Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 405 of 2008
Promode Dey ...... Appellant
Versus
State of West Bengal ..... Respondent
J U D G M E N T
A. K. PATNAIK, J.
This is an appeal by way of special leave under Article 136 of the
Constitution of India against the judgment dated 18.07.2006 of the High
Court of Calcutta in C.R.A. No.446 of 2004 sustaining the conviction and
sentence of life imprisonment on the appellant under Section 302 of the
Indian Penal Code (for short 'the IPC') imposed by the Fast Track Court,
Cooch Behar, in Sessions Case No.142 of 2002 (S.T. No.1(3)2002).
2. The facts very briefly are that one Puspa Nandi lodged a complaint
before the Inspector-in-charge, Kotwali P.S., that on 23.02.2002 at
about 10.00 a.m. she went to Nayarhat to purchase some ration and
there she heard that her daughter-in-law Pratima Nandi had been
murdered. She rushed to her house and saw that Pratima was lying dead
at the southern side of her house and when she enquired, her grand
daughter, Manika, told her that the appellant entered into their house
with a big daa and killed her mother Pratima. The complaint was
registered as an FIR and the appellant was arrested on 23.02.2002 and
the daa alleged to have been used in killing the deceased was
recovered from a jungle at the side of the house of the appellant. On
25.02.2002, the statement of Manika was recorded by a Magistrate under
Section 164 of the Criminal Procedure Code (for short 'the Cr.P.C.').
The post-mortem was carried out by Dr. V. Kumar and after
investigation, charge-sheet was filed against the appellant under
Section 302 of the IPC and trial was conducted.
3. Manika, who was aged only eight years at the time of trial, was
examined as PW-2 and she gave a vivid account of how her mother
Pratima was killed by the appellant with a daa. PW-1 (the
complainant and the mother-in-law of the deceased), PW-8 (a resident
of village Sajerpar in which the house of the deceased is located) and
PW-11 (the husband of the deceased) who had heard soon after the
incident from PW-2 that the appellant had killed the deceased with a
daa, also supported the prosecution case. PW-3, PW-4 and PW-5, who
were residents of village Sajerpar, however, turned hostile and said
that they have not given any statement to the Police on how the
deceased was murdered. PW-6, who was alleged to have scribed the FIR,
also turned hostile saying that he had written the FIR on instructions
from the Police, but he did not know the complainant PW-1. PW-7, who
was a resident of village Sajerpar, said that he knew neither the
appellant nor the deceased. PW-9, who was also a resident of the
village Sajerpar, deposed that she did not know how the deceased was
murdered. Dr. V. Kumar, who carried out the post-mortem, was examined
as PW-10 and he described the injuries on the body of the deceased and
opined that the injuries could be caused by a sharp-cutting weapon and
the injuries are 100% sufficient for causing death of the victim. PW-
12 is the Officer-in-charge of Kotwali P.S. and he received the
complaint of PW-1 and entrusted the investigation to S.I. D. Jha.
PW-13 is the constable of Kotwali P.S. who took the dead body of the
deceased to Sadar Hospital for post-mortem. PW-14 is S.I. D. Jha, the
Investigating Officer, and he has said that the appellant took him to
the jungle by the side of his house and he brought out one daa from
the jungle which was blood-stained at that time and he seized a daa
from him and prepared a seizure list (Ext.6) in the presence of the
witnesses. PW-15 is S.I. D. Bhowmick to whom further investigation
was entrusted and who after further investigation submitted the charge-
sheet. On the basis of the evidence, the trial court convicted the
appellant under Section 302, IPC. Thereafter, the trial court heard
the appellant on the question of sentence and considering his age and
other related factors, sentenced him to rigorous imprisonment for
life.
4. The appellant carried an appeal to the High Court, but the High Court
was of the view that the evidence of PW-2 as corroborated by the
evidence of PW-1, PW-8 and PW-11 together with the fact of recovery of
the daa (material Ext.1) at the instance of the appellant and its
seizure under Ext.6 soon after the incident had established that the
appellant was guilty of the offence of murdering the deceased.
