26 May 2020


Judgments

High Court of Calcutta

Bhagirath Sarkar v. The State of West Bengal

MANU/WB/0428/2017

23.06.2017

Criminal

Minor defect in investigation on part of Investigating Officer does not take away prosecution case

Instant appeal is against judgment passed by Additional District & Sessions Judge, Fast Track 1st Court, convicting Appellant for offence punishable under Section 302 of Indian Penal Code, 1860. Accused-Appellant assailed impugned judgment, on grounds that, Judge by convicting Appellant on basis of sketchy evidence of only interested witnesses adduced by prosecution has committed grave prejudice to Appellant. Point for consideration is as to whether impugned judgment is tenable in law and in facts and whether prosecution has been able to substantiate charge against accused Appellant beyond reasonable doubt.

Section 159 of Code of Criminal Procedure, 1973 (Cr.P.C.), empowers Magistrate to hold investigation or preliminary enquiry of offence either himself or through Magistrate subordinate to him. This is designed to keep Magistrate informed of investigation so as to enable him to control investigation and if necessary to give appropriate direction. It is not that, as if every delay in sending report to Magistrate would necessarily lead to inference that, FIR has not been lodged at time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to accused is shown. State respondent submitted that, delay in forwarding FIR to Magistrate is not fatal to prosecution case as FIR is not ante-timed and ante-dated and there is no allegation of FIR being ante-timed and ante-dated. There was no submission raised before trial Court so as to doubt FIR and to brand it as embellished one. Though there may be minor defect in investigation on part of Investigating Officer but such defect as suggested by defence does not take away prosecution case.

In a decision in Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir, it has been observed that, it would be difficult in some cases to positively establish that, deceased was last seen with Accused, when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that, Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

In present case, there is positive evidence from ocular testimony of PW-2, son of deceased who has narrated having seen Accused coming to their house, knocking the door, calling his mother in dead hours of night and due to knock on door, he woke up and could recognize Accused from his voice, and Accused having held out threat with dire consequence warning him not to shout, his mother going out from house with Accused out of fear and finding his mother lying dead on verandah of house with bleeding injury on her mouth just on next day morning at dawn. Thus, evidence of PW-2 stood test of cross-examination and his testimony goes uncontroverted and is trustworthy in so far theory of last seen together of Accused with deceased applies and comes to play in instant case.

Case was instantly registered with police station giving rise to investigation which resulted in submission of charge-sheet is also a pointer to fact that, there was a narrow gap between time when deceased was seen together with Accused alive and time when deceased was found lying with injuries on verandah by her own son just on the next day morning at dawn.

Thus, Court was right in arriving at a decision that, there was close proximity of time between accused and Appellant being seen together at 2 a.m. on 17th February, 1997 and recovery of dead body in morning at 5 a.m. It was necessary for accused to have offered reasonable explanation as to what had happened to deceased with whom he had come out from the room in previous night. In absence of any reasonable explanation on part of Accused, there is only conclusion to be arrived at is that, it was Accused alone who had abducted deceased and had killed her in absence of her husband. There is no ground in present appeal to interfere into impugned judgment.

Relevant

Bodh Raj @ Bodha and Ors. v. State of Jammu and Kashmir MANU/SC/0723/2002
: AIR 2002 SC 3164

Tags : Conviction Evidence Credibility

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