Peter v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA AND THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA CRA/11/2021 PETER ... APPELLANT VS.

THE STATE ...RESPONDENT For the appellant : Mr. Deep Chaim Kabir Mr. S.Ajith Prasad For the respondents : Mr. Sumit Karmakar Hearing on : July 22 and July 25, 2022 Judgment on : July 29, 2022 SABYASACHI BHATTACHARYYA, J.

1.

The present appeal has been preferred against a judgment and order of conviction and sentence for offence punishable under Section 302 of the Indian Penal Code.

2.

Learned counsel appearing for the appellant submits that there were several inconsistencies in the prosecution evidence. It is argued that the PW-1, Phanuel, in his cross-examination, stated that he 'saw'

cut injury of 'dao' on the appellant Peter, thus indicating that the cut injury was already there when Phanuel reached the place of occurrence. However, in his statement under Section 164 of the Code of Criminal Procedure, Phanuel stated that the injury was inflicted on Peter while taking the dao from his hands, which is contradictory with the previous statement. Again, both PW-1 and PW-3 claim to be the first to reach the place of occurrence, which cannot be true at the same time.

3.

Herald, the PW-2 (father of the PW-1) alleged in his examination in chief that he saw Peter cutting the throat of Annie with dao. Again, PW-1, in his chief, states that, on peeping first, he saw cutting of the throat. The incident of cutting the throat, as alleged by both, could not have taken so long, since, admittedly, PW-1 had reached the spot prior to PW-2, the latter having lifted PW-1 to the bed room first who, then, opened the lock of the room from inside. 4.

A case has been sought to be made out that Peter might have had an extra-marital relationship with a third person, in all probability John, who had pre-deceased Annie. However, no evidence was produced in support of such allegation.

5.

Again, certain instances, such as the PW-2 having admitted in cross that he had not stated to police that he snatched the dao from Peter and threw it away, renders Peter's injury and the cause thereof

controversial. There is conflict between the evidences of PW-1 and PW2 in that regard as well. 6.

Again Helifect, the grandfather of Phanuel, who was admittedly at the spot at the relevant juncture, was withheld from evidence for which, it is argued, adverse inference should be drawn against the prosecution.

7.

Learned counsel for the appellant further contends that PW-4, namely Magdela, the sister of PW-3 Charity, did not tender detailed evidence at all. Adverse inference ought to be drawn on such score as well, it is submitted. Insofar as photographs produced in the Court below are concerned, those are not admissible as evidence, since they did not feature in the seizure list nor were exhibited at the time of trial.

8.

That apart, it is argued that there is patent discrepancy as to the chronology and timing of events, in terms of the evidence of the different prosecution witnesses.

9.

Alternatively, learned counsel argues, it could have been held by the Trial Judge that the alleged offence against the appellant-Peter was one punishable under Section 304 and fell within the exception of Section 300 of the Indian Penal Code. If so, the appellant has already been in custody for seven years, after having been arrested in the year 2015 and having not been granted bail at any point of time, and a

substantial part of the sentence awardable for such offence has already been undergone by the appellant.

10.

By placing reliance on Section 301 of the Indian Penal Code, learned counsel for the appellant argues that the case was one of transferred malice at the worst and could not tantamount to murder as envisaged in Section 300.

11.

It is further submitted on behalf of the appellant that an interpreter had been directed to be appointed at every stage for taking the evidence and statements of the prosecution witnesses. Moreover, all the said prosecution witnesses are Nicobari Tribals. It is sought to be highlighted from the order dated April 27, 2017 that translation was required in the case inasmuch as the version of the PW-3 is concerned. However, it has been consistently stated in the evidence of the PWs that the victim was shouting 'Bachao Bachao', which is in Hindi, of which language the PWs had no acquaintance. Hence, the possibility of the entire chain of events being manufactured at the instance of the police cannot be ruled out.

12.

Lastly, learned counsel submits that since the Carotid Sheath of the victim was cut, there could not be any shouting on the part of the victim at the relevant juncture, as alleged.