5. Learned counsel for the appellant submitted that the conviction of the
appellant is based on the sole testimony of a child witness PW-2.
Relying on the decision of this Court in Arbind Singh v. State of
Bihar [1994 SCC (Cri) 1418], he submitted that where the entire case
is based on the evidence of a child witness, who is prone to tutoring,
the conviction is not safe. He further submitted that the Magistrate
before whom the statement under Section 164 of the Cr.P.C. was
recorded has not been examined. He also submitted that Anath De, the
granduncle of PW-2, who was present in the house, has also not been
examined. He argued that PW-3, PW-4, PW-5, PW-6, PW-7 and PW-9 have
all turned hostile and not supported the prosecution case. He
submitted that PW-1 has also deposed that he wrote the FIR on the
direction of the Police. He finally submitted that from the evidence
of PW-15, the I.O., who carried out the further investigation, it is
clear that the blood-stained daa was sent for examination to the
Forensic Science Laboratory (FSL) but the FSL report has not been
produced before the Court. He submitted that the prosecution has,
therefore, not been able to prove that the appellant has committed the
murder of the deceased beyond reasonable doubt.
6. Learned counsel for the respondent, on the other hand, submitted that
in State of Madhya Pradesh v. Ramesh & Anr. [(2011) 4 SCC 786] this
Court has held that in case the deposition of a child witness inspires
confidence, the Court may rely upon his evidence. He submitted that
there is no reason to think that PW-2 was tutored to give her evidence
against the appellant. He submitted that in any case, as has been
found by the High Court, the evidence of PW-2 is corroborated by the
evidence of PW-1, PW-8 and PW-11. He submitted that the daa, with
which the deceased was killed by the appellant, was also recovered at
the instance of the appellant from a jungle by the side of the house
of the appellant as per seizure list (Ext.6). He argued that since
the prosecution has proved by the evidence of PW-2 as corroborated by
the evidence of PW-1, PW-8 and PW-11 and Ext.6 that the appellant had
committed the murder of the deceased, he cannot be acquitted only on
the ground that some of the prosecution witnesses have turned hostile
and have not supported the prosecution case. He argued that the fact
that the FSL report was not collected from the FSL may be a defect in
the investigation but a defect in investigation cannot result in
acquittal of an accused against whom enough evidence is available for
conviction. In support of this proposition, he relied on the decision
of this Court in Ramappa Halappa Pujar & Ors. v. State of Karnataka
[(2007) 13 SCC 31].
7. We have perused the decision of this Court in Arbind Singh v. State of
Bihar (supra) cited by learned counsel for the appellant and we find
that in that case the Court took the view that implicit faith and
reliance could not be placed on the evidence of a child witness as
there were variations in her statement recorded on 25.10.1984,
28.10.1984 and 05.11.1984 and there were traces of tutoring on certain
aspects of the case and it was not corroborated by any independent and
reliable evidence. In the present case, on the other hand, we find
that PW-2 had answered the first few questions put by the court very
smartly and intelligently and the Court has made a mention while
recording her evidence that she could become a witness in this case.
That apart, she has given a very natural account of how the appellant
killed her mother. The relevant portion of the evidence of PW-2 is
extracted hereinbelow:
"On 10th Falgun, Saturday at around 10.00 Hrs. she was killed by a
person. Promode Dey killed my mother by striking on her head, back,
fingers and throat with a Dao. I know that Promode Dey. He is now
standing inside the Court room.
At the time of incident my mother Pratima Nandi was making bidi
sitting in the courtyard of our house. I was sitting just beside
her. That time Promode Dey came to that place and asked my mother
as to why my mother gave him medicine. Promode Dey told my mother
"you have tried to kill me by medicine. I shall kill you." By
saying so Promode Nandi hit my mother's head with a Dao. My mother
thus fled away and entered into our room. Promode Dey broke the
said door and entered into that room and again hit my mother with
Dao. Then my mother came out of that room and accused Promode Dey
followed her and came out of that room and again assaulted her with
Dao. Then my mother again ran and thereafter fell on the ground.
