Calcutta High Court (Appellete Side)
State Of West Bengal vs Hannan Sk on 8 April, 2011
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
=1=
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Appellate / Revisional /Criminal Jurisdiction
Present :
THE HON'BLE MR. JUSTICE GIRISH CHANDRA GUPTA
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
GOVERNMENT APPEAL NO. 16 OF 1989
State of West Bengal
... Appellant
Vs.
1. Hannan Sk.
2. Anarul Haque
3. Abdul Khddus
4. Liakat Sk.
5. Niamuddin Sk. (since deceased)
6. Akbar Ali
7. Sanowar Ali
8. Anabul Sk.
9. Khelafat Biswas
10. Surman Ali
&
11. Nazim Biswas
... Respondents
For the Appellant / State : Ms. Minoti Gomes.
For the Respondents : Mr. Golam Mustafa
Mr. Koushik Bhatta.
Heard on : 14.1.11; 31.1.11 and 11.2.11.
Judgment on : 08.04.11.
=2=
Raghunath Ray, J. :
Prelude:
This Government Appeal is directed against the judgment and order dated 7.4.88 passed by the learned Additional Sessions Judge, 3rd Court, Murshidabad on 7.4.88 in Sessions Trial No. 2 of October, 1988 corresponding to Sessions case no. 67 of 1983 under Section 302 read with Section 34 IPC & 342/34 IPC.
By the said judgment and order, the learned Trial Judge found all the eleven accused not guilty of the charges under Section 302/149 alternatively 302/34 IPC and under Section 342 IPC. All of them were acquitted of the said charges under the provisions of Section 235 Cr.P.C. accordingly.
Facts:
2. On June 27, 1982 at about 9 P.M. when Sukur Mondal, the informant, P.W.1 was returning to his home alongwith son Jamsher Ali, since deceased, from the house of his Behai after attending a marriage invitation at Kumarpur village, they found 10/12 persons sitting on a macha in front of the house of accused Khelafat Biswas. Suddenly all of them encircled Jamsher and tied him with the ropes. Accused Hannan Sk. assaulted him on his head with a spear. Anabul struck him with a sword on his legs while Khelafat assaulted him on his arm with a spear. The rest of the accused also assaulted the victim with a lathi and other deadly weapons. The informant started shouting but he was =3= also threatened by the accused with dire consequences. He was taken to the house of Khelafat Biswas and was kept in tied condition till the morning.
Police case & Charge sheet:
3. The aforementioned incident was verbally narrated by the informant to one Bilayat Hossain, P.W. 8 who scribed the written complaint. On the basis of the said FIR, Domkol P.S. case under Sections 147/148/149/342/325/326 IPC was registered for investigation against, Barik Mondal, since deceased and six others. The case was endorsed to S.I., Joydeb Biswas for investigation. In course of investigation, the I.O. examined a good number of witnesses, prepared a rough sketch map with index of the P.O. On completion of investigation Barik Mondal since deceased and eleven respondents as named above were, however, charge- sheeted under Section 302 read with Section 34 IPC and also under Section 342/34 IPC.
Commitment:
4. On perusal of the Police Report and connected documents under Section 173 Cr.P.C., the then learned S.D.J.M. of Berhampore Sadar was satisfied prima facie that the appellants had committed offences under Sections 147/148/149/342/325/302 IPC which were exclusively triable by the learned Court of Sessions. Accordingly, the case was committed to the learned Court of Sessions, Murshidabad in terms of Section 209 Cr.P.C. vide Order dated 30.3.83.
=4= Charge:
5. On consideration of the relevant Police papers e.g. FIR, the statements of witnesses recorded under Section 161 CrPC and P.M. report etc., the learned Sessions Judge of Murshidabad opined that there were sufficient materials for framing charges under Section 302/149 IPC alternatively under Section 302/34 IPC against the accused for causing the death of Jamsher Ali. He was of further opinion that there were materials for framing further charge under Section 342/34 IPC against all of them for illegal detention of the victim's father till the next morning. All the eleven respondents as also Barik Mondal, since deceased, were, therefore, charged under Section 302/149 IPC alternatively under Section 302/34 IPC for intentionally causing the death of Jamsher Ali and also under Section 342/34 IPC for illegal detention of Sukur Mondal. All of them pleaded not guilty to the charges and claimed to be tried. Accordingly, they were put on trial to answer the following charges:
"That you, on or about the 27th day of June, 1982 at about 21.00 hrs. at Bartanabad, P. S. Domkal, District - Murshidabad, were members of an unlawful assembly and in prosecution of the common object of such assembly, viz. in assaulting Jamser Sk., one or more of you committed culpable homicide amounting to murder by intentionally causing the death of Jamser Sk. and you are thereby u/s. 149 IPC guilty of causing the said offence, punishable u/s. 302 IPC, and within my cognizance.
