Sankar Acharyya, J.@mdashThis appeal has been preferred by appellant Golab Chandra Shaw challenging the judgment dated 29.01.2008 with orders of conviction and sentence of life imprisonment with fine of Rs. 5,000/- of the charge under Section 302 of the Indian Penal Code (in short I.P.C.) passed by learned Additional Sessions Judge, Fast Track, Court- II, Siliguri in Sessions trial No. 1 of 2008 corresponding to Sessions Case No. 48 (S) of 2007 arising out of Matigara Police Station Case No. 175 of 2006 dated 18.12.2006.
2. Initially, said case was started under Section 302/34 of the Indian Penal Code against this appellant and his two minor grandsons viz. Goutam Shaw and Chandan Shaw as accused persons. The case of said two minor accused persons has been splitted up for their decision before Juvenile Justice Board, Coochbehar.
3. Prosecution case in substance is that on 17.12.2006 in the evening at about 6:00 p.m. at village - Shibnagar aforesaid Goutam Shaw, Chandan Shaw and Pankah Pathak (victim) and Raju Singh (PW 8) were playing badminton on the village road under street-flood-light. During such play altercation and quarrel took place between Pankaj pathak and the grandsons of the appellant. Then Chandan called this appellant from home. The appellant enquired about Pankaj at that place when goutam and Chandan caught hold of Pankaj and appellant Golab Chandra Shaw abused and assaulted Pankaj by a knife on his belly and chest. Raju Singh raised hue and cry. Some persons came there. Accused persons tried to flee away but the appellant was apprehended by them. Pankaj was removed to Siliguri hospital for treatment but in that hospital he was declared dead by doctor after examination. The appellant was manhandled at the place of occurrence (in short P.O.) by assembled persons causing his injuries. The appellant was taken to North Bengal Medical College and Hospital by the local persons and he was admitted there. In that night on 18.12.2006 at 1:30 a.m. Binode Pathak lodged written complaint as First Information Report (in short F.I.R.) at Matigara Police Station when the case was started and investigated by Police. After completion of investigation charge-sheet was submitted against this appellant. Separate charge-sheet was filed against two juveniles.
4. In the trial Court, a charge under Section 302/34 of the Indian Penal Code was framed against this appellant. Said charge was read over and explained to the appellant accused when he pleaded not guilty claiming to be tried. Accordingly, the case was tried in the Trial Court and said trial ended in the impugned judgment and orders of conviction and sentence.
5. During trial prosecution examined fourteen witnesses and adduced some documents as exhibits. Prosecution also produced some materials as material exhibits during trial.
6. Defence of the appellant accused is denial of the allegations of prosecution brought against him. Specific defence of the accused appellant is his ''alibi''. He claimed that at the time of alleged occurrence he was not present at the place of occurrence as he remained admitted in North Bengal Medical College and Hospital for his injuries sustained in a road accident on his way of returning home from his sister''s matrimonial home. He claimed that he was admitted in hospital on 17.12.2006 and was discharged from hospital on 20.12.2006 for his road accident. On the other hand, prosecution claims that he sustained injuries on his persons as he was manhandled by local persons after apprehending him soon after the occurrence and he was admitted in hospital by local villagers and he was discharged from hospital on 20.12.2006. During his stay in hospital in the same night of occurrence he was arrested by police on 18.12.2006 in hospital.
7. Learned Advocate for the appellant has advanced his arguments that although prosecution has claimed that PW 6 Bikash Kumar Singh, PW 8 Raju Singh and PW 9 Guddu Kumar Pandey are eye-witnesses of the alleged occurrence but they cannot be relied as eye-witnesses of the occurrence which allegedly took place in a dark foggy evening. He has further argued that the appellant was apprehended on the spot immediately after alleged occurrence but prosecution failed to produce the incriminating knife which is sufficient to hold the prosecution case doubtful and to extend the benefit of doubt in favour of the accused appellant. According to learned Advocate for the appellant it is highly improbable that the appellant was armed with knife while he was wearing Dhoti and Punjabi. It is also his arguments that the investigating police officer (in short I.O.) should have investigated as to whether the appellant was admitted in North Bengal Medical College and Hospital before the alleged occurrence for any road accident or not. Lastly learned Advocate for appellant argued that even for the sake of arguments if it is admitted that the occurrence took place as alleged then also in view of exception- 4 to Section 300 of the Indian Penal Code the offence comes within the purview of culpable homicide not amounting to murder and it comes under Section 304 (Second Part) of the Indian Penal Code.
8. Learned Advocate for the State-respondent has argued that there is sufficient evidence in the depositions of witnesses to prove that the occurrence took place under flood light of street where the victim and others were playing badminton and to prove that there was no fog at the relevant time of occurrence. According to him, there is no reason to disbelieve the eye-witnesses PW 6, PW 8 and PW 9. He has argued that it was burden of accused appellant to prove his alibi but he did not adduce any evidence either by bringing his sister as a witness or by calling for the hospital records to discharge his burden. He has submitted for dismissal of the appeal.
