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