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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     No.     405     of     2008      

Promode Dey                       …… Appellant

Versus

State of West Bengal                          …..  Respondent

J     U     D     G     M     E     N     T   

A.     K.     PATNAIK,     J.   

This 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).

2. The facts very briefly are that one Puspa Nandi lodged  

a complaint before the Inspector-in-charge, Kotwali

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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.

3. Manika, who was aged only eight years at the time of  

trial, was examined as PW-2 and she gave a vivid  

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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  

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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  

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his age and other related factors, sentenced him to  

rigorous imprisonment for life.

4.  The 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 deceased.

5. Learned 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  

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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 daa 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.

6. Learned 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  

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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  

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the decision of this Court in Ramappa Halappa Pujar  

& Ors. v. State of Karnataka [(2007) 13 SCC 31].

7. We 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:

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“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.       

8. Moreover, 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  

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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 incident 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.   

9. The 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  

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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.

10. We 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 of trial.  In other words,  

even if the statement of PW-2 recorded under Section  

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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.  

11. In 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  

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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.  

.……………………….J.                                                                    (A. K. Patnaik)

………………………..J.                                                                   (Swatanter  Kumar) New Delhi, March 22, 2012.    

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