Suklal Hembrom @ Patar vs The State Of West Bengal
2023 Latest Caselaw 2303 Cal

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Debangsu Basak
           And
The Hon'ble Justice Md. Shabbar Rashidi


                            CRA 294 of 2021
                                 With
                            CRAN 1 of 2021

                        Suklal Hembrom @ Patar
                                   VS.
                        The State of West Bengal


For the Appellant : Mr. Jayanta Banerjee,
                    Mr. Ruxmini Basu Roy, Advocates


For the State    : Mr. Rudradipta Nandy, ld. APP
                   Ms. Sonali Das, Advocates

Hearing concluded on : February 13, 2023 & April 5, 2023

Judgement on     : April 5, 2023


DEBANGSU BASAK, J.:-

1.

The appeal is directed against a judgment of conviction

dated August 12, 2021 and an order of sentence dated August

13, 2021 passed by the learned Additional District and Sessions

Judge, Fast Track 2nd Court, Paschim Medinipur in Sessions

Trial no. 01-(01)/08.

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2. By the impugned judgment of conviction, the learned

Judge found the appellant guilty under Section 302 of the

Indian Penal Code, 1860. By the impugned order of sentence,

the learned Judge sentenced the appellant to undergo rigorous

imprisonment for life and to pay a fine of Rs. 10,000/- and in

default to suffer rigorous imprisonment for six months.

3. The case of the prosecution at the trial was that, the

appellant along with Hapan Murmu @ Mandi on September 5,

2006 at the house of the victim, in furtherance of common

intention committed murder of the victim intentionally or

unnaturally causing death to the victim and thereby committed

an offence punishable under Section 302 read with Section 34

of the Indian Penal Code, 1860.

4. Police received a written complaint dated September 5,

2006, being Exhibit-1, from prosecution witness (P.W. 1). On

the basis of which, police started Kotwali police station F.I.R.

no. 190/06 dated September 5, 2006 under Section 302 of the

Indian Penal Code, 1860.

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5. On conclusion of the investigations, police submitted a

charge sheet against two persons being the appellant and one

Hapan Murmu @ Mandi. The Court framed charges under

Sections 302/34 of the Indian Penal Code, 1860 against the

appellant and Hapan Murmu @ Mandi on March 28, 2008. The

accused persons including the appellant claimed to be not

guilty and consequently they were put on trial.

6. During trial, Hapan Murmu @ Mandi expired and the case

was filed forever in respect of the deceased accused by an order

dated May 17, 2018.

7. At the trial, prosecution examined 10 witnesses to bring

home the charges. The prosecution also relied upon various

documents and material exhibits.

8. Learned advocate appearing for the appellant submits

that, the prosecution could not prove the charges as against the

appellant beyond reasonable doubt. The charges framed were

against the appellant and one deceased co-accused, inter alia,

under Section 34 of the Indian Penal Code, 1860. Prosecution

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failed to establish any common intention between the appellant

and such deceased co-accused.

9. Learned advocate appearing for the appellant submits that

prosecution did not produce any eye-witness to the incident.

Prosecution relied upon circumstantial evidence to bring home

the charges. According to him, prosecution failed to complete

the chain of circumstances so as to raise an irresistible

conclusion of guilt so far as the appellant is concerned.

10. Referring to the evidences on record, learned advocate

appearing for the appellant submits that, P.W. 4 is a person,

who saw the appellant in the vicinity of the place of occurrence.

In the facts of the present case, according to him, it cannot be

said that the appellant was last seen together with the victim.

According to him, no witness from the prosecution side came at

the trial to claim that the appellant was last seen together with

the victim. According to him, although the appellant was in the

vicinity of the place of occurrence, it cannot be said that the

appellant is guilty of murder. He relies upon 2023 SCC Online

SC 50 [Boby vs. State of Kerala]; (1984) 4 SCC 116 [Sharad

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Birdhichand Sarda vs. State of Maharashtra]; (2015) 4 SCC

393 [Ashok vs. State of Maharashtra]; (1979) 3 SCC 316

[State (Delhi Administration) vs. Sri Gulzari Lal Tandon];

(2014) 4 SCC 715 [Kanhaiya Lal vs. State of Rajasthan];

and. 2022 (5) SCC 438 [Satye Singh and Anr. Vs. State of

Uttarakhand].

