Bairus Kerketta v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** PRESENT: THE HON'BLE JUSTICE HARISH TANDON AND THE HON'BLE JUSTICE SHIVAKANT PRASAD CRA/1/2019 BAIRUS KERKETTA ... APPELLANT

VERSUS

THE STATE ... RESPONDENT For the appellant :

Mr. D. Ilango, Advocate For the State :

Mr. Krishna Rao, Advocate Heard on :

September 09, 2021 Judgment on :

September 15, 2021 SHIVAKANT PRASAD, J.

1.

The instant appeal, being the jail appeal, is directed against the judgment and order of conviction and sentence dated 09.11.2017 and 10.11.2017 respectively whereby and whereunder the appellant was held guilty of the offences punishable under sections 449/302 of Indian Penal Code and was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- in default to rigorous imprisonment for one year more for the offence under section 302 of Indian Penal Code. The appellant was also sentenced to suffer R.I for 10 years and to pay fine of Rs.3000/- in default to R.I for six months in respect of charge under section 449 of Indian Penal Code with direction that both the sentences shall run concurrently. Pretrial detention of four years, ten months and twenty six days from 16.12.2012 to 10.11.2017 was directed to be set off from the substantive period of sentence under section 428 of Code of Criminal Procedure.

2.

The grounds taken, inter-alia, is that the case suffers from infirmities, inconsistencies, laxity and lacuna in the evidence as the prosecution case is totally based upon oral testimonies of the witnesses which are full of anomalies, inconsistency and absurdity. Hence, the appellant has assailed the judgment of conviction and sentence as not tenable in law.

3.

The background facts leading to the instant appeal are that based on the telephonic information from Smt. Rosaliya Kullu, Pradhan of Gram Panchayat, Govind Nagar to the effect that Smt. Sadni Bai wife of

Garath Singh of Rajiv Nagar informed that one Birus Kerketta having committed house trespass, assaulted her husband Gairath Singh at the neck with the help of Dao causing fatal injuries as a result, he succumbed to injury in Primary Health Centre, Campbell Bay during treatment on the same day at 2015 hours.

4.

Based on the complaint, Campbell Bay P.S. case No. 69/12 dated 15.12.2012 under Section 449/302 IPC was registered for investigation and on completion of investigation, the investigating officer submitted chargesheet being No.05(A)/13 dated 02.10.2013 under sections 449/302 Indian Penal Code against the appellant. After the case was committed to the Court of Session under the provision of section 209 Cr.P.C on compliance of section 207 of Cr.P.C by the learned Judicial Magistrate First Class, Campbell Bay, the learned Sessions Judge, having taken cognizance under section 193 of Cr.P.C framed charges under section 449/302 of Indian Penal Code to which the appellant abjured his guilt.

5.

The prosecution examined as many as twenty four witnesses and also adduced documentary evidence to substantiate the charges framed against the appellant. After the prosecution closed its evidence, the appellant was examined under section 313 of Cr.P.C who pleaded his innocence and declined to adduce any defence witness. 6.

Defence is one of denial of charges leveled against the appellant which emerges from the trend of cross-examination of the prosecution witnesses and from his statement recorded under section 313 Cr.P.C. 7.

Now the point for consideration is as to whether the prosecution has been able to substantiate the charges leveled against the appellant beyond reasonable shadow of doubt and whether the judgment impugned is tenable in law and in fact.

8.

To bring home the charge under section 449 of Indian Penal Code, the prosecution is required to prove that the accused has committed house trespass as envisaged under section 442 of the Indian Penal Code; secondly, the purpose of the said house trespass is to commit an offence which can be visited by the capital punishment i.e. to say punishable with death. The learned Judge held the appellant guilty of the charge under Section 449 Indian Penal Code on appreciation of the direct evidence placed on record during trial and considering the circumstance that the accused entered the house of the deceased on the fateful evening at about 5.30 P.M. to commit murder of the deceased.

Recovery of the bloodstained clothes of the deceased seized under the seizure list and recovery and seizure of fatal weapon used in the crime of murder under the seizure list pursuant to the statement of the accused support the prosecution case against the appellant. The motive of crime committed by the appellant was on the score of non payment of dues of amount Rs. 4880/- out of which according to the evidence of the widow of the deceased PW 1, a sum of Rs. 2500/- was payable and over the issue, there was quarrel between the deceased and the appellant. The prosecution case is well proved based on ocular testimony of PW 1 the widow of the deceased, who has stated on oath in clear crystal term that the appellant went for selling pork and after selling the same, he brought Rs. 2500/- and handed over the same to her and thereafter on 15.12.

