Judgment:
Kalyan Jyoti Sengupta, J.
1. The above appeal before us is for reversal of judgment of conviction and sentence passed by the learned Sessions Judge, Bankura dated 22nd September, 2003 in Sessions Trial No. 3 of 2001 and Sessions Case No. 1 of 2000. By this judgment the appellant has been sentenced to Suffer imprisonment for life and also pay fine of Rs. 2,000/- in default to suffer imprisonment for three months, under Section 302 of Indian Penal Code (in short the I. P. C).
2. The aforesaid trial was initiated with lodging of complaint by the appellant himself on the basis of which FIR was drawn up. Thereafter in course of investigation it was suspected reasonably by the I. O. that the appellant himself was the offender. Therefore, after completion of investigation charge-sheet was submitted, arraigning the appellant under Section 302 of the I. P. C. for committing murder of his daughter namely, Milli/the prosecution case, in short, is as follows:
On 12th October, 1997 at about 3.05 a.m. the appellant himself went to Barjora P.S. and made an oral complaint to the effect that on 11th October, 1997 at about 10 p.m. in the night when there was none in his house except himself and his younger daughter Milli who was aged about 14/15 years he went to bed after dinner with his daughter. His son was away for visiting his in-laws house on the occasion of Bijoya Dasami with his wife. His elder daughter had been married off and was in her in-laws house. Thereafter about 11/11.45 p.m. at night he was awakened with (hearing of) a groaning sound and woke up from his bed. He detected sound could be heard from the room where his younger daughter Milli was sleeping when she was lying on the bed. He quickly went to his daughter's room and tried to ascertain reason of groaning sound. He found Milli unconscious, let alone her ability to talk. He then made her seated in the bed and had found in the light of lantern that her bed was full of blood and back side of her frock was soaked with blood too. Having noticed this he cried out in fear and having heard his crying sound the neighbours rushed to his house and thereafter no sound could be heard from his daughter. The neighbours having found the condition of his daughter opined that the blood had been oozing out near the neck of his daughter and they told that she had died. Thereafter, he sent intimation to one Tarapada Ghosh an ex member of village Panchayat and another villager one Manik Pal. They came and examined Milli carefully in order to find cause of oozing of blood. After looking into carefully in the light of lantern they found a deep mark of injury below the jaw of the right side of her neck. He thus suspected some one or more than one unknown persons might have murdered. Thereafter, the villagers informed about the incident to the local political party office and as per their advice the aforesaid information was sent to the local police camp. The aforesaid complaint was made in Bengali. Immediately thereafter the investigation was started with the inquest. The then I. O., one Debasish Majumdar did the inquest and prepared report and found that deep bleeding injury was found beside the trachea below the jaw of right side of the neck of the deceased. He could find bloodstained bed and her wearing apparels. In the inquest report it was recorded that death was due to cut throat injury by sharp weapon. Thereafter her body was sent for post-mortem examination. The autopsy surgeon reported following injuries:i) One incised wound 2' x 1/2' and 2' x 1' on the vessels and larynx trachea over right side of the upper part of the neck. Upper and inner portion of the neck the wound is 1/2' to the right of middle of front and was 2' the right of midline of the front and 3' above the sternal notch on the lower jaw and 4' x 4' above the heel.
3. The doctor in his report opined that death was due to the cut throat injury and the same was ante mortem and homicidal in nature.
4. It appears from the record that there has been no eyewitness nor there was any recovery of offending weapon. As such in order to detect suspected offender the help of the sniffer dog was requisitioned and it was noticed that the perception of the dog was strongly directed and/or aimed at the appellant as being probable assailant, and in course of investigation the appellant was arrested. Ultimately the charge was framed against the accused. Admittedly there has been no eyewitness in this case. There are as many as 10 witnesses examined to support prosecution. Out of 10 witnesses P. W. 1 Tarapada Ghosh, P. W. 2 Dulu Ghosh, P. W. 3 Smt. Sandhya Ghosh and P. W. 4 Kalyani Pal were declared hostile. The other witnesses namely P. W. 5 and P. W. 6 were of no help as their deposition did not have any impact in the trial. P. W. 7 was the last I. O. who completed investigation and sent seized articles to F. S. L. for chemical examination and also collected the post-mortem report. P.W. 8 Guiram Pal was the son-in-law. P.W. 9 Debasish Majumdar was the I. O. who had conducted almost entire investigation. He had taken all the statements from various witnesses under Section 161 of the Code of Criminal Procedure. P. W. 10 is the autopsy surgeon who had conducted post-mortem examination and submitted report.