11. Learned advocate appearing for the appellant submits that

in order to comply with the theory of last seen together, the

prosecution is required to establish that, the appellant was last

seen together with the victim prior to the discovery of the dead

body. In the facts and circumstances of the present case, P.W. 4

did not claim that she saw the appellant with the victim prior to

his death.

12. Learned advocate appearing for the appellant submits

that, no seizure list was marked as an exhibit at the trial. P.W.

5 claimed that a sharp cutting weapon was seized by the police.

Seizure list with regard to same was not produced at the trial on

behalf of the prosecution. Stone was seized by the police which

was claimed to be used in the murder of the victim. Such stone

CRA 294 of 2021

was not seized pursuant to a statement recorded by the

appellant and admissible in evidence under Section 27 of the

Evidence Act, 1872. In support of such contention, he relies

upon 2002 Calcutta Criminal Law Reporter (Cal) 694 [Fulan

Debi @ Pankhi @ Dulhan vs. The State of West Bengal].

13. Learned advocate appearing for the appellant submits

that, all incriminating materials as against the appellant were

not placed by the learned Judge when the appellant was being

examined under Section 313 of the Criminal Procedure Code.

The alleged incriminating materials with regard to seizure of the

stone were not placed by the appellant in his examination under

Section 313 of the Criminal Procedure Code. In such

circumstances, appellant suffered a prejudice. In support of

such contention, he relies upon 2023 (2) SCC 583

(Kalicharan & Ors. vs. State of Uttar Pradesh).

14. Learned advocate appearing for the appellant submits

that, Section 106 of the Evidence Act, 1862 is not attracted in

the facts and circumstances of the present case. The death

occurred in the bedroom of the deceased. The appellant is,

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therefore, not required to explain the death of the victim

happening in the bedroom of the victim. The appellant and the

victim are not related to each other.

15. Learned advocate appearing for the appellant submits that

the prosecution did not establish at the trial that, no other

person entered into the house of the victim prior to his death.

P.W. 4 did not claim that she was present all morning till the

discovery of the dead body of the victim in the house of the

victim. Therefore, according to him, the prosecution failed to

prove the complicity of the appellant in the alleged murder of

the victim.

16. Learned advocate appearing for the appellant submits

that, prosecution failed to establish any motive for the murder.

The claim for motive is based on hearsay.

17. Learned advocate appearing for the State submits that the

prosecution was unable to prove the charges beyond reasonable

doubt. He refers to the evidence of the prosecution witnesses.

He submits that P.W.4 saw the appellant entering into the

CRA 294 of 2021

house. The appellant sent P.W.4 away to buy an article. P.W.4

on returning to the house found the victim dead.

18. P.W.1 is the scribe of the written complaint. He stated that

he wrote the written complaint on the instructions of P.W.4. He

read over the contents of the written complaint to P.W.4. She

heard the contents of the written complaint and signed the

same. The written complaint was tendered in evidence and

marked as Exhibit-1. The signature of the P.W.1 was marked as

Exhibit.1/1. Signature of P.W.4 was marked as Exhibit-1/2.

19. P.W.1 stated that after the written complaint, police came

and saw the deadbody of the victim. Police seized certain

articles and prepared a seizure list. The seizure list was

tendered in evidence and marked as Exhibit-Y. He signed

thereon and marked as Exhibit-Y/1. He identified the accused

persons in Court.

20. P.W.2 is a witness to the seizure list being Exhibit-Y. He

identified his signature on such seizure list which was marked

as Exhibit-Y/2.

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21. P.W.3 is a police Constable. He stated that on May 5,

2006, he was posted at Kotwali Police Station as Constable. On

that day, one unnatural death case was started. He escorted the

deadbody of the victim to the morgue and identified the body to

the Post Mortem Doctor. The deadbody challan was tendered in

evidence and marked as Exhibit-2 and his signature was

marked as Exhibit-2/1. Wearing apparels of the deadbody of the

victim was seized by the police. Such seizure list was marked as

Exhibit-3. His signature on the seizure list was marked as

Exhibit-3/1.

22. P.W.4 was a minor at the time of deposition. Questions

were put to her by the learned Judge so as to identify as to

whether the P.W.4 possessed sufficient capability to understand

the questions and give rational answers. Learned Judge found

that the P.W.4 was capable of understanding the questions and

giving rational answers thereto. Subsequent to such finding

being returned her the learned Judge, P.W.4 was examined in

chief on behalf of the prosecution.