13.

Thus, it is submitted that the appellant ought to have been acquitted, since the allegations against him had not been proved by a fool-proof chain of events.

14.

Learned counsel representing the appellant cites (1976) 4 SCC 394 (Lakshmi Singh & Ors. v. State of Bihar), where it was held that where the prosecution fails to explain the injuries on the accused, two results follow:

(1) that the evidence of the prosecution witnesses is untrue; and

(2) that the injuries probabilise the plea taken by the appellants. However, in the case at hand, PW1 and PW2 corroborated each other's versions in respect of Peter's injury being occasioned during the snatching away of the weapon from his hands fairly accurately in their testimony. Thus, the principle laid down in the cited case is not applicable here.

15.

Learned counsel for the Appellants next relies on (2021) 5 SCC 626 (Shivaji Chintappa Patil v. State of Maharashtra) for the proposition that Section 106 of the Evidence Act, even when applicable, does not absolve the prosecution from proving their case. In the instant case, however, the prosecution has proved its case beyond reasonable doubt. Hence, the onus of proof shifted on the accused, who was the only person in the bedroom where the incident occurred apart from the victim herself, as per corroborative evidence of the prosecution witnesses, in particular PWs 1 and 2. Thus, the ratio laid down in the aforementioned judgment is also not attracted here.

16.

The next judgment relied on by the Appellant is Nagendra Sah v. The State of Bihar, reported at (2021) 10 SCC 725, where it was held that in a case governed by circumstantial evidence, if chain of circumstances are not established by prosecution, the failure of the accused to discharge burden under Section 106 of the Evidence Act is not relevant. In the present case, however, the chain of circumstances has been sufficiently proved by direct evidence of eye-witnesses and not merely by circumstantial evidence. Hence, the said ratio is not applicable as well.

17.

Learned counsel for the respondents submits that the decisions cited by the appellant are not applicable to the present case at all. Section 106 of the Evidence Act, it is argued, does not come into the picture at all, since direct evidence, and not merely circumstantial, evidence has been adduced in the present case to clinch the case of murder against the accused. Hence, there cannot be any scope of invoking the principle of 'special knowledge' as envisaged in Section 106 of the Evidence Act. It is submitted that as many as three eye witnesses have corroborated the case made out against the accused. The alleged discrepancies, if any, were only minor in nature and not major, which could have vitiated the veracity of prosecution evidence. 18.

PW-1 and PW-2 have entirely corroborated their evidences and there is a substantial corroboration with regard to the time and place of occurrence as well. Since the police might have visited the place of occurrence several times for the purpose of investigation, the mere

stray comment in the evidence as regards the police visiting the place at any other time than indicated in the FIR is not germane to shake the prosecution case.

19.

Learned counsel for the State next argues that the accused did not adduce any evidence, even when examined as a witness and given an opportunity to do so, to make out a case of any alternative possibility.

20.

Unless any alternative sequence of developments is established by the accused or put to the PWs in cross-examination, there is no onus on the prosecution to disprove any such alternative theory, as sought to be projected possibly by counsel at the time of trial. 21.

Particularly in the statement given by the accused under Section 313 of the Code of Criminal Procedure, although specifically given the opportunity to state any other relevant fact, the accused kept silent in respect of advancing any alternative theory whatsoever apart from the chain of events as established by the prosecution. 22.

As regards the alleged infirmity and inconsistency of the grandfather of PW-1 having heard the knock on his outside door while he could not hear the shouting allegedly coming from inside the bedroom, it is argued that in view of age of the said witness, it cannot be said that such a turn of events was impossible or not plausible. Without knowing the exact circumstances and situation of the grandfather Helifect, it cannot be assumed on the basis of mere

conjecture that the chain of events made out by the prosecution is to be disbelieved merely on such ground.

23.

Inasmuch as the injury on Peter being self-inflicted, the medical report is sufficient, it is argued, to substantiate the said allegation. No further explanation need be given by the prosecution on such score, it is submitted.