9. From the depositions of fourteen witnesses examined by prosecution during trial it appears to us that prosecution has examined PW 1, PW 2 and PW 3 to prove that on being informed by Ward Master of Siliguri S.D. Hospital about death of Pankaj Pathak Siliguri Police Station U.D. (unnatural death) case No. 276 of 2006 dated 17.12.2006 was registered and in connection with that case inquest over the dead body of Pankaj Pathak was held by PW 1, dead body was taken to North Bengal Medical College and Hospital by PW 2 for post mortem examination and after post mortem examination PW 2 carried the wearing apparels of the deceased and blood nail, hair, viscera of the deceased which were collected by autopsy surgeon and on production of the same by PW 2 the PW 1 seized those articles under a seizure list in presence of PW 3. The PW 4 lodged FIR at Matigara Police Station and the FIR was written by PW 7 under instruction of PW 4. PW 5 and PW 10 are post-occurrence witnesses. PW 6, PW 8 and PW 9 are eye-witness of occurrence. PW 11 received the complaint of PW 4 at Matigara Police Station as Officer-in-Charge and endorsed the case in favour of PW 14 for holding investigation. There is no substantive evidence in the deposition of PW 12. PW 13 held post mortem examination over the dead body of Pankaj Pathak and PW 14 investigated the case.
10. On scrutiny, we find that PW 4 is not eye-witness of the occurrence. His evidence relating to occurrence appears to us ''hearsay''. He has proved his lodging of FIR at Police Station and writing of the FIR by PW 7 under his instruction. During his cross-examination he has proved that his house is 200-250 feet away from P.O. and the house of the appellant is about 20 feet away from the P.O. Although he stated in his cross-examination that at the time of incident there was dark and slight foggy weather but he clarified that there was street light where the boys were playing badminton. He has stated during cross-examination that when he went to the P.O. he saw the appellant was caught hold by the village people. In his examination-in-chief he stated that he saw Pankaj was lying on the ground after assault and he was taken to hospital by village people. This PW 4 came to learn about the incident from PW 8 and PW 9.
11. According to PW 5, he is post occurrence witness. He was informed about the incident by PW 8 and then PW 5 went to the P.O. and found the appellant present there. The appellant was held by PW 9. This PW 5 accompanied the appellant at the time of shifting him to hospital as there was bleeding on the body of the accused appellant.
12. PW 10 is also not eye-witness of any incident of assault. Hearing hue and cry he came to the P.O. and found Pankaj (victim) was lying with bleeding injury on the road in front of the house of PW 10. At that time appellant was trying to flee away from that place but PW 6, PW 9 and other villagers apprehended the appellant. Then PW 6, PW 8, PW 10 and others took the victim Pankaj to Siliguri hospital, by a city-auto of PW 10, where the doctor declared Pankaj as dead. In his cross-examination nothing has come to contradict himself.
13. PW 11 was the Officer-in-Charge of Matigara Police Station at the relevant time. He received the written complaint of PW 4 and registered Matigara P.S. case No. 175 of 2006 dated 18.12.2006 under Section 302/34 of the Indian Penal Code. He endorsed the case to PW 14 for investigation.