2012 at about 5.30 P.M.

the appellant started abusing and held out threat on the deceased with dire consequences.

9.

PW 1 deposed on 14.12.2012 that her husband and the appellant slaughtered one pig for sale in the market. The appellant went for selling the pork and after selling the same, he brought Rs.2500/- which was handed over to her. He told her that he would distribute the balance money after some time. According to PW 1, she had purchased some ration articles out of the sum of Rs. 2500/- received by her and on the next day i.e. on 15.12.2012 at about 5.30 P.M., the appellant came to her house and demanded half the amount of Rs. 2500/- from her husband. Her deceased husband told the appellant that he had no knowledge about that money. After that the appellant started abusing her husband holding out threat on him with dire consequences.

Her husband asked her about the money and told the appellant that as her husband would consume liquor from that money, she had purchased ration articles. PW 1 further deposed that about 6 P.M., the appellant came suddenly to her house with one dao in his hand and cut the neck of her husband and fled away with that dao, as a result her husband had sustained bleeding injuries. Then she went to inform the Pradhan along with her two sons and disclosed the entire fact to Pradhan and requested to inform the matter to the Police Station. The Police was accordingly informed and her husband was taken to PHC, Campbell Bay by the Police vehicle for his treatment, but her husband succumbed to injuries during treatment. 10.

The prosecution proved the seizure list prepared by the Investigating Officer in the course of investigation from the spot at Rajiv Nagar in respect of the seizure of (i) 1No. blood stained mat colour in red and white; (ii) some pieces of blood-stained floor cemented from the spot;(iii) some pieces of control floor cemented from the spot and;(iv) blood sample collected in a cotton thread from the spot. 11.

Seizure list Exhibit-6 is in respect of seizure of one blood-stained blade of dao measuring about 11 1⁄2" inch in length and the handle length measuring 81⁄2" and blood stained half shirt (in white black lining) of the accused which were also seized by the Investigation Officer in the course of investigation and proved by the Investigating Officer PW-24, S Moses PW 8 and Anand Kumar, PW 9 witnesses to the seizure list. 12.

The seizure of 1 No. blood-stained nicker in grey colour and 1 No. blood-stained sacred thread were also seized under the seizure list exhibit-12. The Investigating Officer sent those seized articles for forensic examination by Central Forensic Science Laboratory and the FSL report exhibit-19 was collected by IO which reflects that Mat. exhibit-1 mattress, Mat. exhibit-2 dao, Mat. exhibit-3 nicker, Mat. exhibit-4 shirt, Mat. exhibit-5 cemented floor pieces, Mat. exhibit-6 control cemented floor pieces and Mat. exhibit-7 sacred thread were found to be stained with human blood of blood group A and duly confirmed on exhibit-1, 2, 3 and 7, although, blood group in respect of exhibit-4 and 5 could not be established.

13.

The exhibit-5 and 6 were sent to physical division of CFSL, Kolkata for examination and the report of the Senior Scientific Officer (Physics) of CFSL, Kolkata reflects that stained cemented floor pieces exhibit-5 was found to be similar to controlled cemented floor pieces exhibit-6 and the source corresponds to Exhibits of 6 and 5. Thus, the FSL reports corroborate the prosecution case of material articles being stained with blood seized from the place of occurrence.

14.

Dr. Antony, Autopsy Surgeon PW 19 proved the Post Mortem Examination report exhibit-18 and opinioned that the death was due to Cardio respiratory on account of hemorrhagic shock following multiple cut injury on the neck of the deceased. Thus, the photographs reflects that the deceased died a homicidal death and antemortem in nature. 15.

During autopsy, PW 19 found incised wound on the right side of neck and incised injury just at the ankle of the mouth in front of the earlobe of right ear on examination and same type of injury on temporal multiple joint and incised wound just below right ear was also noticed by him which extended towards the back of the neck up to the area just behind the angle of the mandible of the left side. Blood vessel of the right side was in cut condition and incised wound 6 cm in length was noticed at the front of shoulder of right side. Cut injury on the right upper arm and on the vocal cavity at the right and left side were also seen during post mortem examination of the deceased.

16.

Thus, the post mortem report Exhibit-19 reflects fatal injury on the deceased inflicted due to fatal blow of sharp edged weapon like dao on the neck and other parts of the deceased with an intention to cause death of the deceased and the intention of the appellant to kill the deceased was writ large to substantiate charge under Section 302 of Indian Penal Code.