Alternatively - that you on or about the same date time and place in furtherance of the common intention of you all did commit culpable homicide amounting to murder by intentionally causing the death of Jamser Sk. and thereby committed an offence punishable u/s. 302 read with Sec. 34 IPC and within my cognizance.
=5= Secondly - that you on or about the same date, time and place in furtherance of the common intention of you all wrongfully confined Sukur Mondal and thereby committed an offence punishable u/s. 342 read with Sec. 34 IPC, and within my cognizance."
On his pleading not guilty to the charge, he was put on trial. Trial:
6. During trial as many as nine witnesses including the defacto-
complainant, Autopsy Surgeon and I.O. were examined and further four documents (Ext. 1, 2, 3 and 4) were exhibited to prove the guilt of respondents. The case of the defence, as is gathered from the trend of cross-examination and respondents' examination under Section 313 CrPC is that of false implication and innocence. Accused Barik Mondal expired during the pendency of trial. On consideration of the ocular evidence adduced by as many as nine witnesses coupled with medical evidence and other relevant circumstances and materials on record, the learned Trial Judge found that the prosecution had failed to prove the charges under Section 302/149 or 302/34 IPC and also the charge under Section 342/34 IPC. It was, therefore, observed by him that the accused persons must be held not guilty of the same. All the respondents were, therefore, acquitted of the charges under Section 302/149 IPC alternatively 302/34 IPC and under Section 342/34 IPC as indicated earlier.
Appeal:
7. Feeling aggrieved, the government preferred the present appeal challenging the legality and validity of the order of acquittal impugned. The =6= present appeal so far relates to respondent Niamuddin Sk., however, stood abated vide this court's order dated 3rd September, 1993.
Appellant's contention:
8. Ms. Gomes, learned counsel appearing for the State Appellant is not vociferous against the judgment impugned. Rather it is submitted by her that the appeal was, perhaps, filed out of political consideration, even though the evidence and circumstances on record do not justify filing of an appeal against the impugned order of acquittal. Her frank submission is that the assailment of order of acquittal under appeal is not warranted on proper appreciation of materials on record.
Respondents' argument:
9. Mr. Golam Mustafa, learned counsel for the respondents has pointed out various discrepancies and major contradictions in the ocular testimony of so-called eye-witnesses and, according to him, such discrepancies are so wide in nature that the presence of eyewitnesses in the scene of occurrence can very well be doubted. It is, therefore, forcefully argued by him that the prosecution has failed to bring sufficiently strong evidence on record to warrant an order of conviction against the respondents. In such a fact situation, this appellate court need not interfere with the order of acquittal under appeal.
=7= Principles governing the power of the Appellate Court while dealing with an order of acquittal:
10. Since it is an appeal against an order of acquittal, it is felt imperative to examine the scope of this appellate court in interfering with an order of acquittal in the light of principles of law laid down by the Apex Court in this regard. The principles relating to the powers of the Appellate Court while dealing with an appeal against acquittal have been enumerated by the Apex Court in Chandrappa & Ors. vs. State of Karnataka reported in 2007 Cri L J 2136 = 2007 (4) SCC 415. It is well settled that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with the appeals against acquittal. Therefore, if such an appeal is filed, it is needless to say that the High Court has full power 'to reappreciate, review and reconsider the evidence at large to reach its own conclusions on such evidence'. In such a situation, both the questions of fact and law are open to determination by the High Court in an appeal against an order of acquittal. In the afore-quoted ruling the following principles have been enunciated by the Apex Court governing the powers of appellate court while dealing with an appeal against an order of acquittal:
"(1) An appellate court has full power to review reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The code of criminal procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
=8= (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', distorted conclusions', 'glaring mistakes' etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion;
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court;
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
11. Keeping in view the aforementioned principles of law, it would be apposite to evaluate the entire evidence and circumstances on record in its proper perspective to adjudicate the issue as to whether the learned Trial Judge is justified in recording an order of acquittal. So, we are now to scan the evidence and materials on record to arrive at a just finding on the question of sustainability of the order of acquittal impugned.
