JUDGMENT Girish Chandra Gupta, J.
1. This is a Death Reference-cum-appeal arising out of a judgment dated 18th October, 2006, convicting the accused under Section 302 of the Indian Penal Code, and a further order dated 27th October, 2006, by which the accused was sentenced to death directing that he should be hanged by the neck till his death.
2. The prosecution case briefly stated is as follows:
On 27th June, 2005, at about 3 p.m. the accused, Debdas Ghosh, entered into the tenanted house of Kumari Tapati Mondal. He assaulted her on the head four or five times with a hammer with an object to kill her. She suffered bleeding injury. She was admitted to Kharika Mathani Prathamik Hospital. Since her condition was critical, she was shifted to Midnapur Medical College Hospital where she died at 7.30 in the morning on 28th June, 2005. The accused was charged under Section 302 and Section 448 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
3. The prosecution has examined 14 witnesses. No witness was examined on behalf of the defence. From the evidence of Smt. Reba Mondal, the mother of the deceased (P.W.5), it appears that the accused, Debdas Ghosh, proposed to marry the victim, Kumari Tapati Mondal. The proposal was, however, rejected by the father of the victim. P.W. 9, the father of the victim, corroborated the evidence of P.W. 5. He in his cross-examination deposed that his daughter had told him that she did not love the accused. She also told him that the accused had threatened her of dire consequence should she refuse to marry the accused.
4. P.W. 5, the mother of the victim, was suggested in the cross-examination that the victim, Tapati Mondal, had an affair with the accused Debdas Ghosh which she denied. P.W. 5 was also suggested that the accused went to the house of the victim four or five times when he was told to talk to the father of the victim. P.W. 9, the father of the victim, was suggested that he did not choose to accept the match. He was further suggested that the expenses of the training obtained by the victim were borne by the accused, Debdas Ghosh, which the P.W. 9 denied. In answer to the questions put to him in examination under Section 313 of the Code of Criminal Procedure, the accused stated that he had married the deceased, Tapati Mondal, at Dakshineswar Kali Temple.
5. From the evidence of P.W. 7, Atmananda Pania, who has been running a lodge known as Avisek Lodge' at Kharika, it appears that on 26th June, 2005, Debdas Ghosh, the accused, accompanied by one Biswajit came to his hotel and expressed his desire to stay overnight on the ground that he had missed the bus. The P.W. 7 was told that the room would be vacated by 10 a.m. on the following morning. On 27th June, 2005, both the accused and his companion told him that they would leave the room at 3 p.m. In the cross-examination P.W. 7 deposed that at 10.30 a.m. on 27th June 2005, the accused, Debdas Ghosh, and his companion went out of the hotel. Around 2.30-3 p.m. Biswajit came back to the hotel but Debdas did not. Biswajit told the P.W. 7 that they would leave the hotel as soon as his companion, Debdas, returned. Debdas did not return. Around 6.30-7.00 p.m. the police came and took Biswajit from the hotel. There is no significant cross-examination of P.W. 7. It has been elicited from the testimony of P.W. 7, during the cross-examination, that a sum of Rs. 40/- was paid to him on account of room charges. The rest of the cross-examination of this witness is confined to questions like whether the P.W. 7 had been running the hotel lawfully or illegally. That is a question with which we are not concerned in this case.
6. 27th June, 2005, was the day on which Baligeria S.C. High School reopened after the summer vacation. The victim, Tapati Mondal, was a teacher in that school. She was residing in a tenanted house belonging to Amal Bera, the P.W. 6. Due to poor attendance on 27th June, 2005, the school was closed at 1.45 p.m. According to the P.W. 1, the Headmaster, the victim returned to her residence after the school had been closed.
7. At about 3 p.m. when the P.W. 6, Amal Bera, the landlord was sleeping in his room, he was awakened by the cry for help. He rushed to the first floor and found the victim, Tapati Mondal, lying in a pool of blood and Sunil Ghorai (P.W. 3) helping her. He also found a hammer lying on the gate of that room. He noticed that Sisir, P.W. 8, had caught the accused, Debdas Ghosh. The P.W. 6 rushed to the Headmaster, the P.W. 1. He came back to the PO accompanied by the Headmaster. Sunil Ghorai brought a taxi. The P.W. 6, Amal Bera, his wife and the Headmaster, P.W. 1, took the victim by the taxi to Kharika Mathani Prathamik Hospital.
8. The P.W. 2, Dr. K. Ghosh, deposed that at 3.30 p.m. on 27th June, 2005, the victim was admitted with lacerated wounds on head with fresh oozing of blood. As per the statement of the patient, the wound was caused by Debdas Ghosh, son of Gour Ghosh of Basirhat, and the weapon used was a hammer. The statement of the patient was recorded in the injury report which has been marked Ex.4. The statement of the patient recorded therein is as follows:
Four contused (lacerated) wound of about one inch length on head with fresh oozing of blood from wound side. As per statement of patient the wound was caused by Sri Debdas Ghosh, son of Gour Ghosh of Basirhat. Weapon used hammer. Among the four wound one wound has bony fracture.