17.

Learned advocate for the appellant submits that there are infirmities and discrepancies in the evidence of the prosecution witnesses and the conviction order finding appellant guilty is not tenable as the finding of guilt is solely based on the testimony of closely related witnesses It is pointed out that PW 1, PW 2, PW 3 and PW 4 are widow, three sons of the deceased. Secondly, that identity of the assailant is doubtful and the appellant has been falsely implicated due to enmity with the deceased. Thirdly, that the place of occurrence is also in doubt as the Investigating Officer apprehended the appellant from the jungle of Rajiv Nagar whereas the seizure list reflects that the seizure of the incriminating articles was from the house of the deceased at Rajiv Nagar. 18.

As regards the related witnesses, we are of the view that the conviction based on the closely related witnesses who are natural witnesses cannot be considered to be biased witnesses unless there is serious inimical relationship with the deceased or the prosecution witnesses and there is tendency of the prosecution witnesses to see to it that the accused is convicted. It is settled position of law that there is no bar on accepting the evidence of related witnesses. Merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out and discarded if their evidence is found consistent and true to the fact and they being relatives cannot by itself discredit their evidence. The ocular testimony of eye witnesses, therefore, does not suffer from any infirmity in the given facts of the case.

The PW 1 widow, PW 3 and PW 4 both sons of the deceased have stated about the crime of murder of the deceased committed by the appellant after criminally trespassing into their house on the fateful evening armed with the sharp cut weapon viz, dao by inflicting fatal blows on the neck of the deceased. 19.

As regards place of occurrence, it is evident from the testimony of the witnesses that the appellant was apprehended by the Investigating

Officer from the bushes behind his house situated in Rajiv Nagar and the seizure list exhibit 7 in respect of the seizure of the offending weapon smeared with blood and his wearing apparel half shift colour in white black lining smeared with blood were also seized on 15.12.2012 at 23.40 hours from the appellant Birus Kerketta pursuant to his statement. The seizure list exhibit-7 clearly reflects that the blood stained dao with blade length about 111⁄2 inch and handle length 81⁄2 inch and blood stained accused half shirt colour in white black lining were seized from the accused/ appellant near the garden of the Rajiv Nagar. 20.

It is true that the oral testimony of PW 2, the son of the deceased though has identified the appellant on dock was not an eye witness to the occurrence but he is a post occurrence witness as stated on oath that he did not see, how his father died but he has the knowledge that the appellant had visiting terms in his house and he learnt in the Police Station that there was fighting between his father and the appellant on the money dispute. But the evidence of widow PW 1, PW 3 and PW 4 two sons are in general agreement in so far as the fatal blow given to the deceased by the appellant with the help of dao and identity of the appellant is also not in doubt.

21.

It is settled principle of law that the evidence of even an interested witness does not suffer any infirmity, but the Court has to adhere to the rule of prudence and not as a law and the evidence of the interested witnesses are required to be scrutinized with a little care. But once the approach is made and the Court is satisfied that the evidence of the interested witnesses have a ring of truth, such evidence should be relied upon even without corroboration. On careful scrutiny of the evidence of PW 1, PW 2, PW 3 and PW 4, this Court is of the view that the prosecution has been able to substantiate its case in respect of the charges under Section 449/302 IPC against the appellant. 22.

There may be minor discrepancy in the testimony of PW 3 who stated that on 14.12.2012 at about 6.00 P.M, the accused had cut his father by dao by inflicting serious injury on his neck as a result the deceased succumbed to injury during treatment in PHC but such variation in his statement as to the date of occurrence is not fatal to the prosecution case, but the credibility of ocular testimony cannot be impeached as such discrepancy in evidence of PW 3 does not go to the root of the prosecution case. It would not be proper to lay too much stress on such discrepancy in evidence without any attempt to appraise their real value and effect.

It is common knowledge and experience that the discrepancies do occur even in the statement of perfectly honest witness which is really due to difference in individual faculties with regard to observation, recollection and recital of details and unless there is any good ground to think that they are due to a deliberate attempt to suppress or depart from the truth. It would be unfair to discard the direct testimony of the witnesses merely on account of such discrepancies when they are in general agreement as to the material substance. It is an error to take the easy course of holding the evidence discrepant and the whole case untrue.

