroborate or contradict a witness. Similarly, non labelling of the khukri after seizure is the fault on the part of the investigating officer.

P.W.18,the investigating officer, during examination admitted his fault saying that he was not aware about the procedure with regard to lebelling of the seized article and obtaining the signatures of the witnesses on the label. These are lapses on the part of the investigating officer. It is settled law that for certain defects in investigation, lapses on the part of the investigating officer, the accused persons can not be acquitted and it is the obligation on the part of the Court to scrutinies the prosecution evidence de hors such lapses to find out whether such lapses affect the object of finding out truth.

It was observed by the Hon’ble Supreme Court in Karnel Singh vs. State of M.P., reported in (1995) 5 SCC 518 that in cases of defective investigation the court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. Otherwise it would amount to depending too much on the investigating officer in the event the investigation is designedly defective. It has also been held by the Hon’ble Supreme Court in the matter of Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518 that in a case where the prosecution case is fully established by the direct testimony of the eyewitness, 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.

In the present case all the eye witnesses have categorically stated that they saw the appellant to assault the victim by the khukri (Mat Ext.I) thereby causing injuries on the person of the victim and the wounds noticed by the doctor and his opinion about the weapon which can cause such type of injuries also throw a considerable light on this aspect. Thus, we find that prosecution case was fully established by the direct testimony of the eyewitness, which was corroborated by the medical evidence. Therefore, our interference with the impugned judgment is not required on the above grounds.

The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I IPC, as raised by the learned Advocate for the appellant. Once the elements mentioned in Exceptions to Section 300, IPC are not established, the offence is murder. In the event a case comes within the elements prescribed in Exceptions to Section 300 IPC, it is culpable homicide not amounting to murder.

The provisions of Section 300, IPC are set 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.”

In the case in our hand we find that the appellant over previous enmity over the issue of Panchyat affairs had altercation with the victim and then struck the victim with a khukri on his head and neck causing severe cut and bleeding injuries therefrom and fled away seeing the people rushing there.

Victim was immediately taken to the hospital where he was declared brought dead by the attending doctor. During postmortem examination doctor found partly incised and partly lacerated injuries on the left lateral aspect of neck,face and scalp of the victim such as (1) left lateral aspect of neck 2'' x 2 ½'' x ½'', (2) 8'' x 4''x 3'', (3) 7''x 3''x 1'',(4) 8'' x 2''x 1'', few of the injuries extended upto bone, all the vessels and nerves in the neck were injured and those were caused by sharp cutting heavy instrument and he opined that death was due to hemorrhage and shock following the above injuries which were antemortem and homicidal in nature. It was also evident from the evidence on record that even after causing death of the victim appellant was not repentant rather boldly declaring that he killed the victim and he will do so again to someone else and accordingly he was chased and apprehended by the villagers with the weapon and handed over to the police. So, all these reveals that the intention was clear to cause death.

Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302 IPC against the appellant.

In view of the distinguishable facts and circumstances involved in this case, as discussed hereinabove, the decisions of Ram Kumar Pandey (Supra) and Arjun and Another (Supra) do not help the appellant.Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed herein above. We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.

Copy of this judgement along with the lower court records be sent down to the trial court for information and taking necessary action. Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.