Profile of witnesses:
12. The witnesses examined by the prosecution may be categorized under the following broad heads:
i) Close relation of the victim - Sukur Sk. alias Mondal, P.W.3, the defacto-
complainant is the father of the deceased and an eye-witness.
=9=
ii) Co-villagers - Azimuddin Biswas, P.W. 1, Nur Boa, P.W. 2, Amzad Ali Sk., P.W.4, an eye witness, Dardis alias Jargis Sk., P.W. 6, another eye witness and Bilayat Hossain, the scribe, P.W. 8 are co-villagers.
iii) Medical evidence - Dr. J. N. Mondal, P.W. 7, the then Medical Officer attached to Berhampore Central Hospital held the postmortem examination on the dead body of the victim.
iv) Police witnesses - a) Joydeb Biswas, P.W. 5, Sub-Inspector of Police attached to Domkol P.S. at the material point of time held inquest of the victim and b) Nirmal Kanti Das, P.W. 9 is the I.O. of the case.
v) Hostile witnesses - P.W.s 1 and 2 were declared hostile and permitted to be cross-examined by both the prosecution and defence.
Discussion:
i) A close relation:
13. Sukur Sk., P.W. 3, claiming himself an eye witness deposes that while he along with his son, Jamsher (since deceased) was returning from the house of his Behai about six years ago on 12th Ashar at about 8.45- 9.00 P.M., they were intercepted by 10-15 persons near the house of accused Khelafat. His further evidence is that Hannan Sk. struck with a ballam on the head of his son while Anabul struck him with a sword on his legs and his son fell down and at that fateful moment, Khelafat also struck him with a ballam on his hand. It also transpires from his testimony that Khelafat and Hannan tied him with a rope and detained him there in that condition. It is also available from his = 10 = evidence that Amzad, P.W. 4 and Dardis, P.W. 6 came there and requested the miscreants not to assault Jamsher but in vain. It was a moonlit night and all the accused had torches with them. His further evidence is that Surman, Monta, Barik (since deceased) and Najimuddin assaulted Jamsher with a lathi severely. Thereafter, they took him, Dardis, P.W. 6 and Amzad, P.W. 4 near the house of Khelafat and detained them there. All of them were set free in the morning. Then he reported the matter to Mastan, Bilal and Sadek Mondal and as per their advice he went to the Police Station and reported the incident there. He further proceeded to depose that by that time his son was taken to hospital and Daroga Babu also had been there to hold the inquest on the dead body of his son. After preparation of the inquest report he also put LTI thereupon.
14. This eye witness has been subjected to a rigorous cross-examination. It is elicited therefrom that he found 4/5 persons to assault his son severely with lathis and each of those persons gave 2/4 strokes with lathis on different parts of his son and finished him. He, however, makes it clear that Amzad, P.W. 4 and Dardis, P.W. 6 were not tied and assaulted but they were detained by the accused. He unequivocally denied the defence suggestion that none of the accused was involved in the murder of his son and the case in question was a got up one.
ii) Co-villagers:
15. Amzad, P.W. 4, another eye witness testifies that at about 8.30 P.M. while he was returning from Fakirabad to Bartanbad, there was moonlight = 11 = at that time and on his way he met Dardis, P.W. 6 who was returning from his father-in-law's house. He further deposes that when they were near the house of Khelafat, they found Sukur Mondal, P.W. 3 and Jamsher, the victim to proceed towards the same direction. He also found accused Barik, since deceased, to ask other persons to attack Jamsher. According to this deponent, at first Hannan Sk. struck the victim on the head with a fala (ballam) and as a result of such strike, Jamsher fell down and Anabul began to strike him on his shoulder with a sword while Khelafat struck him with fala (ballam) on his hands. His further evidence is that Nikam, Churmun, Akbar, Naimuddin, Liakat, Abdur also assaulted Jamsher with lathi at random. The deponent requested the assailants not to assault him. Instead of paying heed to his request, he was taken to the house of Khelafat Biswas and detained there. He also found Sukur Mondal, P.W. 3 lying there with his hands tied.
16. It transpires during his cross-examination that the incident took place during Ramzan period and they were released from the house of Khelafat at the time of Seheri (just before sunrise). It is reiterated that he found the accused penetrating the fala (ballam) on different parts of Jamsher. It is also clarified in his cross-examination that ballam is also known as fala. It is specifically stated by him that the assailant penetrated the weapon both horizontally and vertically. He asserts that a ballam was penetrated in the head of Jamsher. Further, the accused persons struck Jamsher 4-5 times each with a lathi and caused fracture of his bones.