CRA 294 of 2021

23. During such examination, P.W.4 described the

composition of her family. She said that her biological father

died when she was young. The victim was her uncle. She used

to address the victim as her father. The victim was murdered.

She identified the appellant as the murderer. She said that she

was 10 years of age when the victim was murdered. On the date

of the incident at about 12 noon, the appellant came to her

house and asked her what food was under preparation. She

answered the appellant that she was preparing a curry mixed

with potato and snail. The victim was sleeping in the house and

none was there at that time in the house. Her brothers and

mother went out for work. Appellant asked her for some curry

which she offered but he refused to eat. Appellant asked her to

purchase Biri from a shop and for that purpose appellant gave

her a 10 rupee note. Accordingly, she went to purchase Biri.

When she returned after purchasing Biri, she found that the

appellant was coming out from their house. The appellant was

falling down on the ground and trying to get up again. The

appellant was cleaning his hands in the earthen pot which was

CRA 294 of 2021

full of snail and water. Then the appellant explained to her that

he fell down on the earth and was washing his hands. She

entered inside the room and she slipped on the blood. She lit a

lamp and searched for the victim and found the victim was lying

dead in a pool of blood on the floor of the room. She found

marks of injury on the forehead of the victim. She started

crying. Then the appellant entered into the room and asked

what was wrong with the victim. She rushed to her mother at

her place of work and disclosed everything to her. She

submitted written complaint at police station. She identified the

written complaint written by P.W.1. She stated that written

complaint was taken down as per her dictation.

24. P.W.4 stated that the victim was murdered by the

appellant with the help of a sil (piece of stone). She stated that

she recorded her statement under Section 164 of the Criminal

Procedure Code before the learned Magistrate. She tendered

such statement which was marked as Exhibit-4/1. She said

that police seized various articles. She identified the accused in

Court. She stated that Chakla, Mayra and the appellant came to

CRA 294 of 2021

their house in the morning on that day to consume liquor. She

stated that she did not see other accused on the date of the

incident in her house.

25. P.W.5, is the wife of the victim. She stated that, P.W.4

used to address the victim as her father. P.W.4 was two months

of age when her biological father expired. She said that she was

not in her house at the time of incident. She returned to her

house at about 12/1 noon. Entering the house she found that

the deadbody of the victim was lying. She came to learn from

P.W.4 that the appellant gave her a ten rupee note to purchase

Biri and matches. Returning home, P.W.4 found that the victim

was dead. P.W.4 told her that the appellant murdered the

victim. She was examined by the police. Police seized the piece

of grinding stone and sharp cutting weapon from her house.

She identified the grinding stone that was seized from her house

which was marked as Material Exhibit-I. She said that police

prepared a seizure list in her place and she put her left thumb

impression thereon. She said that police questioned the

appellant as to what happened, who told the police that he

CRA 294 of 2021

assaulted the victim with the seized grinding stone. Police

examined the dead body of the victim. She put her left thumb

impression on the inquest report.

26. P.W.6 is a co-villager who did not add any substance to

the case of the prosecution or the defence.

27. A seizure list witness deposed as P.W.7. He identified his

signature on the seizure list which was marked as Exhibit-5/1.

He said that he saw the blood stain on the grinding stone.

28. P.W.8 is another person who did not add any substance to

the case of either the prosecution or the defence. He was

declared hostile by the prosecution. On cross-examination by

the prosecution after he being declared hostile, he denied the

suggestions put to him.

29. P.W.9 is the doctor who conducted the Post Mortem

Examination of the deadbody of the victim. He tendered the Post

Mortem Report in evidence which was marked as Exhibit-6. He

stated that he found about 11 external injuries on the dead

body of the victim. He described that some of the injuries were

CRA 294 of 2021

caused by a hard and blunt object. He also described that one

of the injuries was inflicted by a sharp cutting weapon.

30. P.W.9 opined that the death took place 1½ to 2 days before

the Post Mortem. The injuries sustained by the victim could not

be either accidental in nature anyway whatsoever nor can it be

suicidal in nature. He stated that some of the injuries were

individually capable of causing death to the victim in ordinary

course of nature.

31. The Investigating Officer deposed as P.W.10. He narrated

about the course of investigation. He tendered the First

Information Report filled up by the lady Sub Inspector of Police.

The formal First Information Report was marked as Exhibit-7.