9. Exhibit 5 is a document in which the treatment given and the medicine administered have been indicated. By this document the patient was referred to Midnapore Medical College Hospital. Exhibit 5 contains, inter alia, the following information:
Multiple wounds on head caused by hammer.
10. We already have indicated that P.W. 6, Amal Bera, his wife and the Headmaster, P.W.I, had taken the patient to Kharika Mathani Primary Health Centre. P.W. 6, Amal Bera, deposed that the doctor had recorded the statement of Tapati Mondal. The P.W. 6 had earlier made a statement under Section 164 of Cr. PC which has been marked Exhibit 8. In his statement under Section 164 he deposed that before taking the patient to the hospital a boy by the name of Debdas Ghosh had been caught in front of his house. We already have noticed from the deposition of P.W. 6 that Sisir had caught the accused, Debdas Ghosh. In his cross-examination, the P.W. 6 was suggested on behalf of the defence that the accused had not been caught just at the staircase of his house. It was further suggested that he was caught at some distance, that is, from the road. To be precise the suggestions given to P.W. 6 in this regard are as follows:
I did not see this accd. in my house. Not true this accd. was not caught hold just at my staircase. Not true he was caught hold at a distance, i.e. from road.
11. Sisir who had caught the accused, Debdas Ghosh, deposed that he had caught the accused on the staircase of the house of Amal Bera. He was given the following suggestion:
Not true I have not caught hold Debdas. I have caught hold Debdas. Not true I did not catch Debdas (illegible) and on the staircase. Not true Debdas was caught hold on the public road. I cannot say (illegible) of time. The time of incident was before evening. Exact time can't be said.
12. P.W. 14, the IO, in his cross-examination deposed that Debdas was caught hold of in front of the house of Amal Bera and the police caught him from the house of Amal Bera.
13. From the evidence of P.W. 1 it appears that the distance of Kharika Mathani Primary Hospital from Amal Bera's house is five kilometers. The patient, we already have indicated, was taken by a taxi from the house of Amal Bera. According to P.W. 1, the Headmaster, after admitting the patient to the hospital, he went to the police station which is at a distance of another five kilometers from the hospital. He went to the police station by a motor cycle belonging to Sunil Ghorai, P.W. 3, and lodged information orally. It was yet to be evening before he reached the police station and gave the information. His further evidence is as follows:
From PS I returned to PO as per police. I came there with police. I cannot say number of police officers. They came in police car with them. Police was taken to PO -Veranda, and residence of the deceased.
14. The police seized blood-stained hammer, blood-stained hair of the deceased, blood-stained cotton and hair-clip of the deceased from the bedroom of the deceased. The seizure list has been marked Exhibit. 2. P.W. 1 deposed that on his way to Midnapore, he had stopped at the P.S. as required by the police. In the P.S. at 6.30 p.m. the seizure list was prepared when besides himself Amal Bera and Sunil Ghorai were also present. Tapati was kept waiting. At about 7 p.m. they set out from the police station for the Midnapore Hospital.
15. In his cross-examination P.W.I deposed as follows:
She was taken at about 6.15 p.m. Then bleeding was stopped. There was severe pain. Distance between Kharikabari PHC and Midnapore is 70 km. Baripota is at a distance 60 km. We reached at Midnapore hospital at 11 p.m. in the night.
16. The P.W. 1 further deposed that the patient was declared dead at 7.30 in the morning on 28th June, 2005.
17. Dr. S.K. Pandey, P.W. 4, who conducted the post-mortem on the deadbody of the victim, Tapati Mondal, deposed that in his opinion the death was due to injury to head and brain, ante-mortem and homicidal in nature. He proved the post-mortem report which was marked Exhibit 7. In his cross-examination he deposed that the type of injury he found on the deadbody could not have been self-inflicted or accidental. He further deposed that if the head had come in contact with blunt circular object, such injury might have been caused. He further deposed that the entire body was dissected. There is, however, no mention in the report as regards the sexual organs. He was suggested that he had withheld report or finding as regards breast and vaginal track of the victim which he did not dispute. He, however, in his cross-examination has deposed that he had examined the breasts, labia majora and labia minora which come within the external genital organs. However, in his report there is no mention about any of those things.
18. Mr. Verma, the Learned Counsel, appearing in support of the appeal, drew our attention to the evidence of the 10, P.W. 14. The 10 has deposed that the FIR was lodged at 8.15 p.m on 27th June, 2005. Seizure list being Exhibit.2 goes to show that the seizure was made at 9.45 p.m. on 27th June, 2005. Prafulla Kumar Singha, P.W. 1, is a signatory to the Exhibit '2'. The P.W. 1 in his cross-examination deposed that he had reached Midnapore Medical College Hospital along with the victim at or around 9 p.m. and had started from Kharika Mathani Primary Health Centre at 6.15 p.m. Mr. Verma urged that P.W. 1 evidently is not a reliable witness. If he had already reached Midnapore Medical College Hospital at 9 p.m. on 17th June, 2005, he could not have been at Baligeria village for the purpose of subscribing to the seizure list at 9.45 p.m. on 27th June, 2005.