The accused hit my mother on her throat with Dao and the major
portion of her throat was thus out and only a remaining portion of
the head was still attached with the neck. I have seen the entire
incident. That time, I shouted to call my grand mother but none
came at my shouting. In the meantime Promode Dey returned to his
house along with Dao.
8. Moreover, soon after the incident on 23.02.2002 she has told her
grandmother (PW-1) and her father (PW-11) that it was the appellant
who had killed the deceased and both PW-1 and PW-11 have deposed
before the Court in their evidence that they have been told by PW-2
that the appellant had killed the deceased with a daa. PW-8, who was
a resident of the area, has also stated in his evidence that soon
after the incident he had heard PW-2 saying that the appellant had
killed the deceased. Moreover, two days after the incident on
25.02.2002 she had given a statement before the Magistrate under
Section 164, Cr.P.C., that the Panchayat, namely, the appellant, had
killed the deceased by a daa. Thus, right from the time of the
evidence till the time she was examined in court, PW-2 has
consistently said that the appellant had killed the deceased with the
daa. We cannot, therefore, hold that PW-2 has been tutored to depose
against the appellant.
9. The evidence of PW-2 is also corroborated by the fact that a blood-
stained daa was recovered on the very date of the incident from a
jungle by the side of the house of the appellant. This is clear from
the evidence of PW-14, the I.O., who had said that after the appellant
was interrogated he took him to the jungle by the side of his house
and he drew one daa from that jungle and the daa was blood-stained at
that time and he seized a daa from him and prepared a seizure list in
the presence of the witnesses, which is marked as Ext.6. The medical
evidence of PW-10 does not also contradict the evidence of PW-2 that
the appellant struck the deceased on her head, back, fingers and her
throat. PW-10 has stated that there were sharp cutting injuries on
the left side of neck, left cheek, both the upper arms and left thumb
and the injures were ante-mortem in nature and are 100% sufficient for
causing death of the victim and a sharp cutting weapon has been used
to cause the injuries.
10. We do not find any merit in the submission of the learned counsel for
the appellant that the Magistrate before whom the statement under
Section 164 Cr.P.C. was recorded has not been examined because the
conviction of the appellant is based not on the statement of PW-2
recorded under Section 164 Cr.P.C. but on the evidence of PW-2
examined as a witness before the Court at the time of trial. In other
words, even if the statement of PW-2 recorded under Section 164
Cr.P.C. is excluded from consideration, the offence is proved against
the appellant by the substantive evidence of PW-2 and the evidence of
PW-1, PW-8, PW-11 and by the fact of recovery of a daa at the
instance of the appellant. Similarly, we do not find any merit in the
contentions of the learned counsel for the appellant that PW-3, PW-4,
PW-5, PW-6, PW-7 and PW-9 do not support the prosecution case and that
the FSL Report was not collected from the Forensic Science Laboratory
if the guilt of the appellant is established beyond reasonable doubt
through the evidence of PW-1, PW-2, PW-8, PW-11 and Ex.6. We cannot
also draw any adverse inference from the fact that Anath Dey, the
granduncle of Manika, was not examined, as he was neither the
eyewitness nor the complainant and was in fact not in the same house
where the incident occurred as would be clear from the evidence of PW-
2.
11. In our considered opinion, the High Court is right in sustaining the
conviction of the appellant on the basis of the eyewitness account of
PW-2 and the evidence of PW-1, PW-8 and PW-11 as well as the recovery
of the daa under Ext.6 at the instance of the appellant. The impugned
judgment of the High Court is, therefore, sustained and the appeal is
dismissed.
.............................J.
(A. K.
Patnaik)
.............................J.
(Swatanter Kumar)
New Delhi,
March 22, 2012.
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