14. According to prosecution case the PW 8 - Raju Singh, victim - Pankaj Pathak, accused Goutam Shaw and accused Chandan Shaw were playing badminton at the place of occurrence immediately before appearance of the appellant Golab Chandra Shaw at the scene on call by his grandson Chandan from his house adjacent to the P.O. and assault on the victim Pankaj by the appellant with a knife. As such, this PW 8 saw the entire occurrence from beginning to end. This PW 8 is star witness of the prosecution. PW 8 has given a vivid description of the occurrence. According to him, during their play of badminton a dispute cropped up between Chandan and Pankaj when Pankaj pushed Chandan. Then Chandan called the appellant to the P.O. They came to the P.O. in presence of PW 8. Appellant Golab Chandra Shaw asked for identification of Pankaj when Pankaj himself disclosed his identity as Pankaj Pathak. Then the appellant used some filthy language towards Pankaj. At that time accused Chandan caught hold of Pankaj and stated to Golab Chandra (appellant) that said Pankaj assaulted him (Chandan). Thereafter another accused Goutam also caught hold of Pankaj and Golab Chandra Shaw assaulted Pankaj by a knife on his belly and chest which was seen by PW 8 with his own eyes. Then PW 8 cried out that "Pankaj ko mar diya chakushe". Hearing it Guddu (PW 9) reached there and also witnessed that Golab Chandra assaulted Pankaj with a knife. PW 9 wanted to rescue Pankaj from Golab Chandra and received bleeding injury on his hand. Pankaj fell down and the appellant tried to flee away from that place but Guddu (PW 9) and other neighbouring people caught hold of Golab Chandra Shaw and assaulted him. Thereafter, PW 8, PW 10 (Munna) and others took Pankaj to Siliguri S.D. Hospital where the doctor checked and declared Pankaj as dead. The dead body was kept in hospital and PW 8 alongwith others returned home. Then Golab Chandra Shaw was taken to North Bengal Medical College and Hospital by PW 5 Rameswar Yadav, Guddu (PW 9) and police officer who also reached the P.O. and the appellant was admitted in that hospital. During cross-examination PW 8 has explained that at the time of incident dark came out but there was street light and there was no fog at the time of incident. Although PW 8 has stated that it will take 30 to 35 minutes from the P.O. to the house of Golab Chandra Shaw apparently, this statement appears to us a misstatement of PW 8. In this connection we like to mention that the exhibit- 11/1 which was prepared by PW 14 as I.O. shows location of the house of appellant, according to sketch map with index, is adjacent to the P.O. road. The PW 4 has stated that the distance between P.O. and house of appellant is about 20 feet. PW 9 has stated that the house of appellant is about 30 feet away from the P.O. PW 10 has stated that the appellant is residing within 3/4 feet away from the road where the boys were playing. As such, according to the true distance between P.O. and house of appellant 30-35 seconds time may be required to reach the P.O. from the house of appellant. As such, we have no hesitation to believe that the time mentioned by PW 8 as 30-35 minutes is his misstatement. PW 8 has stated about arrival of police at the P.O. before shifting the appellant to North Bengal Medical College and Hospital for treatment but his said statement does not get support from depositions of police witnesses PW 1, PW 2, PW 3, PW 11 and PW 14. As such, we do not believe the statement of PW 8 as true. It is the settled principle that ''falsus in uno, falsus omnibus'' is not applicable in India. We like to mention that PW 8 has not left any room to disbelieve the fact that the appellant Golab Chandra Shaw assaulted the victim voluntarily with a knife resulting death of victim Pankaj Pathak on 17.12.2006 at about 6:00 p.m. on the road under street light where PW 8 alongwith victim Pankaj and two juveniles Goutam and Chandan were playing badminton. In the four corners of the record we do not find any reason of giving false or untrue evidence by PW 8 against the appellant. In our view, evidence of PW 8 alone is sufficient to prove the fact that the appellant Golab Chandra Shaw stabbed Pankaj Pathak voluntarily by a knife causing his injuries on chest and belly and Pankaj succumbed to such injuries on his way to hospital.
15. PW 13 held post mortem examination over the dead body of Pankaj Pathak on 18.12.2006. PW 13 has proved the post mortem report as exhibit- 10. It is evident from exhibit- 10 and deposition of PW 13 that there were stab wounds on chest, belly and other parts of dead body of Pankaj Pathak and the death was caused due to the effect of such injuries, caused by sharp cutting weapon which are ante mortem and homicidal in nature.
16. PW 6 - Bikash Kumar Pathak was examined by prosecution as eye-witness of the occurrence. Learned counsel for the appellant has claimed that PW 6 cannot be believe as a trustworthy witness. According to PW 6, he was present in his house. He heard hue and cry from the P.O. and he rushed to the P.O. taking one minute time to reach there. He found at the P.O. that Golab Chandra Shaw (appellant) assaulted to Pankaj with a knife on his belly and again on his chest. Witnessing said incident PW 6 caught hold of the victim Pankaj with bleeding injuries on his persons and PW 6 saw that the appellant was trying to flee away but Guddu (PW 9) and others apprehended the appellant Golab Chandra Shaw. Then PW 6, PW 8, PW 7 and one Goutam took the victim Pankaj Pathak to Siliguri Sadar Hospital for treatment but the doctor of the hospital declared Pankaj as dead. The said evidence corroborates PW 8. PW 6 also stated about seizure of a pair of Chappals of the appellant by PW 14 (I.O.) from the place of occurrence and identified said chappals in Court during trial. During his cross-examination PW 6 stated that he saw the incident of assault from a distance of 200 feet. Learned counsel for the appellant has claimed that witnessing of the incident from such distance is improbable. From the totality of the evidence of PW 6 it appears that the incident occurred under street-light in that fogless dark evening but though not impossible to see the incident by PW 6 from a distance of 200 feet while PW 6 was proceeding towards the P.O. from his house but a shadow of doubt comes to our mind as to whether PW 6 witnessed the actual incident of assault on Pankaj Pathak from such distance as has been stated by him. We find no reason to hold the PW 6 as not truthful witness but we are of the opinion that due to the distance of the place of incident from PW 6 there might have mistake of PW 6 in seeing the incident. As such, we are not inclined to base our decision, on the question of incident of causing injury to the victim in the alleged occurrence, solely on the deposition of PW 6 but we like to rely upon PW 6 for the purpose of corroboration to PW 8.