19. Mr. Verma drew our attention to the inspection memo which has been marked Exhibit 11. P.W. 14, the 10, deposed that the inspection memo was prepared on 27th June, 2005. The inspection memo has been signed by Dr. Krishnendu Ghosh, P.W. 2, on 28th June, 2005. He, therefore, submitted that P.W. 14 is equally an unreliable witness. He cited some more examples why P.W. 14 could not be believed. P.W. 14 deposed that on 27th June, 2005, he found the victim, Tapati Mondal, in Kharika Mathani Primary Health Centre at 10 p.m. He further deposed that he was there for fifteen minutes whereas evidence of P.W. 2, Dr. Ghosh, is that on 27lh June, 2005, the police did not contact him. Mr. Verma submitted that at 10 p.m. on 27th June, 2005, the victim had already reached Midnapur Medical College Hospital. Therefore, the deposition of P.W. 14 that he saw her at Kharika Mathani Primary Health Centre at 10 p.m. on 27th June, 2005, cannot but be a blatant lie. Moreover, the deposition of P.W. 14 is contradicted by the doctor. The P.W. 14 deposed that material Exhibit II, wearing apparel produced in Court, belonged to the victim and he had seen her in that dress, but he had to cut a sorry figure when after examining the apparel, he deposed that there was no blood-stain and admitted the same had not been sent to Forensic Science Laboratory.
20. We are inclined to think that P.W. 1, the Headmaster, is a trustworthy witness. He had taken the victim to the local hospital. He reached Kharika Mathani Primary Health Centre at about 3.30 p.m. and immediately thereafter went to the police station and informed the police about the incident orally. We also have indicated above the evidence which goes to show that the police was informed before it was evening. We have evidence before us to show that Biswajit was picked up by the police from Avisek Lodge between 6.30 p.m. and 7 p.m. Therefore, it is only natural to proceed on the basis that the main accused, Debdas Ghosh, had already been picked up. The accused, Debdas Ghosh, was arrested from the house of Amal Bera. He had been caught by Sisir, P.W. 8, immediately after the incident. The suggestions, given on behalf of the accused, noticed above lend assurance to this finding. A hue and cry was raised. People rushed from all corners. The accused was chased and caught by Sisir (P.W. 8). The statement of Sisir under Section 164 Cr. PC lends support to this finding.
22. We are inclined to think that on the basis of oral information the police plunged into action; arrested the accused; seized the incriminating articles and picked up Biswajit, the companion of the accused, from Avishek lodge. The paper works, namely, the FIR and the seizure list may have been prepared or taken on the record subsequently. That is why the FIR appears to have been lodged at 8.15 p.m. and the preparation of the seizure list at 9.45 p.m. This irregularity has created the mismatch which the would not admit and the P.W. 1 being a layman might not have known the intricacies. The appellant wants to take advantage of this situation which obviously cannot be allowed nor can an otherwise truthful case be thrown out for the technical reasons. There is no substance in the submission that the inspection memo was not prepared on 27th June, 2005. As a matter of fact, the P.W. 14 in his cross-examination, has corrected himself and stated that the inspection memo was prepared on 27th June, 2005, but it was sent to the doctor on 28th June,2005, when the doctor checked up the accused, Debdas Ghosh, and signed it. Exhibit 11 contains the seal of Kharika Mathani Primary Health Centre immediately below the signature of the doctor. There is thus no infirmity in this part of the case either.
22. The next submission made by Mr. Verma is that although the P.W. 2, Dr. Ghosh, deposed that the patient was in the hospital for four hours but the Exhibits 4 and 5 do not indicate that. Exhibit 4 is an injury report and Exhibit 5 is a document by which the patient was referred to Midnapore Medical College Hospital. There was no occasion to record the duration of stay of the patient in Kharika Mathani Primary Health Centre on 27th June, 2005. We, therefore, do not see any substance in this submission.