= 12 =
17. Surprisingly enough, he, however, did not tell the I.O., P.W. 9 that the accused took him along with Sukur, P.W. 3 and Dardis, P.W. 6 to the house of Khelafat and detained there. He further did not tell P.W.9 that while he was returning to Bartanbad from Fakirabad he met Dardis, P.W. 6 on the way or he requested the assailants not to assault Jamsher or that he found Sukur lying with his hands and feet tied. All these important facts having direct bearing on sequence events during fateful hours of the incident thus did not figure in his statement before the I.O. On the contrary, even though the deponent stated before the I.O. that on seeing the bad condition of Jamsher, accused persons sent information to the Police Camp and short while after the incident, Camp Police came and took Jamsher to Hospital, he did not say so in his evidence before the court. Such important sayings were also denied by him during cross-examination. These omissions/contradictions of material facts by one of the eye-witnesses have rightly been highlighted by the defence before the learned Trial court.
18. Dardis alias Jargis Sk., P.W. 6 also deposes in the same line. By corroborating Sukur Mondal, P.W. 3 and Amzad, P.W. 4, it is testified by him that on the way he met Amzad about six years ago on 12th day of Ashar. As they were proceeding towards their village, they found Sukur Mondal and Jamsher in front of them. They also found that 10-12 persons were sitting on a machan in front of the house of Khelafat Biswas. According to him, Jamsher = 13 = was encircled by those persons who were sitting on the machan in front of the house of Khelafat. His further evidence is that Hannan struck on the head of Jamsher with a ballam and Jamsher fell down. Anabul assaulted him with a sword on the leg and he also poked him with sword and assaulted on the neck with sword. Barik, Najim, Abdul, Liakat, Naimuddin, Churmun etc. assaulted Jamsher with lathis and also poked on his chest with the lathis. The deponent found Sukur Mondal lying near Jamsher in tied condition. He further found Sukur Mondal requesting assailants not to assault Jamsher. He along with Amzad, P.W. 4 and Sukur, P.W. 3 was taken to the house of Khelafat. All of them were detained there and set free early in the morning. The matter was subsequently reported to Bilal, P.W. 8, Sadek and Mastan.
19. The defence has sought to obtain certain omissions which amount to contradictions on some crucial and material aspects of the alleged incident of murderous assault from his statement made before the I.O. in terms of Section 161 CrPC. Turning to I.O.'s (P.W. 9) testimony, it is found that Dardis, P.W. 6 did not even state the names of accused before the I.O. He also did not tell the I.O. specifically that Hannan assaulted Jamsher on his head with a ballam. Similarly, he also did not tell the I.O. specifically that Anabul assaulted him on the leg with a sword and poked him. He also did not tell the I.O. that Sukur Mondal requested the assailants not to assault Jamsher and that he forbade the accused persons not to assault Jamsher. The deponent also did not state = 14 = before the I.O. that he, Amzad and Sukur Mondal were released in the early morning from Ramnagar.
20. Those serious omissions certainly amount to contradiction and the same must be treated as such by this court for the simple reason that such facts are reasonably expected to be included in the statement before the Police by those two persons i.e. PWs 4 & 6 who gave narrative of what they saw. More so, whenever those facts relate to important features of the incident about which the deposition is made. There is, however, no doubt that the material elicited as contradiction by use of Section 145 of Evidence Act is not to be used as positive evidence. At any rate, such omissions amounting to contradictions proved through the I.O. serve the purpose of throwing a grave doubt on the veracity of the witnesses. Judging by that yardstick, we are of the opinion that their credibility is considerably shaken.
21. Bilayat Hossain, P.W. 8 proved the written complaint (Ext. 2). It is available from his cross-examination that he wrote the complaint at about 9-15 A.M. on 28.6.82. He denied the defence suggestion that the petition of complaint was written by him out of political pressure. However, even though he did not put his signature as a scribe on the said basic document (Ext. 2) no question was put to him by either of the sides in this regard. In this context it is also pertinent to mention that the scribe, P.W. 8 was also not examined by the I.O. in course of investigation.
= 15 =
iii) Medical Evidence:
22. Dr. J. N. Mondal, P.W. 7, deposes that on 28.6.82, he held the postmortem examination of Jamsher aged about 45 years identified by Constable No. 550 Anil Chakrabarty in connection with Domkol P.S. Case No. 10 dated 28.6.82 and found the following injuries:
"1) 3½" X ¾ X Scull, lacerated wound on the left side of the head in parietal region. On dissection a depressed fracture was seen. On further dissection left lobe of the brain found injured with blood and blood clots seen.
