No Adverse Inference Can Be Drawn Against Prosecution For Not Examining A Vulnerable Witness In Control & Custody Of Accused : Calcutta High Court

The Calcutta High Court has recently held that non-examination of a minor child who was in the control and custody of an accused would not adversely affect the prosecution's case as it is natural for her to be subjected to undue influence or tutoring by the accused. 

In the instant case, the appellant had been convicted of murdering his wife and their 5 year old minor child was deemed to be a vital witness. It was alleged by the defence that non-examination of the minor child by the prosecution casts an adverse inference on the prosecution's case. 

Rejecting such a contention, a Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, 

"It is trite law a child is ordinarily prone to tutoring. When a minor witness was in the control and custody of an accused it is all but natural that she would be subjected to undue influence and/or tutoring by the accused and, therefore, the prosecution may consider it unsafe to examine her. It is for the prosecution chose its own witnesses to prove the case"

The Court further noted that the minor child of the couple was barely five years old when the incident occurred. It was also noted that the minor child had been in the control and custody of the appellant after the incident. 

Opining further that non-examination of a vulnerable witness would not draw an adverse inference, the Court further stated, 

"If circumstances in a case like the present one give rise to an impression that a vulnerable witness is under the malefic influence of an accused, it would give sufficient justification to the prosecution not to examine her. Such course should not cast an adverse influence on its case."

The Bench further noted that analysis of the defence evidence reveals that it was the appellant who wanted to examine his daughter to prove she had told him that the deceased had asked her to go out of the room and closed the door from inside. 

However, the defence later had refrained from examining the minor child after the plea of suicidal hanging had been wholly discredited by the medical evidence on record, the Court noted further. 

Opining that such non-examination of minor 'creates a gaping hole' in the defence case, the Court remarked further, 

"Under such circumstances, putting the minor on the dock, would see the risk of her breaking down under the pressure of cross-examination and divulging the truthfulness eroding the defence case. Hence, non-examination of the minor instead of adversely affecting the prosecution case creates a gaping hole in the unfolding of the defence case version of suicidal hanging."

Background

In the instant case, the appellant had been convicted for the commission of offence punishable under Section 498A (cruelty) and Section 302 (murder) of the IPC. Subsequently, he had been sentenced to suffer imprisonment for three years and pay a fine of Rs.5,000 and in default to suffer imprisonment for one year for the offence punishable under Sections 498A of the IPC. On the other hand, he was sentenced to suffer imprisonment for life and pay a fine of Rs.10,000 and in default to suffer further imprisonment for one year more for the offence punishable under Section 302 of the IPC. 

The appellant had subjected the deceased to torture during the course of their marriage due to which the deceased had withdrawn from the company of the appellant and divorce proceeding had also been instituted by the latter. On the intervention of the Court, matter was reconciled and the couple reunited. A child was born to them but the appellant had continued to inflict torture upon the deceased.

On August 30, 2007, the appellant had gone to the residence of one of the brothers of the deceased and had demanded Rs 50,000. On that very day, at 8am the deceased had made a phone call to her brother requesting him to take away her away as she feared for her life. Consequently, the deceased's brother rushed to her matrimonial home where he found the deceased lying on the floor with a swelling on her head. 

Observations 

The Court noted that the post mortem report showed various ligature mark over the neck of the deceased and had further concluded that the death was homicidal in nature. Accordingly, the Court dismissed the defence's plea of death by suicide and further observed that the false plea with regards to the cause of death of the victim is an additional link in the chain of circumstances pointing to the guilt of the appellant. 

Opining further on the post occurrence conduct of the appellant, the Court noted that the appellant had the exclusive knowledge of how to come out of the locked room through a surreptitious alternate route without breaking the lock. It was thus observed that by no stretch of imagination could such knowledge be attributed to any third party or outsider. It was the appellant alone who could have come out of the locked room through this unconventional route after murdering his wife and hanging her body from the ceiling, the Court stated further. 

It was further noted that thereafter the appellant had gone to his grocery shop which was adjacent to his house to create an impression that he was not in the house at the time of occurrence. The Court further observed that only when hue and cry was raised, he had come down to the spot and brought down the body to pass off the murder as one of suicide.

"These circumstances have been duly proved and unerringly point to the guilt of the appellant and ruled out any probable hypothesis of guilt. Thus, the prosecution case has been proved against the appellant beyond doubt", the Court ruled. 

Accordingly, the Court upheld the conviction of the appellant and the life sentence imposed. 

Case Title: Ashoke Ghosh v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 57

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