23. The next submission of Mr. Verma is that Sunil Ghorai, P.W. 3, is not a trustworthy witness and his evidence that he witnessed the incident cannot be believed. We are also inclined to think that it is not safe to proceed on the basis that Sunil Ghorai is an eye-witness. The reasons why we think so are as follows:
(a) In his examination-in-chief, the P.W. 3, Sunil Ghorai, deposed that he witnessed the incident taking place in the first floor of the house of Amal Bera standing on the street in front of his house. In his crossexamination he deposed that he witnessed the incident from the landing of the staircase of the house of Amal Bera. In his statement under Section 164 Cr. PC which has been marked Exhibit 6 he stated that at the relevant point of time, he was standing in front of his house with a motor cycle. At that point of time he heard the hue and cry. He rushed to the house of Amal Bera and saw a boy hitting at the head of the victim. Therefore, it is self-evident that he has given three different versions. According to Section 164 statement he was present at the PO when the victim was being assaulted. According to the evidence in his examination-in-chief, he saw the assault standing on the street in front of his house. According to his deposition in cross-examination, he saw the incident standing on the landing of the staircase of the house of Amal Bera. These are the reasons why we think that it is not safe to proceed on the basis that Sunil Ghorai is an eye-witness in this case. Mr. Verma, however, submitted that Sunil Ghorai could not have witnessed the incident from the road in front of his house because of the peculiar construction of the staircase. According to him, the room of the victim and the door thereof is not visible from outside and that, according to him, is the reason why Sunil Ghorai could not have seen the incident. This submission of Mr. Verma has not appealed us because there is nothing on the record on the basis of which one can say that the room occupied by Tapati Mondal in the first floor of the house and the door thereof is not visible from the road side. We have our own reasons, which we have indicated, why we do not want to treat him as an eye-witness.
24. The next submission of Mr. Verma is that Amal Bera, P.W. 6, did not talk about the fact that Debdas Ghosh, the accused, was tied with an electric pole. Amal Bera, based on personal knowledge, deposed that Sisir had caught Debdas Ghosh. In his statement under Section 164 Cr. PC, which has been marked Ex. 8, he had stated that a boy by the name of Debdas Ghosh was caught in front of his house. Therefore, the evidence given by Amal Bera in Court has been corroborated by his earlier statement under Section 164. P.W. 8, Sisir Bera, deposed that he caught the accused, Debdas Ghosh. He added that he had caught Debdas Ghosh in the staircase of the house of Amal Bera. He further deposed that the accused was tied by a rope with an electric pole. In his cross-examination he deposed that the accused was tied with an electric pole in the neighbourhood of the house of Amal Bera. P.W. 1, the Headmaster, has also deposed "After approaching there we found that local people caught hold one man and has tied him with an electric pole."
25. There is, thus, evidence to show that the accused was tied with an electric pole. We, however, are inclined to discard this part of the evidence for the following reasons:
(a) The P.W. 14, the 10, deposed that "I did not know if Debdas was tied (torn) pole. None (torn) told me that Debdas (torn) tied with pole".
(b) We find a material contradiction in the statement under Section 164 made by Sisir wherein he has stated that after hearing the hue and cry, he went to the house of Amal Bera, saw the victim bleeding profusely, chased the assailant, caught him and brought him to Amal's house. There is no mention in that statement that the accused was tied with an electric pole.
26. We, therefore, are not inclined to hold that there is satisfactory evidence to show that the accused was tied with a pole. There is, however, satisfactory evidence that the accused was caught in the neighbourhood of the house of Amal Bera, may be from the public road which is the case suggested by the defence which we have already indicated above.
27. It was submitted by Mr. Verma that the memo of arrest being Exhibit 10 discloses the name of Sunil Ghorai, P.W. 3, as the name of the relative of the accused in custody. He submitted that the question of Sunil Ghorai becoming a relative or a person intended to be informed about the arrest could not have arisen and this is a suspicious circumstance which the Court should take into consideration. It is true that this is somewhat surprising. But much of the force of this submission vanishes when we find that this question was not put to the 10, the P.W. 14 in cross-examination. The defence must have known the reason and that is why no question with regard thereto was asked.
28. The next submission made by Mr. Verma is that the hammer has not been produced before the Court nor has the same been exhibited. He submitted that the hammer would contain finger-prints of the accused and would unmistakably establish the complicity of the accused if he is the real culprit but for obvious reason the prosecution has failed to produce the hammer in Court. The hammer along with other articles appear to have been sent to the Forensic Science Laboratory but no report from the Forensic Science Laboratory has come on the record nor has anything been exhibited. Mr. Verma in support of his submission relied on a Division Bench judgment of the Karnataka High Court in the case of State of Karnataka v. Ramappa Aparai Ghasti reported in 2000 Cr. LJ 599. The case before the Karnataka High Court was based on circumstantial evidence. The Division Bench expressed the following view in paragraph 7 of the said judgment:
In the present case, the crucial question is as to whether the clothes of the accused were stained with blood, whether that blood was human blood and lastly whether that human blood matched the blood group of the deceased. These are the three aspects that would vitally link him with the murder. What we need to notice is that the accused was in the habit of visiting the deceased, the accused was a villager and was carrying an axe which itself is not necessarily an incriminating circumstances. But the entire complexion of the case would have changed if the prosecution had established that the axe and the clothes were blood-stained, that the blood was human and that it was of the blood group of the deceased. We are emphasising this point because this is really the missing link in the entire case and what we wish to presently point out is that it is only on this ground and on a strict application of the law relating to circumstantial evidence that this Court is required to give the benefit of doubt to the accused.