5. The defence did not examine any witness. Appellants' stand during course of examination of witness of prosecution was of innocence, but while answering to the question put up by the Court under Section 313 of the Criminal Procedure Code (hereinafter in short Cr. P. C.) he denied having lodged any complaint or said anything to the Investigating Officer (hereinafter in short I. O.). It was also stated by him answering as before that there was tumour on the neck of his deceased daughter and it had burst, and that was the cause of the injury on her neck. In substance he suggested that he was absolutely unaware of the cause of death.
6. Mr. Mahato learned Advocate appearing for the appellant submits that the recording of conviction and the sentence by the learned Trial Judge is legally wrong and without any evidence. The prosecution has failed to prove the case beyond reasonable doubt. There has been no eyewitness, nor any proof of the appellant's involvement. According to him there is no evidence worth to implicate the appellant. There exists no circumstances from which conclusion of guilt of the appellant is to be drawn. The learned Trial Judge misapplied the provision of Section 106 of the Evidence Act to shift the burden. The defence has not taken any plea to prove the innocence so much so the burden of proving could be shifted under Section 106 of the Evidence Act.
7. He further submits that implication of the appellant on the basis of perception of sniffer dog is absolutely unacceptable, as its perception is not admissible in evidence under the law. According to him the learned Judge has proceeded on the basis of inference, instead of proof of any degree whatsoever. In support of his submission he has relied on two decisions of the Supreme Court reported in 2008 (5) SCC 680 : 2008 AIR SCW 2837 and 2008 (3) SCC page 100 : AIR 2008 SC 1095.
8. Mr. Ganguly, learned Advocate for the State respondent in support of the judgment and prosecution contends that it is an admitted position that the girl who was the daughter of the appellant died unnaturally. The post-mortem and inquest reports suggest beyond any doubt that the girl had been killed with sharp weapon. One fatal injury had been found on her neck. It is also an admitted position that on the fateful day there was none except the appellant and the victim. There has been no suggestion, not to speak of any evidence of entry or presence of any outsider before or at the time of occurrence. It is the appellant who could explain how she was injured fatally. In his written complaint lodged with police he stated some one or more unknown person had murdered, while in his answer to the question put under Section 313 of the Cr. P. C. he pleaded cause of injury was bursting of tumour on her neck. It is true that the majority of the witnesses turned hostile but their testimony cannot be brushed aside altogether. From the evidence of PW 1 and PW 2 in cross-examination it could be gathered that the deceased's character was not above board, she used to flee away from home occasionally with number of boys for immoral purpose, and he tried to rectify in vain. So the motive of the appellant for killing was putting end to this immorality. He further submits that it is surprising that after having heard Milli's groaning sound and having found the grievous cut injury he did not rush to any doctor instead he invited the neighbours and local leaders of political party and thereafter he went to Police Station under their advice to lodge complaint of murder. Therefore, if these facts and his conduct are linked together it clearly depicts and establishes unbroken chain of events which leads to the fact that it is the appellant who has killed her daughter. In support of his submission he has relied on a Division Bench judgment of this Court reported in 2006 (1) C. Cr. LR 370 on the point of evidentiary value of a hostile witness.
