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2020 Supreme(Cal) 423
IN THE HIGH COURT OF CALCUTTA
Sahidullah Munshi, Subhasis Dasgupta, JJ.
Bhambal Maity - Appellant
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 639 of 2017
Decided On : 17-06-2020
Pratick Kr Bhattacharyya, Advocate, Debasish Nandy, Advocate, Anubrata Santra, Advocate, Monoranjan Karmakar, Advocate, Arun Kumar Maity, Advocate, Trina Mitra, Advocate, N.P. Agarwala, Advocate
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - CONVICTION AND SENTENCE - DIRECT WITNESSES - PLACE OF OCCURRENCE - SECTION 273 CRPC - SECTION 162 CRPC - SEIZURE OF WEAPON - SECTION 313 CRPC - DEFECTIVE CHARGE - SECTION 114(G) EVIDENCE ACT - BENEFIT OF DOUBT - SECTION 173(6) CRPC - INVESTIGATION - SECTION 300 IPC - CULPABILITY - CONVICTION AND SENTENCE UPHELD.
Fact of the Case:
The accused was convicted under Section 302 of the Indian Penal Code for causing the death of the deceased by inflicting fatal injuries with an axe. The prosecution relied on the testimony of three direct witnesses, PW-1 (the deceased's elder brother), PW-3 and PW-5 (the deceased's nephews), who claimed to have witnessed the incident. The accused challenged the conviction on various grounds, including discrepancies in the testimony of the direct witnesses, improper identification of the place of occurrence, violation of Section 273 CrPC (prohibiting the recording of evidence in the absence of the accused), suppression of the FIR under Section 162 CrPC, improper seizure of the weapon of assault, prejudice caused during the examination under Section 313 CrPC, defective charge under Section 211 CrPC, withholding of independent witnesses under Section 114(g) of the Evidence Act, and the benefit of doubt.
Finding of the Court:
The court found that the discrepancies in the testimony of the direct witnesses were minor and did not affect the prosecution case substantially. The place of occurrence was sufficiently identified by the witnesses, and the violation of Section 273 CrPC was not fatal as the accused was present during the cross-examination of PW-1. The FIR was not hit by Section 162 CrPC as there was no evidence of suppression or manipulation. The seizure of the weapon of assault was proper, even though it did not fall under Section 27 of the Indian Evidence Act. The examination under Section 313 CrPC was conducted fairly, and the accused was given ample opportunity to explain the incriminating evidence. The charge framed against the accused was not defective as it provided sufficient notice of the offense charged. The prosecution was not required to examine all available witnesses, and the withholding of independent witnesses did not attract the mischief of Section 114(g) of the Evidence Act. The accused was not entitled to the benefit of doubt as the evidence against him was strong and consistent.
Issues: 1. Whether the discrepancies in the testimony of the direct witnesses rendered the prosecution case unreliable. 2. Whether the place of occurrence was properly identified. 3. Whether the violation of Section 273 CrPC vitiated the trial. 4. Whether the FIR was hit by Section 162 CrPC. 5. Whether the seizure of the weapon of assault was proper. 6. Whether the accused was prejudiced during the examination under Section 313 CrPC. 7. Whether the charge framed against the accused was defective. 8. Whether the prosecution was required to examine all available witnesses. 9. Whether the accused was entitled to the benefit of doubt.
Ratio Decidendi: 1. Minor discrepancies in the testimony of witnesses do not render the prosecution case unreliable unless they affect the prosecution substantially. 2. The place of occurrence can be sufficiently identified by the witnesses, even if there are some variations in their descriptions. 3. A violation of Section 273 CrPC is not fatal if the accused is present during the cross-examination of the witness. 4. The FIR is not hit by Section 162 CrPC in the absence of evidence of suppression or manipulation. 5. The seizure of a weapon of assault is proper, even if it does not fall under Section 27 of the Indian Evidence Act, as long as it is proved by the seizing officer. 6. The examination under Section 313 CrPC must be conducted fairly, and the accused must be given ample opportunity to explain the incriminating evidence. 7. A charge framed against the accused is not defective if it provides sufficient notice of the offense charged. 8. The prosecution is not required to examine all available witnesses, and the withholding of independent witnesses does not attract the mischief of Section 114(g) of the Evidence Act. 9. The accused is not entitled to the benefit of doubt if the evidence against him is strong and consistent.