29. We are inclined to think that the case in hand is wholly different and the judgment cited by Mr. Verma does not lend any assistance. We have before us facts showing res gestae which we shall discuss hereafter. We also have before us a dying declaration recorded by the attending doctor. The accused was caught immediately after the incident and on the top of that, we are inclined to think, it does not lie in the mouth of Mr. Verma to submit that the prosecution failed to produce the FSL report or the hammer. The records reveal that on 19th September, 2006, an application was made on behalf of the prosecution seeking liberty to produce the seized articles along with the FSL report. By another application made on the same day, liberty was prayed for to examine the doctor of Midnapore Medical College Hospital. The prayer was opposed. On behalf of the accused liberty was sought to file a written objection. The prayer was opposed. A written objection filed by on behalf of the accused is on the record. It is due to their opposition that these applications made by the prosecution were rejected. The records further reveal that in order to examine one Subroto Dolui, a prayer was made on behalf of the defence for issuance of a warrant of arrest. Warrant of arrest was issued. Thereafter, on behalf of the defence, a prayer was made that the warrant should be recalled and on that basis by the order dated 25th September, 2006, the warrant was recalled. We, therefore, reject this point urged by Mr. Verma.
30. The next submission made by Mr. Verma was that the doctor, P.W. 2, did not administer the medicines to the victim for the purpose of prevention of blood loss.
31. The doctor in his evidence deposed that he stitched injuries to prevent loss of blood. Exhibit 5 goes to show the treatment given to the patient which includes stitching, dressing and injections. When the doctor deposed that he did not administer any medicines to prevent loss of blood, he meant that he did not administer the medicines apart from those appearing from the records. In any event, we are not impressed by this submission. At the highest what Mr. Verma hinted at is that with proper medicines, the death could possibly have been avoided. When the accused dealt deadly blows, he must be presumed to have known the consequence which in all probability was likely to cause death and this is what has happened.
32. The next submission advanced by Mr. Verma is that the father of the victim may have been interested in falsely implicating the accused.
33. This submission is equally without any merit. The father of the victim was not present at the place of occurrence. The accused was caught by the P.W. 8, one of the neighbours of the victim. The victim herself declared to the doctor as to who the assailant was. Therefore, we do not see any substance in this submission.
34. The next submission made by Mr. Verma is that the post-mortem report should have included the position of the sexual organs. He submitted that the accused in his examination under Section 313 stated that the victim had told him that Sunil Ghorai and others wanted to rape her. Mr. Verma submitted that if the sexual organs had been examined by the doctor, the veracity of this statement of the accused, in his examination under Section 313 could have been established.
35. We have not been impressed by this submission either. In the first place, the statement made by the accused, in his examination under Section 313, does not, in our opinion, contain any ring of truth in it. It is nothing more than a concoction. Even assuming everything in favour of the submission advanced by the Learned Counsel, we do not see how can the omission on the part of the autopsy surgeon to indicate the status of the sexual organs make any difference when the allegation is that mere attempt was made to rape. Mere attempt would not leave any sign on the sexual organs.
36. The next submission made by Mr. Verma is that P.W. 7, Pania, the proprietor of Avisek Lodge cannot be believed.
37. We are unable to accept this submission. In the cross-examination the evidence of P.W. 7 remained unshaken. In cross-examination it was elicited from him that Rs. 40/- was paid by the accused and Biswajit on account of room charges. Whether he has been running the lodge legally or illegally is besides the point altogether.
38. The next submission advanced by Mr. Verma is that the statement made by the accused in his examination under Section 313 that Sunil Ghorai and three others who attempted to rape the victim were really the accused persons and this would be evident from the evidence of the 10, P.W. 14, wherein he deposed as follows:
Then four accd. told that they would make confession before the Magistrate. I cannot say they did not say regarding substance of confession.
39. The earlier paragraph on the self-same page in the cross-examination of P.W. 14 reads as follows:
I submitted prayer for recording statement of witness Nos. 4 on 29.6.05. Prayer was allowed. On 4.8.05 nor the witness, nor I were present. I cannot say when the witness's statement were received.
40. It would at once be clear that the 10 was really referring to the four witnesses who wanted to record their statements under Section 164. The witnesses have wrongly been referred to as the accused. It is either a typographical error or a slip of the tongue. The fact remains that in this case there is only one accused. Our attention has not been drawn to any other case, in any way connected or related with this case, in which there were four accused. We have four separate statement recorded under Section 164 two of them have been exhibited, namely, Exhibits 6 and 8, and two of them have not been exhibited.