2) One 4" X 3" X bone grapping incised wound on the lower part and back of right leg. Muscles, vessels and bone cut.
3) One 1" X ½ X 3" punctured wound of lower third of right leg.
4) 1" X ½" X 3" punctured wound on medial part of lower third of left leg.
5) One 1" X ¼" X 3" of back of left arm punctured wound.
6) One 1" X ¼" X bone incised wound on right shoulder.
7) One 1" X 1" ecchymosis on right upper chest. On dissection right clavicle fracture in middle - upper robe of the right lung found injured with blood clots and blood in chest cavity.
Wearing apparels hand over to escorting Constable.
Death in my opinion was due to shock and haemorrhage. As a result of injury described above ante-mortem and homicide in nature.
The injury no. 1 might be caused by the back side of fala and not by sharp side. The other injuries may be caused by any sharp cutting weapons." .
23. During critical analysis of materials on record whenever medical evidence is juxtaposed with oral testimony, it is found that the victim sustained lacerated wound, incised wound, punctured wound and also different types of = 16 = other injuries on the various parts of the body e.g. on left side of the head in parietal region, various parts of the right and left leg, left arm and shoulder etc. as is evident from the Autopsy Surgeon's evidence. Such medico-legal findings find corroboration from the ocular testimony of P.W.s 3, 4 and 6 on the point of assault on head, legs, arms and shoulder of the victim. However, the eyewitnesses' oral account speaks about use of ballam, sword and lathi by the assailants whereas the autopsy surgeon, P.W. 7 suggests that the injury No. I might be caused by the back side of the fala and the other injuries may be caused by any sharp cutting weapon. Therefore, it cannot be said on the whole that the medical evidence is at variance with the ocular testimony of eye- witnesses at least in respect of the manner of assault and the nature of weapons used for causing injuries on the person of the victim.
iv) Police witnesses:
24. Joydeb Biswas, S.I. of Police, P.W.5 deposed that on 28.6.1982 he held inquest of the dead body of one Jamsher, son of Sukur of Bartanbad at the Primary Health Centre, Domkal P.S. in the presence of witnesses and prepared the inquest report. He proved the inquest report (Ext. 1). It reveals from his cross-examination that he had been to the Health Centre to hold the inquest on receipt of the information of commission of a cognizable offence as also initiation of the U.D. Case No. 10 dated 28.6.82 of the Domkal P.S. He held the inquest at 7.45 A.M. None of the assailants has been named in the inquest report although Sukur Sk. and Najufa Bibi, the wife of Jamsher were present at the time of inquest.
= 17 =
25. Nirmal Kanti Das, P.W. 9, the I.O. of the case has admitted in his cross-examination that he did not either examine any Police Personnel from the Camp or seize any record from the said Police Camp which was five km. away from the Police Station. It is also admitted by him that he did not make any endeavour to ascertain the name of the scribe and as such he could neither examine the scribe Bilayat Hossain, P.W.8 nor cite him as a witness in the Charge Sheet. It is also elicited from his cross-examination that relevant papers pertaining to U.D. case have also not been tagged with the C.D. despite his repeated attempts to procure the same. No explanation has also been offered by the I.O. as to why the Police Personnel from the Police Camp situate in the village were not examined. Even no document to ascertain their presence at the P.O. at that fateful night has also been seized by him. The I.O.'s failure to do the same also casts a serious doubt about his objectivity in conducting the investigation of this case in its proper perspective. More so, whenever evidence on record indicates that Police Personnel from the Police Camp came to the P.O. at that night and the victim with fatal wounds was transferred to the Primary Health Centre at their instance. Considering all these, we have no hesitation in opining that investigation in this case has also been conducted in a very perfunctory manner.
