Back
IN THE HIGH COURT OF CALCUTTA
Indira Banerjee, Sahidullah Munshi, JJ.
Nanda Chatterjee - Appellant
Versus
State of West Bengal and others - Respondents
C.R.A. 633, 646 of 2009 with C.R.R. 3702 of 2009
Decided On : 08-12-2014
For the Appellant :Jayanta Narayan Chatterjee and Kaushik Chowdhury, Advocates
For the State :Manjit Singh, Ld. P.P. and Anasuya Sinha, Advocate
The testimony of a four-year-old child witness is unreliable in a murder trial due to the possibility of tutoring and imaginary concoction.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302/34 IPC - CONVICTION BASED ON TESTIMONY OF FOUR YEAR OLD CHILD WITNESS - EVIDENCE OF CHILD WITNESS FOUND UNRELIABLE DUE TO POSSIBILITY OF TUTORING AND IMAGINARY CONCOCTION - CONVICTION SET ASIDE.
Fact of the Case:
The appellants were convicted under Section 302/34 of the Indian Penal Code for the murder of the deceased, Rumpa Pain, who was the wife of appellant Kanchan Pain and daughter-in-law of appellants Ramesh Pain and Sova Pain. The prosecution alleged that the appellants had demanded a dowry of Rs. 1,00,000/- from the deceased's family and that they had tortured her for not being able to pay the full amount. The prosecution's case rested primarily on the testimony of the deceased's four-year-old daughter, who claimed to have witnessed the murder.
Finding of the Court:
The Court found that the conviction of the appellants was based solely on the testimony of the four-year-old child witness, which was unreliable due to the possibility of tutoring and imaginary concoction. The Court noted that the child witness had initially refused to speak about the incident and had only given evidence after 1½ years, by which time she had been with her maternal grandparents for about 2 years. The Court also noted that the child witness's evidence contained several discrepancies and that her maternal grandmother was present when she made her statement under Section 164 of the Cr.P.C.
Issues: 1. Whether the testimony of a four-year-old child witness is reliable in a murder trial. 2. Whether the prosecution had proved beyond reasonable doubt that the appellants had murdered the deceased.
Ratio Decidendi: The Court held that the testimony of a four-year-old child witness is unreliable in a murder trial due to the possibility of tutoring and imaginary concoction. The Court further held that the prosecution had failed to prove beyond reasonable doubt that the appellants had murdered the deceased.
Final Decision: The Court allowed both appeals and set aside the impugned Judgment and Order of conviction.
Indira Banerjee, J.
These appeals, being CRA 633 of 2009, hereinafter referred to as the first appeal, and CRA 646 of 2009, hereinafter referred to as the second appeal, are against the judgment dated 30th July, 2009 and the order dated 31st July, 2009 passed by the Court of the learned Additional Sessions Judge, 1st Court, Bankura, in Sessions Trial No.1 of November 2006, corresponding to Sessions Case No.26 of May 2006, whereby the appellants in the first appeal, Ramesh Pain, Sova Pain and Kanchan Pain, and the appellant in the second appeal, Nanda Chatterjee, have been convicted under Section 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life, in addition to fine of Rs. 2,000/- each, in default of payment whereof, they would have to suffer further rigorous imprisonment for a period of six months.
2. The accused appellant No.3 in the second appeal, Kanchan Pain, is the husband of the deceased, Rumpa Pain, and the accused appellant Nos.1 and 2 in the said appeal, Ramesh Pain and Sova Pain are his father and mother respectively. The accused appellant in the second appeal, Nanda Chatterjee is accused appellant Kanchan Pains cousin (mothers brothers son).
3. The de facto complainant, in this case, is the father of the deceased. The de facto complainant and the accused appellants were next door neighbours. It is the case of the prosecution that the deceased, Rumpa, had a love marriage with accused appellant Kanchan Pain. The marriage was by registration before the Marriage Registrar concerned.
4. The marriage was socially solemnised sometime in the month of April 2000. At the time of social solemnisation of the marriage, the accused appellant Nos.1 and 2, in the second appeal, being the parents-in-law of Rumpa, allegedly demanded Rs. 1,00,000/- in cash, apart from other valuables.
5. After marriage, Rumpa started residing in her matrimonial home, along with her husband, accused appellant Kanchan Pain and other members of his family.
6. It is the case of the prosecution that the de facto complainant could not pay the entire sum of Rs. 1,00,000/- demanded by the parents-in-law of the deceased, but could pay only Rs. 55,000/-.
7. It is the further case of the prosecution, that Rumpa used to be tortured by her husband and her in-laws, for the remaining part of the dowry and whenever she visited her parents she would tell them of the torture inflicted upon her.
8. On 12th August, 2005, at about 12 mid-night, accused appellant Kanchan Pain, being the husband of the deceased, came to the residence of the de facto complainant and informed him that Rumpa had hanged herself.
9. Immediately on hearing this, the de facto complainant went to the residence of the accused appellants, along with others, and found Rumpa lying on a bed, facing the ceiling with her eyes open, and accused appellant Kanchan Pain fanning her. The deceased was later taken to hospital where she was declared brought dead.
10. Inquest was carried out over the body of the deceased. The inquest report reveals that the deceased, Rumpa, appeared to be pregnant. The report also indicates that there was white substance oozing from her mouth. However to ascertain the actual cause of death, the Officer-in-charge, Bankura Police Station was directed to arrange for Post Mortem examination of the dead body.
11. Post Mortem was conducted. The post mortem report indicates that the death was due to the effect of asphyxia, ante mortem in nature. However, further opinion was to be given on receipt of the chemical examination report. The post mortem report reveals that there was one pale indistinct non-continuous ligature mark on the neck, above the hyoid and the throat.
12. On 13th August 2005, the de facto complainant lodged a complaint in the Bankura Police Station, pursuant to which Bankura Police Station Case No.201/05 dated 3rd August, 2005 was started under Sections 498A/304B/302/34 of the Indian Penal Code.
13. After investigation was completed, the learned