He tendered the rough sketch map with index prepared by the

Investigating Officer, Mihir Kumar Goswami which was marked

as Exhibit-8 and 8/1 respectively. He stated that, during

investigation, such Investigating Officer seized blood stained soil

and offending weapon, i.e., one grinding stone and blood

stained yellow coloured half pant of the victim from the house of

the victim and forwarded the same to the Forensic Science

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Laboratory. Such Investigating Officer arrested the appellant

and forwarded the appellant to Court. Due to transfer of the

first Investigating Officer, the case was transferred to the

subsequent Investigating Officer. Thereafter, the case was

transferred to him for investigation. During investigation, he

arrested the co-accused and forwarded the co-accused before

the learned Court. He submitted charge sheet bearing no.

237/07 dated September 30, 2007 against two persons under

Sections 302/34 of the Indian Penal Code, 1860.

32. On conclusion of the evidence of the prosecution, the

appellant was examined under Section 313 of the Cr.P.C.

where, he claimed that he was falsely implicated. He declined

to adduce any defence witness.

33. The victim was found dead on September 5, 2006 in his

room. The body of the victim was taken for post mortem

examination. The post mortem doctor being P.W. 9, found

eleven injuries on the dead body of the victim. The injuries

noted by the post mortem doctor P.W. 9 on the dead body of the

victim are as follows:

CRA 294 of 2021

1) Incised wound on lobule of right ear attached with

ear with a tag of skin.

2) Lacerated wound measuring about 3.5" X 0.5" X

bone deep on the left side of forehead placed above

and starting from lateral aspect of left eyebrow and

reaches upto medial side of the left eyebrow.

3) Lacerated wound 0.3" X 0.8" X bone deep on the

right side of the forehead just lateral to mid line.

4) Incised looking lacerated wound 1.5" X 0.2" on the

medial side of the left index fingure.

5) Left ring and little fingure proximal phalanx

fractured with extra vasation of blood in an

around.

6) Incised chopped wound 04" x 2" into bone deep

placed over left side parietal and temporal area of

scalp corresponding area had cut fracture over

outer table of skull bone. When I opened the scalp

of the deceased I found injuries:-

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7) Hematoma 6.5" X 5" on the vertex and

surrounding area of the scalp

8) Right side parietal bone fissure fracture,

9) Occipital bone with fissure fracture on right side,

10) Sagital suture separation,

11) Subdural hemorrhage over whole brain surface."

34. P.W. 9 in his deposition stated that, the death was due to

the effects of injuries to the head and brain ante mortem in

nature. The injuries were collectively sufficient to establish that

the death was caused in ordinary course of nature. He also

said that the injury sustained by the victim could not be either

accidental in nature in any way whatsoever nor can it be

suicidal in nature.

35. Consequently, the post mortem report of the victim being

Exhibit 6 read with the deposition of P.W. 9, being the doctor,

who conducted the post mortem on the victim, conclusively

establishes that the victim was murdered.

36. As noted above, the dead body of the victim was found in

his room. The discovery was made by P.W. 4. P.W. 4 was a

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minor on the date of the incident. She was about ten years age

at that point of time.

37. In her deposition, P.W. 4 stated that, the victim was

sleeping in his room and that she was preparing the meal for

the day. No other persons were present in the premises when

the appellant entered their house. Exhibit 8 is the rough sketch

map of the place of occurrence. Exhibit 8 describes (A) as the

place of occurrence. Exhibit 8 will demonstrate that, the house

comprised of one room and an appertaining varandah thereto.

38. The deposition of P.W. 4 where it records "house" is

required to be considered in the context of exhibit 8.

39. P.W. 4 saw the appellant to enter into their "house". By

"house", therefore, it was a room that is being spoken of by P.W.

4 in her deposition. She was sent away by the appellant to

purchase 'Biri' for the appellant. She went away. She came

back and found the appellant to exit her "house". Her "house"

again is required to be understood in the context of Exhibit 8.

40. We took the assistance of Exhibit 4, which is the

statement of P.W. 4 recorded under Section 164 of the Cr.P.C.

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Exhibit 4 is in vernacular Bengali where, she describes that the

appellant entered into the Ghar (room in Bengali). She used the

word 'Ghar' in Bengali to denote room. She saw the appellant

to exit the room when she came back.

41. Exhibit 4 corroborates the oral testimony of P.W. 4 at the

trial. She is consistent in both exhibit 4 as well as in her oral

testimony at the trial when she says that the victim was

sleeping in his room, the appellant entered into such room and

sent P.W. 4 away for the purpose of purchasing 'Biri' for the

appellant and when she came back after such purchase, she

found the appellant to exit from such room.