We find on appraisal of the evidence that the evidence of the prosecution witnesses is not in conflict with each other and the statement made by PW 3 is in respect of minor details as regards the date of occurrence but that should not be regarded as very material or as positive proof of the mendacity of the witness and the whole case cannot be thrown out on that account.

23.

This Court finds that the PW 1 and PW 3 were placed before the learned Judicial Magistrate for recording their statements under Section 164 CrPC, which finds corroboration by the maker of the statement. A statement recorded under Section 164 CrPC though cannot be equated with a deposition given in Court and while it may be legitimately used for cross examining a witness with a view to reciting contradictions or vital omissions but it cannot be compared and contrasted with the testimony in Court with a view to detecting omissions in matters of minor details. Such omissions cannot be elevated to the rank of contradictions which would have the effect of discrediting the witness. It is a matter of common experience that the statements of witnesses recorded by Magistrate under Section, 164 CrPC on requisition by the Investigating Officer are as a rule more concise than even the statements recorded by the Police in the course of investigation under Section 161 of CrPC. 24.

Thus, on conjoint reading of their statements specially the testimony of PW 1 this Court is of the view that the FIR finds corroboration by its maker.

25.

We are not oblivious of the fact on the evidence that PW 2, PW 3 and PW 4 sons of PW 1 the widow of the deceased are minor in age and their evidence were taken by the learned Trial Court after conducting an inquiry as to whether they should be sworn as required under Section 118 of Evidence Act. The Supreme Court has held that it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth, and state why they think so. Otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence altogether (see: Rameshwer vs State AIR 1952 SC 54). 26.

On perusal of their evidence this Court finds that they were examined while holding inquiry to testify their competence to depose and the learned Trial Court was of the opinion that they were competent to depose. That apart, the prosecution case of crime of murder committed by the appellant is well proved even placing reliance on the ocular testimony of PW 1 the widow of the deceased because as per provision of Section 134 of Evidence Act no particular number of witnesses is required in any case for proof of any fact. It is settled law that court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Thus, the evidence is not counted rather weighed.

27.

PW 5 and PW 6 co-villagers have no personal knowledge but came to know from the Police that the appellant had cut the deceased with the help of a dao. PW 7 is father-in-law of the deceased who learnt from the Police about the crime of murder of the deceased, committed by the appellant.

28.

PW 9 is a cousin brother-in-law of the deceased who alongwith PW 8 were taken by the Police to the house of the deceased and incriminating articles were seized in their presence. PW 10 was Pradhan of Panchayat who had informed to the Police about the incident after she had received information from the defacto complaint the widow of the

deceased. PW 11 deposed that she had heard that the appellant had cut one of his neighbour.

29.

It is pointed out that the seizure list in respect of seizure of incriminating articles was not witnessed by the PW 8 as he was declared hostile. True, PW 8 was declared hostile on his deposition during examination-in-chief when he stated that he did not know anything about the case. But during cross-examination by the prosecution he has detailed the facts admitting that he came to know that the appellant had committed murder of the deceased by entering into his house and he was taken by the Police to the house of the deceased alongwith PW 9 who are both witnesses to the seizure list and have testified their signature as exhibit 6/1 and 6/2 respectively and have also identified the Mat. exhibit I, Mat. exhibit II the offending weapon, Mat. Exhibit III the wearing apparels of the appellant, Mat.

Exhibit IV and PW 8 testified the fact that he alongwith the Anand Kumar PW 9 went to the PHC to see the deceased and the Police also came to the Medical unit and took him and PW 9 to the house of the deceased where on entering into the house of the deceased, they saw stains of blood on the bamboo chatai and Police took photographs of the bamboo chatai in their presence. The bloodstain chatai, cotton thread was seized in their presence and proved as Mat. Exhibit I and II respectively. The inquest over the dead body was also conducted in their presence by the IO and the injury mentioned in the inquiry report exhibit 7 corresponds to the injuries noted in the Post Mortem Report exhibit 19.

30.

Although PW 8 during his examination-in-chief was declared hostile but he corroborated the prosecution case while being crossexamined by the prosecution. 31.

Hostile witness is a witness for a party speaking the truth against the party calling him is not necessarily hostile. It would not be correct to say that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part but must be excluded from consideration altogether. The correct rule is that the evidence so far as it affects both parties favourably or unfavourably must be considered for what is worth. So the true rule is that Court can come to its own conclusion after consideration of the totality of the evidence and the Court on a consideration of all factors relevant to the question has to form its own opinion that the witness really bears a hostile animus to the party calling.

