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HIGH COURT OF CALCUTTA
J. P. MITRA, DEBABRATA MOOKHERJEE
CHHOTKA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Appeal 385 Of 1957
Decided On : JANUARY 15, 1958
CRIMINAL LAW - Murder - Section 302/34 I. P. C. - Evidence Act, 1872 - Section 6 - Res gestae - Admissibility of statements made by co-accused - Misdirection to the Jury - Section 418(2) and 537 Cr. P. C. - Scope and effect of - Jury's verdict - When can be altered or reversed - Sentence - When can be altered.
Fact of the Case:
The appellant, along with two others, was charged with the murder of one Bhuto. The prosecution case was that the appellant had a dispute with the deceased over a prostitute named Kachi. The appellant had threatened to kill the deceased and had even assaulted him on a previous occasion. On the date of the occurrence, the appellant, along with the other two accused, called the deceased out of his house and took him to a secluded spot where the appellant stabbed him multiple times. The deceased succumbed to his injuries at the hospital.
Finding of the Court:
The court found that the appellant was guilty of murder and sentenced him to death. The court also found that the statements made by the co-accused implicating the appellant were inadmissible in evidence and that the trial judge had misdirected the jury in not warning them about the same. However, the court held that the misdirection did not vitiate the verdict as there was sufficient evidence to prove the appellant's guilt beyond reasonable doubt.
Issues: 1. Whether the statements made by the co-accused implicating the appellant were admissible in evidence? 2. Whether the trial judge misdirected the jury in not warning them about the inadmissibility of the statements made by the co-accused? 3. Whether the misdirection vitiated the verdict? 4. Whether the sentence of death was appropriate in the circumstances of the case?
Ratio Decidendi: 1. The statements made by the co-accused implicating the appellant were inadmissible in evidence under Section 6 of the Evidence Act, 1872, as they were not part of the res gestae and were made at a time when the transaction was not continuing. 2. The trial judge misdirected the jury in not warning them about the inadmissibility of the statements made by the co-accused. 3. The misdirection did not vitiate the verdict as there was sufficient evidence to prove the appellant's guilt beyond reasonable doubt. 4. The sentence of death was appropriate in the circumstances of the case as the appellant had intended to cause the injuries which were sufficient to cause death in the ordinary course of nature.
Final Decision: The conviction of the appellant under Section 302 of the Indian Penal Code was affirmed, but the sentence of death was altered to one of imprisonment for life.
( 1 ) THREE persons, Pannalal Ganguly alias Ganguly alias Chhotka, Shyama Charan Das alias Shyama and Nero alias Dulal Chandra Das alias Panja were tried upon a charge Under Section 302/34 I. P. C. before an Addl. Sessions Judge, 24 Parganas, sitting with a Jury. By a unanimous verdict the Jury found Shyama and Nero not guilty and found by a majority of 7 to 2 the accused Chhotka guilty of the offence of murder. In agreement with these verdicts the trial Judge acquitted Shyama and Nero and convicted Chhotka of murder and sentenced him to death. The condemned prisoner has preferred an appeal. The trial Judge has made a Reference which he was required to do in accordance with the provisions of Section 374 Cr. p. C. , for confirmation of the sentence of death. The appeal and Reference have been heard together. They are disposed of by this judgment.
( 2 ) THE deceased Bhutnath Haldar alias Bhuto lived in a bustee at 54 Tollygunge Road with his mother Mati Bewa and his wife Manada Dasi. Mati Bewa was the owner of the bustee. Bhuto appears to have been a dissolute young man and was seen to associate with the three accused persons in the locality. There was a prostitute named Kachi who, at one time, was in the keeping of a man called Mahabit. Mahabit happened to be incarcerated and this gave opportunity to accused Chhotka and the deceased Bhuto to pay attentions to her. They became rivals and soon fell out. Chhotka appeared to have been complaining that Bhuto had been responsible for keeping Kachi out of his way.
( 3 ) THE case for the prosecution was that about a fortnight prior to the date of the occurrence which was 10-9-1956, the accused Chhotka presented himself, knife in hand at midnight at Bhuto's house and demanded restoration of Kachi under pain of retaliation by way of murder of Bhuto. Next morning accused Chhotka repeated his visit in front of Bhuto's house still carrying a knife in hand.
( 4 ) ON the date of the occurrence, the deceased Bhuto was called away from his house at about 4. 30 or 5 p. m. by the accused Shyama and these two along with accused Chhotka and Nero proceeded south along the Tollygunge Road and had a drink of wine at a comparatively secluded place under the Railway Bridge over the Road. When proceeding towards the bridge, Bhuto told a cousin of his that all disputes had been squared up with his companions which included Chhotka.
( 5 ) AT about 6-30 p. m. the deceased Bhuto with Shyama and Nero came up to the tea shop of one Muralidhar Barik at 94 Tollygunge Road close to Bhuto's house. They sat on the cemented ledge in front of the shop had been served with tea when the accused Chhotka came up from the south at about 7 p. m. and inflicted multiple stab injuries on Bhuto. After the first few blows Bhuto was heard to cry out "chhotkada, do not strike any more; I am bringing Kachi. " The cry was heard by several persons who witnessed the assault. Bhuto reeled into the open drain near by from where he was picked up by the accused Shyama and Nero who placed him first on the Kutcha flank of the Road and then shortly thereafter carried him to the dispensary opposite at 64 Tollygunge Road of a Homeopathic doctor Kalipada Dey by name. The injured was placed on the Verandah of the dispensary where quite a crowd collected. Information reached the mother of the deceased and she rushed to the spot. The cloth which the injured was wearing having been completely soaked in blood, was changed by a piece of cloth supplied by the mother Mati Bewa. An ambulance was called in and the injured was removed to the Mugneeram Bangur Hospital with the assistance of Shyama and Nero who accompanied him to the Hospital. Bhuto's Injuries were severe and he succumbed to them at 10-10 p. m. at the Hospital. A post-mortem examination was held later which revealed that at least ten incised injuries besides several abrasions had been suffered by the deceased.
( 6 ) IN consequence of an information received, t
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