41. For the aforesaid reasons, we are of the view that this submission of Mr. Verma is altogether without any merit.
42. The next submission of Mr. Verma is that the accused had gone to Beligaria for the purpose of getting a job.
43. This is what he has stated in his examination under Section 313. We are, however, unable to accept this explanation.
44. The next submission of Mr. Verma is that Sunil Ghorai, P.W. 3, was seen holding the victim in his arms. He suggested that Sunil Ghorai had no business to be there in the room of the victim except with an oblique motive.
45. We cannot but observe that this is rather a far-fetched submission. P.W. 3 had rushed to the place of occurrence hearing hue and cry for help. The victim was profusely bleeding. He held her in his arms. This cannot be viewed with suspicion. We are unable to accept the submission regard being had to the natural human conduct.
46. Lastly, it was submitted by Mr. Verma that no motive has been proved in this case. On the contrary, according to him, there is possibility of false implication.
47. The motive, in our opinion, is self-evident. We already have discussed the evidence hereinabove which goes to suggest that the accused did not take the rejection of his proposal kindly. He had threatened the victim of dire consequence. By the offence the threat was made a reality.
48. Mr. Verma cited a judgment in the case of State of U.P. v. Babu Singh reported in 1999 Cr. LJ 2396 for the proposition that if it is doubtful as to who actually participated in the crime, then the benefit of doubt must be given to the accused, for in that case the theory, which is really cardinal principle of law, would apply that one innocent person should not be convicted even if nine persons have to be acquitted.
49. This judgment, in our view, has no manner of application to the facts of the present case. Here, there is no scope to entertain any doubt as regards the complicity of the accused. Therefore, the question of giving any benefit of doubt does not arise.
50. We may also quote the dicta of the Court of Appeal which was applied by the Supreme Court in the case of Jahira Sheikh reported in 2004(4) SCC 158 para 56 which reads as follows:
Law should not be seen to sit by limply while those who defy it go free and those who seek its protection lose hope.
51. This is another principle which the Court should bear in mind.
52. The next judgment cited by Mr. Verma is in the case of Deb Singh v. State of Karnataka reported in 1999 Cr. LJ 3387 for the proposition that conviction cannot be allowed to stand if the High Court finds that the prosecution has not been able to prove the case beyond reasonable doubt. Nobody can dispute with this proposition. What had happened in that case was that the important witness being a lady, who had reacted to the killing, was not examined and the evidence of the persons who were examined was insufficient. These facts are clearly distinguishable and, therefore, this judgment has no manner of application to the case in hand.
53. The next judgment cited by Mr. Verma is in the case of R. Rajendran v. State of Karnataka reported in AIR 1998 SC 1. In this case the case of the prosecution was that the accused-husband, along with one Krishnan, had hanged his wife. Krishnan was acquitted. Therefore, the original story that the accused husband had hanged his wife with the aid and assistance of Krishnan caved in and it is in these circumstances that the Supreme Court observed that the prosecution had failed to prove its case. Moreover, the autopsy surgeon in that case could not give any definite opinion as to whether the death was suicidal, homicidal or accidental. Therefore, this judgment is clearly distinguishable.
54. The next judgment cited by Mr. Verma is in the case of Laxmi Jani v. State reported in 1986 Cr. LJ 513. He drew our attention to paragraphs 6 and 17. In paragraph 6 of the judgment the proposition laid down is that extrajudicial confession must be voluntary, true and trust worthy. In paragraph 17 the proposition laid down is that where the case is sought to be proved by circumstantial evidence the chain must be complete. We do not think that there can be any quarrel with either of these proposition.
55. The next judgment cited is in the case of Jwinglee Ariel v. State of Madhya Pradesh . In this case, what had happened was that the prosecution had relied all along on a confession. That case was jettisoned in the High Court and the conduct of the accused was brought into question which was not allowed. Even otherwise the proof in support of the case was unstable. We do not think that this judgment has any manner of application to the facts and circumstances of the present case.
56. The next judgment cited by Mr. Verma is in the case of Mahinder Singh v. State wherein the following view was expressed:
In a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case.
57. In the present case the blood-stained hammer seized by the police as per Exhibit 2 was sent to the Forensic Science Laboratory along with other articles. Neither the articles nor the report came during the time when the prosecution led its evidence. Shortly thereafter both the FSL report and the hammer including other articles were received and an application was filed, which we have already discussed, for leave to produce both the hammer and the FSL report. Another application was also filed to examine the doctor of Midnapore Medical College Hospital. Both these applications were rejected on the opposition of the defence which we have already indicated. Therefore, we cannot say that there is no attempt on the part of the prosecution to prove the offending weapon and the FSL report. Albeit belated, but, an attempt was made by the prosecution which was not allowed.
58. Lastly, Mr. Verma cited the judgment in the case of Nagappa v. State of Karnataka wherein it was held that it is for the prosecution to prove its case affirmatively and it cannot gain any strength from the conduct of the accused in remaining silent. This is a well-settled proposition. But we do not see how can this have any relevance to the case in hand.