9. Having heard the learned Counsel for the parties and having gone through evidence and other materials on record now question is whether there has been any evidence worth to sustain the sentence of conviction and punishment of appellant. It appears to us that the learned trial Judge recorded conviction entirely on the basis of the circumstantial evidence. He is of the view that in absence of explanation that ought to have been offered by the appellant, as to how injuries were inflicted upon Milli, obviously it has to be irresistibly inferred that he alone is liable for it was his within special knowledge as contemplated in Section 106 of the Evidence Act. In the context as above it is to be examined how far circumstances is strong to bring home the charges so much so the same unbreakingly leads to one conclusion that it is none except appellant who could perform ghastly act. We find prosecution has been able to prove by the evidence of P. W. 10 namely Dr. Dey who conducted post-mortem examination, that death was due to the effect of deep cut injury on the neck just below right jaw, and the same is ante mortem and homicidal in nature. In his examination he has also disclosed in his cross-examination one incised wound 2' x 1' on vessels, larynx and trachea over right side of tipper part of the neck. Upper and inner end of the wound was 1/2' to the right of midline of front and lower and outer end of the wound was 2' to the right to midline and 3' above sternal notch 1/2' below the right angle of lower jaw and 4' x 4' above the heel. On dissection it was seen to have cut cross skin, fosa, muscles, vessels (common carotid artery and jugular vein, then cut the front portion of larynx trachea. There was another injury of 1/2' to the right of middle of front and lower. He has told in cross-examination that victim was assaulted when she was in standing or sitting condition. Therefore, in the written complaint made by the appellant himself and was signed by him before the police it is stated that the appellant had awaken hearing groaning sound and woke up from bed and he detected in the light of the lantern a deep blood wound below the jaw of the right side of her neck. He also stated in the complaint that someone or more than one person had murdered her. This statement was made by the appellant before P. W. 9 i.e. Investigating Officer. Although in his answer to question under Section 313 of the Code the accused/appellant denied any statement having been made by him. We are of the view that such later denial is an afterthought. Factura of making statement before the police is proved by the I. O. himself before whom it was made. In the cross-examination of this witness there was no suggestion that no such complaint was made by the appellant. We also notice that there was no recovery of offending weapon nor any blood stained wearing apparels from the accused. According to us, this lapse of the I. O. is not fatal to displace factum of the murder which is established by contemporaneous statement of the appellant followed by the evidence of the doctor who had held the post-mortem examination and other clinching circumstances. Hence there cannot be any conclusion other than that of murder. Under law of evidence the prosecution has to prove beyond shadow of reasonable doubt. Such proof may be either by direct evidence with the eyewitness or by circumstantial evidence. It is settled position of law that provision of Section 106 of the Evidence Act is exception to the aforesaid general rule of evidence with regard to burden. Provision of Section 106 of the Evidence Act is pressed into operation, when petitioner/plaintiff in case of civil action, prosecution in criminal action discharges onus proving fact in issue to the extent possible for them, and such proof is not enough, further evidence is needed and the same can be brought only by the adversary.
10. In this case, in our opinion, the prosecution has been able to establish and discharge its onus proving the factum of murder and it has happened in the house of the appellant when the victim was sleeping there. It is evident that the appellant himself heard groaning sound discovered bleeding on the neck with the help of the neighbours. The burden shifts upon the appellant to explain as to how this injury has been inflicted and by whom as there was none except himself in the house. He has not examined any witness to offer any explanation. Therefore, we are to see his answer given to the question under Section 313 of the Code. He said that there was a tumour on her neck and that tumour had bursted. This answer was not in written complaint earlier and we think later inconsistent statement is hardly believable. The doctor who held post-mortem examination has found cut injury. According to us the injury mark consequent upon bursting of the tumour is different from that of the cut by weapon. Evidence of doctor does not suggest injury due to bursting of tumour. Under Section 6 of Hindu Minority and Guardianship Act, 1956 an unmarried daughter remains in guardianship of her father. Father being natural guardian has obligation under the law amongst other to maintain, secure life of unmarried daughter. It is an admitted position that mother had passed away long time before unfortunate incident. During the night it was the appellant being a father to see that his daughter was absolutely secured. It is difficult to accept the plea of ignorance of the appellant about incident for which he alone could explain none else, In the evidence we find his behaviour was contrary to human nature in ordinary course of event. He invited the neighbours to help him rather than to call a doctor. He was busy to see whether a daughter was alive or not. This evidence is apparent in the oral testimony of the I. O. before whom he made complaint. Under the law of evidence the contents of a document can be proved by a person by the maker of the statement or by any person before whom such statement was made. However, truthfulness or correctness of the content can be proved by the maker alone or the same can be presumed to be true if there is no denial nor contradiction by the maker. P. W. 9 (the I.O.) has proved the same and there has been no suggestion that such statement was not made by the appellant. According to us the chain of event that took place to constitute circumstances can be summed up, is as follows:
i) On 11th October, 1997 at night there was none except the appellant and the deceased girl;
ii) At about 10 p.m. in the night they together did dine.
iii) After having dinner they went to bed. At 11/11.45 p.m. the appellant was awakened by hearing groaning sound and he got up from bed. Having heard groaning sound he went near his daughter.
iv) He found in the lantern light that her bed was full of blood and the back side of her frock too was wet with blood.
v) He then called neighbours who detected that there had been injury on her neck.
vi) In spite of this condition having been seen this condition he did not try to call doctor to save her, admittedly at that time there was sign of life.
vii) He rather went to an ex-member of the local village Panchayat and he relied on his opinion that she has been murdered.
viii) According to the advice of the leaders of local political party he informed local police camp of incident of murder.