v) Hostile witnesses:
26. Both Azimuddin Biswas, P.W. 1 and Nur Boa, P.W. 2 hostile witnesses retracted from their earlier statement made before the I.O. for the reasons best = 18 = known to them. During cross-examination by the prosecution both of them have, however, deposed more of less in the same line. It is admitted by them that they were examined by the I.O. but they denied that it was ever told to the I.O. that as per order of accused Barik, since deceased, his brother, Hannan, Anarul, Khelafat, Ahabul assaulted Jamsher on different parts of his body. He, however, stated before the I.O. that Nikam Biswas, Chhurman Sk., Akbar Ali, Naimuddin, Liakat, Abdur Kuddus also assaulted Jamsher with lathi. It appears from their cross-examination that Jamsher, the victim was the accused in other theft and dacoity cases. According to them, when they reached the P.O., Jamsher was already dead and he informed Sukur Mondal in his house about his son's death in the next morning. During the night of incident the Police Personnel also came to the spot from the Police Camp situate in their village. According to them, no body told the name of any of the assailants to the Police in their presence either in the hospital or at the P.O. The I.O., P.W. 9 has unequivocally asserted that PWs 1 and 2 have told him that as per order of accused Barik, since deceased, Barik's brother Hannan, Anarul, Khelafat, Ahabul assaulted on different parts of the victim's body with deadly weapons while other accused also assaulted him with lathi. True it is that both the witnesses PWs 1 and 2 have denied the suggestion made by the prosecution to them that they have deposed falsely before the court to save the skin of accused persons from this criminal case. But the fact remains that they have deviated from their earlier statement made before the I.O. on material point of assault upon the victim with deadly weapons.
= 19 = Therefore, in view of such resilement it would not be safe and prudent to place reliance upon their testimony.
Analysis:
27. One of the most disturbing features in the prosecution case is that the names of eyewitnesses did not figure in the FIR and it was also not specifically stated therein that the informant was kept in tied condition along with P.W.s 4 & 6 in the house of Khelafat till the morning even though as per the deposition of P.W. 3, the informant, both P.W.s 4 & 6 witnessed the terribly violent incident of deadly assault upon the victim and all of them were kept confined in the house of accused Khelafat in tied condition till the morning. The said version of PW 3 is corroborated by other two PWs, 4 & 6. Curiously enough such important facts were not incorporated in the FIR. True, the FIR need not contain all the details and omission to specify some of the connected events of minor nature is of no significance and is also not fatal to the prosecution case. But such omission of relevant important facts in the FIR, is, of a substantive nature. To say the least the vital omission of relevant important facts in the FIR undoubtedly weakens the prosecution case.
28. Another most startling aspect is sturdy silence about the death of the victim in the FIR even though the victim succumbed to his injuries within the knowledge of the informant father, P.W. 3 prior to the lodgement of FIR. The alleged incident of gruesome assault took place at about 9.00 P.M. on 27.6.1982.
= 20 = The FIR (Ext. 2) was lodged in the following morning by the defacto-complainant, P.W. 3 himself at 9-15 A.M. Pursuant to such lodgement of FIR, P.S. Case no. 10/82 under Sections 147/148/149/342/325/326 IPC was registered against Barik Mondal since deceased and six others for rioting with deadly weapons and causing grievous hurt and willful confinement of the deceased. Really it is shocking to note that even though Joydeb Biswas, S.I. of Police, P.W.5 held inquest of the dead body of the victim in connection with U.D. Case No. 10 dated 26.6.82 at 7-45 A.M. in the presence of the informant P.W. 3 and Najifa Bibi, the wife of the deceased the FIR was lodged by the informant at 9-15 A.M., i.e. after lapse of one hour and a half from the time of preparation of inquest report of the victim, for causing grievous hurt instead of causing murder of his son. Such a situation is simply inexplicable. The confusion has been worst confounded when the defacto-complainant deposes in his examination-in-chief as under:
"...The darogababu made inquest on the dead body of my son and asked me to put LTI on the inquest report. I narrated the incident before the darogababu in the Police Station. Billal wrote something and I put my LTI on that. I cannot say what was written. "
29. It is beyond our comprehension as to why the FIR is silent about the murder of Jamsher while the same was lodged at 9-15 AM by none else but the victim's father himself who was not only present but also signed the inquest report (Ext. 1) at 7-45 AM on 28.6.1982. However, the informant being an illiterate and rustic may not have any knowledge about the contents of FIR as contended in his evidence. Such presumption is strengthened for the simple reason that FIR (Ext. 2) itself indicates that the name of the scribe does not figure = 21 = therein, and there is no endorsement to the effect that the contents of the FIR were read over and explained to the informant. The informant's illiteracy coupled with the lack of necessary endorsement by the scribe on the written complaint after scribing the same is a matter to be reckoned with. But we are unable to reconcile with the factum of registration of FIR under Sections 147/148/149/342/325/326 IPC by the Police Officer even when inquest of the victim was done by the Police much earlier in the same morning. It is absolutely a mysterious situation which remains unravelled.