In the present case since the testimony of the PW 8 has not been shaken on material points when cross-examined, cannot be brushed aside and the evidence so deposed by PW 8 does not appear to be destructive of the prosecution case rather PW 8 and PW 9 being the seizure list witnesses having identified their signature as a token of their presence and seizure of incriminating articles being made by the Investigating Officer at the scene of crime including the seizure of the offending weapon in their evidence cannot be discarded. 32.

PW 12, PW 13, PW 14, PW 15, PW 17, PW 20, PW 23 and PW 24 are Police witnesses who have participated in the process of investigation and proved the FIR exhibit 14, Farad Bayan exhibit 1, and seizure list exhibit 6, exhibit 7 and 12, inquest report exhibit 9, extract of GDE exhibit 15, injury report in respect of accused exbibit 17. PW 20, PW 23 and PW 24 conducted the investigation and during investigation PW 1 and her two children were placed before Judicial Magistrate for recording their statements under Section 164 Cr.PC. They had also taken photographs of the crime scene of the deceased which were developed by

printed photographs through PW 18 who was engaged as photo developer from the digital camera produced by the Investigating Officer and have been marked as Mat. exhibit VIII during trial. 33.

On critical analysis of the evidence on record, this Court conclusively find that the learned Trial Court has correctly approached with its findings of fact and on law holding the accused guilty of the offences charged under Sections 449/302 Indian Penal Code as it emerged from the evidence that intention of the appellant to kill the deceased was writ large and there is no case of the defense that a false case has been foisted on the appellant.

34.

As regards sentence, the learned advocate for the appellant pointed out that due to quarrel between the deceased and the appellant on the issue of money matter and on the sudden provocation, the crime was committed. It is further submitted that the appellant is incarcerated in jail for near about eleven years and sentence can be modified to the extent of the period of detention under gone by the appellant. 35.

In this regard our attention is drawn to the suggestion put to PW 1 the widow of the deceased that her husband was doubting the relationship between her and the accused which culminated in strained and souring relationship between the appellant and the deceased. Such submission in our opinion was given with an object in mind to infer that the crime perpetrated at the hands of the appellant was not with an intention to kill the deceased but we do not find iota of evidence of the crime committed on sudden provocation. Hence, we are not in agreement with such submission of learned advocate for the appellant, having regard to the finding discussed in the body of the judgement. 36.

On the question of sentence the law vests a discretion in the trying Judge to pass adequate sentence and it is for him to decide after taking into consideration all the pertinent circumstances of the case as to what should be adequate sentence. The sentence should be dispassionate and not on sentiment.

37.

In keeping with the current penological thought after amendment the Code of Criminal Procedure of 1973 makes imprisonment for life a rule and death sentence an exception, in the matter of awarding punishment for murder. So, in the matter of sentence the Trial Court is burdened with the responsibility to justify by giving special reason if he proposes to award death sentence to a person found guilty of the murder. As regards lenient sentence, a long spell of torment i.e. incarceration in jail may be one circumstance in giving lesser sentence if there are mitigating circumstance attending the fact. 38.

It is settled position that a proper sentence is the amalgam product of many factors, such as the nature of the offence, the circumstances, extenuating or aggravating, of the offence, the proper criminal record, if any of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects of rehabilitation, but none of these mitigating circumstances are available to the appellant once the appellant is found guilty of the offence charged under Section 302 of the

Indian Penal Code. This Court has found that the learned Trial Court has properly exercised his discretion awarding sentence for life imprisonment which is a rule as per the amended provision of the Code of Criminal Procedure.

39.

We have found that there was no provocation for the appellant to commit extreme crime of murder of his own colleague and as such the sentence cannot be modified to the extent of period of sentence undergone by the appellant.

40.

Bestowing upon anxious and careful thoughts on all aspects of the matter, we reach at a conclusion applying all standard of strict proof beyond reasonable doubt that the learned Judge has rightly convicted and sentenced the appellant by the impugned judgement. Ergo, we do not find any ground to assail the impugned judgement and thus, the judgement of conviction and sentence impugned in this appeal is hereby affirmed.

41.

Accordingly, the criminal appeal being No. CRA/1/2019 is hereby dismissed.

42.

Let the LCR together with a copy of this judgement be sent to the learned Trial Court for necessary note in the Sessions Register. A copy of this judgement be also communicated to the Superintendent, Correctional Home for his information and doing the needful. (SHIVAKANT PRASAD, J.) I agree.

(HARISH TANDON, J.)