24.

The appellant had alleged that gross inconsistencies have vitiated the judgment and conviction. Let us examine such allegations in detail. PW-1 Phanuel in his cross examination stated that he "saw" the cut injury of dao on Peter, which apparently implies that the injury was already there when Phanuel entered. However, in his statement under section 164 of the Criminal Procedure Code Phanuel stated that the injury was inflicted while taking the dao from the hands of Peter.

25.

Again, PW-1 and PW-3 both claim respectively to be first at the place of occurrence at the time of the incident. 26.

Again PW-2 Herald, father of Phanuel, in his examination in chief, said that he saw Peter cutting the throat of Annie whereas Phanuel in his chief, as PW-1, stated that on peeping he saw Peter cutting the throat of Annie. However, in his cross examination, Phanuel claimed to have entered the bed room first and after him his father Herald (PW-2). A question has been raised as to how the

incident of 'cutting' continued for so long, since Annie had a single fatal injury only.

27.

However, such discrepancies are minor in nature and are but natural if a witness tells the truth. Moreover, we have to keep in mind that the date of occurrence of the unfortunate incident was March 1, 2015 whereas the evidence of witnesses commenced in the trial on February 23, 2017, that is, about two years thereafter. The said gap of two years was sufficient for a normal human being of reasonable prudence to be somewhat inconsistent in his narration of the facts of that relevant juncture.

28.

Only a margin of error plausible for a common man could be found in the minor discrepancies in question. As such, those do not vitiate the entire judgment of conviction. Out of PW-1 and PW-2, who went in first may reasonably vary in their respective narrations after two years of the incident.

29.

Even if one of them was wrong, it was well within the limits of possibility for both to have seen Peter cutting the throat of Annie. It has been stated in evidence that Herald (PW-2) first lifted up Phanuel (PW-1) into the closed bedroom, which was the place of occurrence and thereafter, upon Phanuel opening the lock from inside, Herald entered. As such, it is well within the realm of possibility that both saw the scuffle between Peter and Annie when Peter was going to cut the throat of Annie.

30.

Inasmuch as the alleged discrepancies in timing are concerned, it has been borne out substantially by the evidence of the eyewitnesses that the incident took place around 6.00 AM and the FIR was registered at around 6.45 AM. There may well be variance between the statements of the witnesses in respect of the exact time when the police first arrived. Moreover, the police might have visited the spot several times the same day for the purpose of initial investigation. Such probability cannot be discounted and, as such, it cannot be found that due to such discrepancies in narration of exact timing, the entire evidence is vitiated.

31.

The main sequence of events leading to the offence has been credibly established by three eye-witnesses, being PW-1, PW-2 and PW-3. It has been established beyond reasonable doubt that around 6.00 AM Peter cut the throat of Annie and while snatching the weapon from the hands of Peter, an injury was inflicted on Peter's person. The argument of the appellant, to the effect that the medical report of Peter's injury itself indicates that there was some alterative chain of events, is not acceptable, because the court then has to resort to conjecture and surmise in respect of the cause of injury on Peter's body.

32.

In any event, the minor incision that was inflicted on the person of Peter did not immobilize Peter as per the evidence of the witnesses. Obviously, Peter was taken to the hospital and examined there by a doctor, which resulted in the medical report being issued.

33.

The subtle distinction between the doctor writing the history upon hearing it from someone else and/or himself would not be much relevant, since, in any event, the doctor's statement/finding narrating the history of the event, despite not being on the spot at the relevant point of time, would be in any event hearsay at best. 34.

Even if we discard the evidence of the other witnesses, PW-1, PW-2 and PW-3, among themselves, have corroborated the key events. Inasmuch as the possibility of any alternative chain of events is concerned, such argument of the appellant cannot be accepted as well, simply because the accused did not refer to any alternative sequence of events at all, in spite of being given ample opportunity to do so in his evidence or statement under Section 313 of Code of Criminal Procedure. A new case cannot be made out from the bar at the hearing of the appeal for the first time, since not even any vague indication to an alternative possibility of sequence of events finds place in any of the materials on record, including the evidence of the accused himself.