30. Another most significant aspect of the prosecution case is that even though the inquest report was prepared in the presence of the victim's wife as also the father who witnessed the incident of murder prior to the registration of the FIR, the assailants were not named in the inquest report. No plausible explanation is forthcoming for such serious omission. It is also equally disturbing to note that one of the eyewitnesses, P.W. 6 even did not name any of the assailants before the Police during his examination under Section 161 Cr.P.C.
Findings:
31. It is well settled that when the learned trial court has formed an opinion after seeing demeanor of witnesses in court during trial, the appellate court should be very slow to interfere especially in case of acquittal. As a matter of fact, it is neither a rule of law nor of prudence that if the evidence of eye-
= 22 = witnesses is not consistent with the story narrated in the FIR then the evidence of such witnesses should be rejected in toto. In such circumstances, their evidence is to be considered in the context of other factors and features emerging from the relevant surrounding circumstances and convincing materials on record.
32. Had the informant along with two alleged eye-witnesses been tied with a rope and detained till morning in the house of accused Khelafat immediately after the incident of alleged murderous assault upon the victim, he could have definitely mentioned the fact in the FIR. As already indicated earlier such a vital omission in the FIR is a significant circumstance which casts suspicion about the genuineness of the prosecution case which is mainly based upon the testimony of PWs 3, 4 and 6 who claimed themselves as eye-witnesses. In fact, such omission is very much crucial as also material since it raises serious doubt about the presence of these two eye-witnesses at the place of occurrence at the relevant point of time. It is also equally surprising to note that as per I.O.'s evidence both these eye-witnesses did not tell him that both of them together with Sukur were taken to the house of Khelafat and were detained in a tied condition till the morning. P.W. 4 even did not tell the I.O. that on the date of the incident while he was returning from Fakirabad to Bartanbad, he met Dardis, P.W.6 on the way. All these circumstances taken together lead us to opine that these two witnesses who claimed to witness the incident do not inspire confidence in the mind of the court. It should be borne in mind that the = 23 = importance of FIR can hardly be denied since it is the first recorded statement of the occurrence and also the earliest information on which the investigation is commenced.
33. True, there is no requirement of law for mentioning the names of all the witnesses and the accused in the FIR. It is also not absolutely necessary that the FIR should be a detailed one and the mere omission of the names of the eye- witnesses in the FIR may not falsify their evidence. Be that as it may, the fact remains that where the FIR is lodged by an eye witness, it can reasonably be expected that it should contain full particulars and there should not be such a serious omission of a very important and material fact that the victim had already expired at that point of time when the FIR was lodged and such omission has become very much fatal to the prosecution in view of the fact that the informant himself was present as a witness and also signed the inquest report which was prepared much earlier prior to the lodging of the FIR by the father of the deceased himself, the informant, P.W. 3. In the present case, the FIR even though lodged by an eye witness, the version deposed by the informant himself and other eye-witnesses who have not been named in the FIR is materially different from the one set forth in the FIR. In our considered view, such a circumstance alone is sufficient to view the veracity of the prosecution version with suspicion.
= 24 =
34. It is well settled that the First Information Report recorded under Section 154 CrPC is not substantive piece of evidence but it can be used only to contradict the maker thereof under Section 145 of the Evidence Act and also for corroborating his evidence under Section 157 of the Act and also to show that implication of the accused was not an afterthought. It is, therefore, undoubtedly, a valuable piece of evidence. However, in the instant case only seven persons have been named as accused in the FIR by the informant who happens to be an eye witness, even though, the relevant charge sheet was filed against as many as 12 persons. Further, P.W. 3 in his evidence before the Court did not corroborate the contents of FIR on several material points. Rather major contradictions are apparent within the four corners of his testimony as pointed out in preceding paragraphs. The informant's testimony has thoroughly been discredited and the contents of the FIR have thus been used to discredit the testimony of its author, the informant.
35. At any rate, it cannot also be over looked that the learned trial court has referred to several serious unexplained circumstances and refrained from placing much reliance upon these so-called eye-witnesses. Accordingly, he has held inter alia as under:
"...Considering the above circumstances and evidence I hold that the evidence of the PWs 3, 4 and 6 as regards the alleged assault on Jamsher and their detention by the accused persons at the alleged time and place cannot be accepted as true."