59. Mr. Dastoor, the Learned Counsel, appearing for the prosecution, submitted that there are at least two oral dying declarations on the record and one in writing. He relied on the evidence of P.W. 6, Amal Bera, who deposed that Tapati told that she had been assaulted by the accused with a hammer on her head five or six times. Similarly, P.W. 10, Debjit Sharma, deposed that on his interrogation the victim told him that she had been assaulted by Debdas Ghosh with a hammer. He also drew our attention to Exhibit 4, the injury report, wherein the doctor has recorded the declaration made by the victim. He further submitted that there is an extra-judicial confession made by the accused to the P.W. 10. P.W. 10 deposed that while the accused was tied with an electrical pole, he had confessed to the P.W. 10 that he had committed assault on the victim.
60. We are not inclined to believe the evidence of Debjit Sharma for the simple reason that the Headmaster, P.W. 1 deposed that Debjit Sharma was brought into the picture after he was asked by the P.W. 2, the doctor, to take the victim to Midnapur Medical College Hospital. It is at that stage the Headmaster went back to the school, took Debjit Sharma along and came to the hospital. Therefore, the story narrated by Debjit Sharma, which has its origin in or around the PO, cannot be believed because he was not there at that point of time. Since we have disbelieved Debjit Sharma, we do not also believe the oral dying declaration allegedly made to him by the victim. However, Exhibit 4 containing the declaration made to the doctor and the evidence of P.W. 6 and P.W. 2 in that regard, in our view, is unimpeachable and that has to be taken into consideration in deciding the case.
61. The next submission of Mr. Dastoor was that Debdas Ghosh, the accused, was a stranger in the locality. He was only known to the victim. It is the victim and the victim alone who knew his name, his father's name and his place of residence. Exhibit 4 goes to show the name of the accused, his father's name and his place of residence. These particulars could not have been given by any one other than the victim. He submitted that this lends an assurance to the Court that the declaration recorded by the doctor is true and believable. We are inclined to think that there is lot of substance in this submission of Mr. Dastoor.
62. The next submission of Mr. Dastoor is that P.W. 9, the father of the victim, deposed that Debdas Ghosh had gone to his house sometime in April/May, 2005. It is at that stage that his proposal was rejected. It is at that stage that he threatened the victim of dire consequence. On 27th June, 2005, the threat was translated into reality. The proximity between the threat and the offence establishes the case of the prosecution beyond any reasonable doubt. This Court should therefore affirm the conviction recorded by the learned Trial Court.
63. On the question of sentence, however, he added this is not a case where capital punishment could have been inflicted. He submitted that the punishment should be commuted to life imprisonment.
64. From the evidence discussed above and the submissions noted, we are of the view that the following circumstances against the accused appear to have been clearly established:
(a) The accused proposed to marry the victim, Tapati;
(b) The proposal of the accused was rejected by Tapati and her parents;
(c) The accused threatened Tapati of dire consequence sometime in April/May, 2005;
(d) On 26th June, 2005, the accused was in Baligeria. He spent the night of 26th June, 2005 at Avisek Lodge;
(e) On 27th June, 2005, at or about 10 -10.30 a.m. he came out of Avisek Lodge;
(f) The school where the victim, Tapati, was working had been closed at or about 1.45 p.m. on 27th June, 2005;
(g) She came back to her house shortly thereafter. Around 3 p.m. the accused entered the house of the victim, Tapati, and assaulted her with the hammer on her head;
(h) Hue and cry was raised whereupon the accused, Debdas Ghosh, was chased and caught near the house of Tapati somewhere on the road;
(i) Around 3.30 p.m. Tapati was removed to Kharika Mathani Primary Health Centre;
(j) The victim made a statement to the doctor that the wound was caused by Debdas Ghosh son of Gour Ch. Ghosh of Basirhat, and the weapon used by him was a hammer;
(k) The injury report goes to show that there were four contused (lacerated) wounds;
(1) Exhibit 5 also goes to show that there were multiple wounds on the head caused by a hammer;
(m) P.W. 4, the Autopsy Surgeon, deposed that some of the fractures on the skull of the deceased were circular in nature. They were homicidal and could have been caused if the head had come into contact with a circular blunt object.
65. We are inclined to hold that the statement of the victim Tapati that Debdas assaulted her on her head with a hammer, made immediately after the incident became relevant by way of an exception to the rule of hearsay and formed what is known as res gestae. The evidence of the Doctor (P.W. 2) who recorded the statement and corroborated by the evidence of P.W. 6, Amal is enough to record a verdict of conviction. We are fortified in our view by the following judgment.
66. In the case of Sukhar v. State of U.P. reported in 1999(9) SCC 507. The views expressed by Their Lordships in paragraphs 6 to 10 are as follows:
Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus:
Under the present exception (to hearsay) and utterance is by hypothesis offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.
7. Sarkar on Evidence (15th Edn.) summarises the law relating to applicability of Section 6 of the Evidence Act thus:
1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.