11. We do not find any story of entry of third person. The conduct of appellant in spite of having seen serious condition of his daughter appears to be extremely unusual in view of absence of following explanation:
(i) Why the appellant did not attempt to call a doctor or turn her to Hospital in spite of having seen her sign of life to save her life.
(ii) Why did he accept the opinion of neighbours that she has been murdered.
(iii) Why did he not call a doctor to get her examined to ascertain whether she had died or not.
(iv) Why did he not try to find whether third person entered his house having found her being severely assaulted with weapon.
The appellant being a caring father and guardian should have explained under Section 106 of the Evidence Act as to how this has happened when she was in his custody in the house as it was his special knowledge. The Supreme Court in case of Sucha Singh v. State of Punjab reported in : AIR 2001 SC 1436 : 2001 Cri LJ 1734 in paragraph 19 explained scope of Section 106 as follows:
Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.
12. In the case of State of West Bengal v. Mir Mohammad Omar : AIR 2000 SC 2988 : 2000 Cri LJ 4047 the Supreme Court has accepted in certain situation the presumption is a factor for recording of conviction. In a certain situation when a particular person is unable to offer any explanation as to why murder had taken place certainly the Court will legitimately presume that he alone is responsible for this incident. (See paras 33 and 34)
13. The Supreme Court in an old case reported in AIR 1955 SC 801 has also observed where the evidence is purely circumstantial if the accused does not throw any light at all upon crucial facts which ought to be within his knowledge and which could establish his innocence the Court find him guilty after noting down his omission to adduce any explanation.
14. We are of the view that even a person who is in a position to explain why the incident had happened makes any inconsistent or unacceptable plea that may be a case of failure to discharge onus under Section 106 of the Evidence Act. A Division Bench judgment of Orissa High Court reported in : AIR 1951 Orissa 53 observed in paragraph 11 that absence of any explanation or a false explanation no doubt is a circumstance that is sometimes relied on to bring home the guilt of the accused in a case depending on the circumstantial evidence, on the ground that the facts proving his innocence must be within his special knowledge and that the burden of at least offering a reasonable explanation is on him on the principle of Section 106 of the Evidence Act.
15. Here we have already observed that appellant has not only failed to explain convincingly his innocence by his act and conduct, also he has put forward false plea of bursting of tumour and heart attack. So far as the decision of the Supreme Court cited by Mr. Mahato reported in AIR 2008 SC 697 (sic) is concerned the same is not applicable on the facts and circumstances of this case. In that case the fact was that the accused appellant was not present at the place viz. at his residence and time of occurrence rather he was in the office. It was found in the evidence the appellant accused after returning from office had discovered that death of his wife and adopted daughter and in that case the chain of circumstances and events were not so unbroken to satisfy the test laid down in the Supreme Court judgment reported in 1994 (1) SCC 116 (Sarad Prithichand Sardar v. State of Maharashtra). In that case the Hon'ble Supreme Court did not accept finding of the learned trial Judge and the High Court that the conduct of the appellant/accused in spite of having seen the death was something unusual and contrary to the nature of the ordinary prudent man and further he could not explain the cause of death. In this case we have already found so also the learned trial Judge that at the time of the occurrence except the appellant none was present in the house when the incident took place. The decision cited by Mr. Ganguly of this Court regarding acceptability of the portion of evidence of hostile witness (2006 (1) C Cr LR.(Cal) 370) is nothing new on this point as the Bench merely followed all the earlier decisions of the Supreme Court on this legal point. According to us the Court is not concerned with attitude of hostility of a witness rather trustworthiness. It is the parties concerned who are to think about the hostility as the witness comes to depose before the Court to tell the truth. Therefore, any portion of the testimony of witness declared hostile by the party calling is acceptable to the Court provided it has got relevancy in the matter. Under the law of evidence there is no unacceptability of the testimony of the witness who merely turns hostile. The Court under the law of Evidence Act is to see whether the testimony of a particular witness is believable and acceptable or not. The aforesaid observation of ours is substantially supported by all the decisions of Supreme Court cited, and relied on by the Division Bench of this Court. Here we find some portion of the evidence of some witness declared hostile is acceptable. In view of this discussion as above we are unable to accept the submission of Mr. Mahato that the learned trial Judge has wrongly and illegally convicted the appellant.
16. We are of the view that the learned trial Judge has correctly recorded the findings of guilt and came to right conclusion to convict the appellant and to pass sentence accordingly and we do not find any reason to interfere with the same. Appeal is, therefore, dismissed.
Tapan Mukherjee, J.
17. I agree.