Final Decision: The appeal was dismissed, and the conviction and sentence imposed by the trial court were upheld.
JUDGMENT
Subhasis Dasgupta, J. - This criminal appeal is preferred against the judgment and order of conviction, passed by learned Additional Sessions Judge, Baruipur, South 24 Parganas in Sessions case No. 67 (12) 2005 convicting the accused/appellant under Section 302 of Indian Penal Code, and sentencing him thereunder to suffer life imprisonment, and to pay a fine of Rs.10,000/- (ten thousand) with default stipulation of rigours imprisonment for additional 2 (two) years.
2. The accused/appellant assailed the order of conviction and sentence taking resort to multiple grounds in order to establish that the order of conviction was an improper exercise of authority vested to learned Trial Judge by not adhering to established principle of criminal jurisprudence.
3. Before addressing the points, it would be relevant here and pertinent also to mention the established facts precisely for addressing the issues raised perfectly.
4. De-Facto complainant happens to be the elder brother of deceased, a wood merchant. On 15th May, 2005 at about 5.30 A.M in the morning, while complainant was in his bathroom, situated in the back side of his house, suddenly one unknown passer-by/van puller informed complainant that accused Bhombal Maity, an adjoining shop owner of the house of deceased had been chasing his deceased brother, Basudeb Sha, taking axe in his hand to kill him. Complainant then instantly came out of his house, and while searching, he could find from a tea stall of Ilias, situated at the bank of Matla river that his brother was lying half dead then on the bank of river. Complainant also found accused, Bhombal Maity running away with axe in his hand from the bank of river. The bewildered brother/complainant having felt urgency of securing medical attention to his injured brother, could not chase the assailant of his brother. Injured was taken to hospital. Ultimately the injured brother of complainant took his last breath on the way to hospital. The hospital authority accordingly declared injured, Basudeb Sha to have already suffered death in the meantime. Police receiving death news from hospital authority, held inquest over the dead body, and ultimately took up investigation, receiving a complaint from de-facto complainant, Jagannath Sha at 07.55 hrs. on 15.05.2004. The dead body was subjected to autopsy. On conclusion of investigation police submitted charge sheet.
5. The trial court framed charge against the accused/appellant under Section 302 I.P.C., and concluded the trial collecting as many as eleven (11) witnesses.
6. Defence plea set up during trial is denial of offence together with false implication, even after when opportunities were extended to accused/appellant to explain the incriminatory evidence brought against him in course of examination under Section 313 Cr.P.C. An endeavour was also made by accused/appellant in support of his available defence by putting suggestion in the form of denial that accused/appellant was illegally roped in this case after grabbing his property including his shop most illegally, which was, however, denied by the witnesses examined during trial.
7. Out of eleven (11) witnesses examined, PW-1, PW-3 and PW-5 are said to have witnessed the incident as direct witness to the incident, who are elder brother and nephews of deceased respectively. PW-2 is the scribe of F.I.R, PW-4 is relative of PW-1, a post occurrence witness. PW-6 is a hostile witness, standing in front of whose tea stall, PW-1 could find his injured brother lying half dead on the bank of Matla river, and accused fleeing away from the spot taking axe in his hand. PW-7 and PW-8 are the seizure witnesses in respect of a chappal and weapon of assault, said to have been used in the instant crime. PW-9 is a van puller producing dead body of deceased to post-mortem doctor for autopsy. PW-10 is an autopsy surgeon, while PW-11 is the Investigating Officer, who submitted charge sheet in this case. This is all about the evidence collected