42. In such circumstances, the prosecution was able to prove

beyond reasonable doubt that, the appellant entered the room

of the victim and came out of such room. P.W.4 was sent away

by the appellant. P.W.4 on returning and entering the room of

the victim found the victim dead. The last seen together theory

of the prosecution as against the appellant stands established.

43. Post-occurrence conduct of the appellant is also with some

consequence in the facts and circumstances of the case. When

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P.W. 4 returned after running the errand for the appellant, of

buying the Biri for him found the appellant to be trying to wash

his hands from a pot full of water and snails. The appellant was

found to be falling down on the ground and trying to stand up.

44. In the light of the facts established, the law on

circumstantial evidence as cited on behalf of the appellant

requires consideration.

45. Boby (supra) refers to Sharad Birdhichand Sarda (supra)

and is of the view that, the accused must be and not merely

may be guilty before a Court convicts the accused.

46. Ashok (supra) is of the view that, the initial burden of

proof is on the prosecution to adduce sufficient evidence

pointing out towards the guilt of the accused. However, in a

case it is established that, the accused was last seen together

with the deceased, the prosecution is exempted to prove exact

happening of the incident as accused himself would be with

special knowledge of the incident and thus endowed with the

burden of proof under Section 106 of the Evidence Act, 1872.

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47. In the facts of the present case, as noted above, the

prosecution was able to prove the fact that, the appellant was

last seen with the victim prior to his death and thereafter, the

dead body of the victim was discovered.

48. In Shri Gulzari Lal Tandon (supra), it was observed that,

an accused can be convicted on circumstantial evidence if every

other reasonable hypothesis of guilt was completely excluded

and circumstances were wholly inconsistent with the innocence

of the accused. It also went on to observe that in a case where

the prosecution rests purely on circumstantial evidence, motive

undoubtedly plays an important part in order to tilt the scale

against the accused.

49. Kanhaiya Lal (supra) is again on circumstantial

circumstance. It is of the view that, where a case rests squarely

on circumstantial evidence, inference of guilt can be justified

only when all incriminating facts and circumstances were found

to be incompatible with innocence of the accused or guilt of any

other person. Circumstances from which an inference of guilt

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of the accused was drawn was required to be proved beyond

reasonable doubt.

50. In the facts and circumstances of the present case, we are

of the view that, the prosecution was able to prove, at the trial

that, the appellant entered the room where the victim was

sleeping and exited therefrom with the victim being discovered

as dead immediately thereafter. In the facts of the present

case, all incriminating facts and circumstances proved by the

prosecution at the trial were incompatible with the innocence of

the appellant or the guilt of any other person.

51. The appellant did not record a statement under Section

161 of the Code of Criminal Procedure. Consequently no

portion of such Section 161 of the Criminal Procedure Code was

sought to be introduced at the trial under Section 27 of the

Evidence Act, 1872. Consequently, the ratio of Fulan Debi

(supra) is not attracted in the facts and circumstances of the

present case.

52. Kalicharan (supra) and Jai Prakash Tiwari (supra) are of

the view that, Section 313 of the Code of Criminal Procedure

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confers a valuable right upon the accused to establish his

innocence and can well be considered beyond a statutory right

as a constitutional right to a fair trial under Article 21 of the

Constitution.

53. In the facts and circumstances of the present case, since

the appellant did not record statement under Section 161 of the

Code of Criminal Procedure, therefore, question of marking any

statement of appellant under Section 27 of the Evidence Act,

1872 did not arise and consequently, the question of putting a

non-existent fact to the appellant in his examination under

Section 313 of the Code of Criminal Procedure did not arise.

54. In such circumstances, we find no ground to interfere with

the impugned judgment of conviction and the order of sentence.

We affirm the same.

55. CRA 294 of 2021 is dismissed.

56. Period of detention of the appellant pre-trial, during trial

and post-trial will be set off against the sentence imposed.

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57. In view of the dismissal of the appeal, no order need be

passed in the interim application. CRAN 1 of 2021 is also

dismissed.

58. A copy of this judgment and order along with the trial

court records be transmitted to the appropriate Court forthwith.

59. Urgent photostat certified copy of this order, if applied for,

be given to the parties on priority basis on compliance of all

formalities.

(Debangsu Basak, J.)

60. I Agree.

(Md. Shabbar Rashidi, J.)

DD/CHC/KC/AD