= 25 =
36. The learned Trial Judge was also equally annoyed perceiving the manner in which the case was conducted by the prosecution since the very commencement of the trial and judgment was concluded with the following observation:
"...Lastly it must be noted here that the prosecution was all along reluctant to conduct the prosecution of this case for any reason best known to it and this court had to labour hard to procure the attendance of the witnesses practically against the will of the prosecution and as a result this trial could be concluded after the eighth programme during a span of about three years which will be evident from the order sheet specially those from 8.3.88 onwards. The matter was brought to the notice of the District Magistrate, Murshidabad. "
In fact, on proper application of judicial mind, the learned trial court rightly took into account initial inhibition of the prosecution in eliciting the truth from eye-witnesses cited in the charge sheet and took stringent measures accordingly to compel their attendance for ensuring just adjudication of the Sessions Trial.
37. Against such backdrop of factual scenario coupled with the settled principles to be observed in reversing the order of acquittal, we are of the view that the evidence of so-called eye-witnesses has rightly been rejected by the learned trial court which had also the advantage of watching their demeanour. In fact, the vital contradictions in the evidence of eye-witnesses of PWs 3, 4 and 6 as analysed by the learned court with utmost circumspection lead us to opine that the presence of eye-witnesses at the place of occurrence at the relevant point of time was doubtful and the learned court below has correctly disbelieved their = 26 = evidence. In our considered view, those three eye-witnesses i.e. PWs 3, 4 and 6 faltered in their evidence and contradicted each other on the material particulars regarding the mode and manner of assault upon the victim. Therefore, whenever the learned trial court has come to a particular finding by refusing to believe the entire incident and has found that true picture of the circumstances resulting in the death of Jamsher was not presented before the court, it would not be prudent for this appellate court to disturb such findings of the learned court below solely on the basis of the inconsistent evidence of the deceased's father who appears to be not a wholly reliable witness on meticulous dissection of his testimony. Therefore, the ultimate finding of the learned trial court cannot be said to be perverse one. It is well settled that if two reasonable conclusions are possible upon assessment of evidence and evaluation of proved facts, the appellants in a case of appeal against acquittal are entitled to the benefit of doubt.
38. In this context we would like to refer to the recent decisions of the Hon'ble Apex Court reported in 2009 (7) Supreme 231 (Md. Ankoos vs. The Public Prosecutor, High Court of A.P.) and 2008 (10) SCC 450 (Ghurey Lal vs. State of U.P.) wherein the power of the Appellate Court has been outlined while hearing an Appeal against an order of acquittal. In fact, unless the order of acquittal is perverse or suffers from any manifest illegality the same should not be disturbed when two views are possible, the one which enures to the benefit of the accused should always be accepted [vide 2009 (3) SCC 749 (Luna Ram vs. = 27 = Bhupat Singh), 2003 (1) SCC 761 (Sailendra Pratap vs. State of U.P.) and (2004) 9 SCC 310 (State of U.P. vs. Ram Bahadur Singh)].
39. As already discussed earlier, the learned court below has taken into consideration the entire evidence and surrounding circumstances on record in its proper perspective and has rightly come to the conclusion that the prosecution has failed to prove the charges under Section 302/149 alternatively 304/34 IPC and the charge under Section 342/34 IPC against the respondents. We have done similar exercise by scrutinizing the evidence both oral and documentary in the light of yardsticks propounded in the judicial pronouncements and by no stretch of imagination it can be held that the order of acquittal passed by the learned trial Judge is perverse and patently illegal suffering from glaring inconsistencies. Importantly, a presumption of innocence subsists even at the stage of appeal for the simple reason that presumption of innocence has further been fortified by the order of acquittal and as such the same cannot be disturbed unless the State appellant is in a position to show compelling and substantial reasons for such interference. There is also nothing on record to indicate that the learned trial court had missed the evidence on material particulars which ought to have been taken into account which could have been rendered the entire finding to a different nature. It can, therefore, be safely concluded that the well established criteria for not sustaining the order of acquittal in the appeal had not been satisfied in the present case.
= 28 = Conclusion:
40. Having regard to the evidence and circumstances on record and weighing them in the scale of probabilities, we are unable to persuade ourselves to opine that the learned court below is not justified in recording an order of acquittal. We have, accordingly, arrived at a conclusion on the basis of the evidence on record that the respondents are entitled to get the benefit of doubt. Therefore, the judgment and order of acquittal impugned is sustainable and it does not need any interference from this appellate court.
Result:
41. Accordingly, the instant appeal preferred by the State stands dismissed.
Direction:
42. The respondents are discharged from their respective bail bonds. The Department is directed to send down the Lower Court Records along with a copy of this judgment to the learned court below forthwith.
I agree. (Girish Chandra Gupta, J.)
.
(Raghunath Ray, J.)