35.

Thus, the prosecution established the primary contours of the event with sufficient precision to indict the accused. 36.

The abstinence of the grandfather and second daughter of Peter and Annie in evidence is not of any material bearing, since they were not the only 'best witnesses' in the case in exclusion of PWs-1 to 3, the

latter being eye-witnesses, for the absence of whom adverse inference need be drawn against the prosecution.

37.

Moreover, the Trial Judge painstakingly considered the entire evidence on record and found the chain of events to be credible. The doubt, if any, in respect of the exact of turn of events was, at the worst, within reasonable limits. Hence, it can very well be said that the offence in question was proved "beyond reasonable doubt". 38.

However, the mens rea or motive behind the killing, sufficient to elevate the same to the plane of murder, as contemplated in Section 300 of the Indian Penal Code, 1860, has not been established at all. 39.

Although a vague assertion of Peter being suspicious of Annie on the allegation of extra martial relationship has been sought to be made out by some of the witnesses, in the absence of any specific material to substantiate the same and/or any specific statement by any of the witnesses as to the same being definitely the cause of Peter killing Annie, it cannot be said that the intention to commit murder as contemplated in Section 300 of the Indian Penal Code was made out. 40.

Since the element of premeditation has not been established, the offence of murder could not be attributed to Peter in the present case.

41.

Exception 4 to Section 300 of the Penal Code provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden

quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The explanation thereto mentions that it is immaterial in such cases which party offers the provocation or commits the first assault. The possibility of Exception 4 being attracted to the present case cannot be ruled out in the circumstances.

42.

As per Section 300 itself, culpable homicide is murder if the act in which the death is caused is done with the intention of causing death or with intention as stipulated in the rest of the said section, except in the cases thereinafter provided as exceptions. Thus, the scope of Exception 4 being attracted cannot be ruled out, which mitigates the offence to that of culpable homicide not amounting to murder.

43.

In any event, in the absence of any ingredient of motive or premeditation being attributable to Peter on the basis of the evidence on record, it cannot be said that Peter was guilty of murder, sufficient to invoke the rigours of Section 302 of the Indian Penal Code, which fixes punishment for murder as death or imprisonment for life as well as fine.

44.

Section 304 of the Penal Code provides that whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the

act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. If the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death, imprisonment of either description for a term which may extend to ten years, or with fine, or with both may be imposed on the accused.

45.

However, in the instant case, the accused-appellant is found, in view of the above observations, to be guilty of a lesser crime than awarded to him, that is, of culpable homicide not amounting to murder.

46.

The sentence, accordingly, has also to be reduced. Since the appellant has already been behind the bars for about seven years, a substantial part of the punishment which can be imposed for culpable homicide not amounting to murder has already been spent by the accused in incarceration.

47.

Hence, the appellant's sentence is reduced to the period already undergone by the appellant in incarceration.

48.

CRA/11/2021 is, thus, disposed of by modifying the impugned judgment and order to the effect that the accused is guilty, not of murder under Section 302 of the Indian Penal Code but of culpable homicide not amounting to murder, punishable under section 304 of the Indian Penal Code, 1860.

49.

The sentence of the appellant is accordingly reduced to the period already spent by the appellant in custody. The appellant may, thus, be released immediately from custody by treating the period already spent by him in custody to be the total period of sentence awarded to him.

50.

The appellant is also discharged of any condition of bail, if imposed at any point of time on the appellant and subsisting till date. 51.

Lower Court Records be sent down.

52.

Learned Registrar of the Circuit Bench, Port Blair is directed to communicate this order immediately to the authority of the Correctional Home to ensure expeditious implementation. 53.

Urgent photostat certified copies of this order be supplied to the respective parties upon compliance of usual formalities. (SABYASACHI BHATTACHARYYA, J.) 54.

I agree.

(HIRANMAY BHATTACHARYYA, J.)