17. PW 9 was examined by prosecution as another eye-witness of the occurrence. PW 9 claimed that hearing hue and cry he went to the P.O. from his house. He found that Goutam and Chandan were holding Pankaj and Golab assaulted Pankaj with one knife on his belly and chest. Then PW 9 caught hold Golab and Golab was trying to flee away from the hands of PW 9. Golab tried to assault PW 9 also. At the time other villagers went there and caught hold of Golab and began to assault him. Then PW 6, PW 8, PW 10 and one Goutam took Pankaj to Siliguri S.D. Hospital for treatment. Thereafter, police went to the P.O. and PW 9, PW 5 and police officer took Golab Chandra to North Bengal Medical College and Hospital for treatment. This PW 9 is also witness of seizure of one pair chappals of the appellant. He is also witness of seizure of wearing apparels of Pankaj by police. Corroborating PW 4 this PW 9 has stated that he stated about the incident to PW 4. During cross-examination this PW 9 stood with credibility and he left no room to disbelieve him. Therefore, we believe that PW 9 is also trustworthy witness of the incident of assault by the appellant to the victim Pankaj. But his evidence regarding arrival of police at the P.O. before shifting the appellant for treatment is not free from doubt for want of corroboration by any police witness.
18. No question was put to PW 6, PW 7, PW 8, PW 9 and PW 12 relating to whereabouts of the incriminating knife. During trial the incriminating knife was not produced as the same was not recovered or seized.
19. PW 14 is the investigating Police Officer (I.O.). During his cross-examination he has stated that on the same night when he reached the P.O. he made search for the offending weapon. He came to learn from PW 8 and PW 9 about the offending weapon. In his examination-in-chief he stated that he came to know from the witnesses that Golab Chandra Shaw threw away the offending weapon by the side of "Hanuman Mandir" at Shibnagar and accordingly he made search there but he did not find the offending weapon. He has proved the search list with ''NIL'' seizure as exhibit-8/2. The seizure list discloses the place of seizure as pucca road near "Hanuman Mandir", Shibnagar in front of house of Shambhu Singh. In the sketch map with index of the P.O. the "Hanuman Mandir" has been drawn and marked as letter "H" and the house of Shambhu Singh has been shown and marked as letter "D". As per exhibit- 11/1 sketch map with index the "Hanuman Mandir" is not within close distance from the house of Shambhu Singh. As such, the place of seizure as mentioned in exhibit- 8/2 is not very convincing and also does not tally with the description of the place where the offending weapon was thrown by the appellant as stated by PW 8 and PW 9 to PW 14. In our view, there was lack of proper vigilance of the PW 14 in searching for the offending weapon. This is a fault of the I.O. but such fault of the I.O. cannot be a ground to brush aside the strong positive evidence of eye-witnesses PW 8 and PW 9 and their corroboration by PW 6 against the appellant during trial. We find nothing else as flaw on the part of I.O. in his evidence.
20. In summing up, we are satisfied to hold and therefore, we hold that on 17.12.2006 in the evening at about 6:00 p.m. the appellant Golab Chandra Shaw voluntarily assaulted Pankaj Pathak on his vital organs chest and belly with sharp cutting weapon which ultimately caused the homicidal death of Pankaj Pathak.
21. Whether such homicidal act of the appellant comes within the purview of Section 304 (Second Part) of the Indian Penal Code or it fulfils the ingredients of Section 302 of the Indian Penal Code. In order to find out the actual answer we have gone through the provisions of Section 300 of the Indian Penal Code.
22. In this case, prosecution has not adduced any evidence to prove prior inimical relationship between appellant and the victim Pankaj but during examination of accused appellant under Section 313 of the Code of Criminal Procedure, he made voluntary statement against last question No. 19 that Pankaj was wicked person. It is evident that appellant assaulted with deadly weapon knife on vital organs like chest and belly of the victim Pankaj Pathak. The ingredients of Section 302 of the Indian Penal Code have been fulfilled against the appellant. Therefore, we do not accept the arguments of learned Advocate for the appellant that the appellant might have been convicted and sentenced of the offence punishable under Section 304 (Second Part) of the Indian Penal Code. We find and hold that the appellant Golab Chandra Shaw has been rightly convicted and sentenced of the charge under Section 302 of the Indian Penal Code.
23. As a result, we dismiss this appeal. A copy of this judgment be sent to the Trial Court for information.
24. Urgent Photostat certified copy of this judgment, if applied for be supplied to the parties or their advocates observing all legal formalities.
Aniruddha Bose, J.
I agree.