The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
2) The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy; riot & c the declarations of all concerned in the common object are admissible.
3) Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.
3) The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' that it becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary That such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however, slight it may be which was sufficient enough for fabrication then the statement is not part of res gestae."
9. In another recent judgment of this Court in Rattan Singh v. State of H.P. this Court examined the applicability of Section 6 of the Evidence Act to the statement of the deceased and held thus: (SCC p. 167, para 16) 'The aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder, Illustration 'A' to Section 6 makes it clear. It reads thus:
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
Here the act of the assailant intruding into the courtyard and during the dead of the might, victim's identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, all circumstances so interwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.
10. Applying the ratio of the aforesaid two cases to the evidence of P.W. 2, we have no hesitation to come to the conclusion that his statement indicating that the injured told him that his nephew has fired at him, would become admissible under Section 6 of Evidence Act. We are, therefore, unable to accept the first submission of Ms. Goswami, Learned Counsel, appearing for the appellant.
67. We are also inclined to think that the statement of the victim recorded by the Doctor can also be treated as her dying declaration. Reference can be made to the case oiMunnu Raja and Anr. v. State of Madhya Pradesh which is an authority on all fours of this case. The views expressed in paragraphs 9 and 10 are as follows:
9. In regard to the second dying declaration. Ex. P. 14. the main objection of the Learned Counsel is that it was made to the Investigating Officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a judgment of this Court in Balak Ram v. State of U.P. . The error of this argument consists in the assumption that the dying declaration was made to an Investigating Officer. The statement. Ex. P-14. was made by Bahadur Singh at the police station by way of First Information Report. It is after the information was recorded and indeed because of it that the investigation commenced and therefore it is wrong to say that the statement was made to an Investigating Officer. That Station House Officer who recorded the statement did not possess the capacity of an Investigating Officer at the time when he recorded the statement. The judgment on which the Counsel relies has therefore no application.
10. We are in full agreement with the High Court that both of these dying declaration are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad daylight and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of Bahadur Singh after the assault had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.
68. In paragrpah 7 of the judgment Their Lordships observed that law did not require the maker of the dying declaration to cover the whole incident or to narrate the case history. Their Lordships held in paragraph 7 of the aforesaid judgment as follows:
Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring.
69. It is now well-settled that corroboration of a dying declaration, if believed, is not necessary. Reference can be made to the case olKhushal Rao v. State of Bombay reported in 1958 SCR 552, wherein Their Lordships held that if the Court is of the opinion that the dying declaration is truthful, no evidence in corroboration is required. Reference in this regard may be made to the following sentence in the aforesaid judgment:
But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
70. Considering the facts and circumstance of the case and the law on the subject, we have no doubt, in our mind, that the conviction recorded by the learned Trial Judge is well-founded which is, therefore, upheld.
71. Now the question is with regard to the punishment. Capital punishment has been awarded in this case. There are at least four different reasons or grounds by which punishment is justified. One of the grounds is prevention. The punishment of death is one of the modes of prevention. The convict is thereby prevented from repeating such an incident. Justification for this type of punishment is grounded in self-defence. It is in pari materia with the right to private defence granted to an individual. A criminal offence is not only an offence against an individual or individuals but is also an offence against the society. Court inflicts punishment on behalf of the society. The object is to protect the society. When capital punishment is inflicted, the society does, in fact, exercise its right of self-defence. In order to defend itself from any further onslaught by the accused that the criminal is awarded capital punishment. He is put to death so that he is prevented for all times from committing any such crime in future. Now the question arises, does the accused-appellant possess a character of that nature? Is the appellant a perpetual threat to the society? Is the society at stake with the existence of the appellant? Is capital punishment the only mode of prevention which can be resorted to in this case? We do not think that any of these questions can be answered in the affirmative regard being had to the evidence on record.
72. Another aspect of the matter is that at one point of time, death was the rule and life imprisonment was exception. That law is no longer in force. It has been reversed. The position in law today is that life imprisonment is the rule and the death is an exception. It is only in rarest of rare cases that punishment of death shall be inflicted. As we have already indicated, punishment of death shall be inflicted when it is necessary for survival of the society, necessary for the safety of the society and necessary in order to set an example of deterrence to the like minded people who may be contemplating to commit a crime. We hasten to add that there are other grounds of inflicting a capital punishment which it is not necessary for us to discuss in this case.
73. Considering all these aspects of the matter, we are of the view that in this case death sentence cannot be allowed to stand. The Death Reference is, accordingly, answered. The appeal is partly allowed. The sentence of death is commuted to life imprisonment.
Lower Court Records with a copy of this judgment to go down forthwith to the learned Lower Court for information and necessary action.
Let urgent xerox certified copies of this judgment, if applied for, be delivered to the Learned Counsel, appearing for the parties.
K.K. Prasad, J.
74. I agree.