Calcutta High Court (Appellete Side)
Rafique Sk. And Others vs State Of West Bengal on 17 July, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
AND
The Hon'ble Justice Manojit Mandal
CRA No.203 of 2016
RAFIQUE SK. AND OTHERS
. . .APPELLANTS
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant : Mr. Himangshu De, Sr. Adv.
Mr. Swapan Kumar Mallick, Adv.
Mr. Kazi M. Rahman, Adv.
Ms. Sudeshna Das, Adv.
Ms. Ishita Biswas, Adv.
For the State/Respondent : Mr. Madhusudan Sur, A.P.P.
Mr. Rudradipta Nandi, Adv.
Heard on : 17.7.2019.
Judgment on : 17.7.2019
Joymalya Bagchi, J.:
Appeal is directed against the judgment and order dated 12.3.2013 and 14.3.2013 passed by the learned Additional District & Sessions Judge, Fast Track 3rd Court, Jangipur, Murshidabad, in S.T. No.1/March/08 corresponding to S.SL. Case No.19/08 convicting the appellants, namely, Rafique Sk., Kangali Sk., Bishu Sk., Jiaur Rahman @ Jiabul Sk., Sonsulla Sk., Ramjan Sk. and Yunus Sk. for commission of offence punishable under Sections 302/34 of the Indian Penal Code (for short 'I.P.C.') and sentencing them to suffer imprisonment for life and to pay a fine of Rs.10,000/- each, in default, to suffer rigorous imprisonment for a further period of one year.
The prosecution case, as alleged against the appellants, is to the effect that one Kabirul Sk. (P.W.9) had paid some money to appellant No.1, Rafique Sk., appellant No.7, Yunus Sk. and one Manik Sk. for purchasing four bighas of land from Lalu Sarkar. After his father's demise, Kabirul proposed to purchase only one bigha out of four bighas of land and demanded return of the remainder sum. Over this issue, a dispute arose between Kabirul Sk. on the one hand and Rafique Sk., Yunus Sk. and others on the other hand. Mamed Sk. (the deceased), uncle of Kabirul sought to intervene and compromise the matter. On 31.3.1999 at about 07.30 a.m. the appellant No.7, Yunus Sk., was proceeding towards the bank of the river. As he came in front of the house of Kabirul, Kabirul demanded land or money from him. An altercation ensued between them. Mamed was standing beside Kabirul. At that time, the appellants who were variously armed attacked them. Yunus fired from pipe gun at Mamed. Pintu hurled bomb aiming at Mamed. Kabirul tried to save Mamed and received bomb injury on his hand. Mamed suffered deep injuries on his body and expired at the spot. Kabirul was admitted at Jangipur S.D. Hospital. Mofijul Sk. (P.W.1), son of the deceased Mamed Sk., lodged written complaint resulting in registration of Raghunath Ganj P.S. case No.73/99 dated 31.03.99 under sections 302/326/34 I.P.C., under sections 3/4 of the Explosive Substance Act and under sections 25/27 of the Arms Act.
In conclusion of investigation, charge-sheet was filed against the accused persons and the case was committed to the court of sessions and transferred to the Court of learned Additional District & Sessions Judge, Fast Track 3rd Court, Jangipur, Murshidabad, for trial and disposal.
Charges were framed against the accused persons under section 302/34 I.P.C., under section 307/34 I.P.C. and under section 286/34 I.P.C.
In the course of trial, prosecution examined nineteen witnesses and exhibited a number of documents.
Defence of the appellants is one of innocence and false implication in the instant case. It was the specific defence of the appellants that in the course of altercation a bomb carried by Kabirul had burst causing injury on his hand and death of Mamed.
In the course of trial, co-accused Pintu Sk. expired.
In conclusion of trial, the trial judge by the impugned judgment and order convicted and sentenced the appellants, as aforesaid. No finding was, however, recorded with regard to other charges framed under section 307/34 I.P.C. and section 286/34 I.P.C.
Hence, the present appeal.
Mr. De learned senior counsel and Mr. Mallick learned counsel appearing for the appellants argued that the genesis of the prosecution case is fraught with contradictions and has not been proved beyond doubt. While P.W.s 1, 3 and 9 claimed that Mamed died due to firing by appellant No.7, Yunus and bomb thrown by appellant No.1, Rafique, P.W.s 12, 13 and 16 deposed that bomb was thrown by Kabirul which had hit Mamed resulting in his death. P.W.s 12, 13 and 16, however, have not been declared hostile and the prosecution which is a divided house cannot be relied upon. That apart, role of appellant No.1, Rafique is not disclosed in the First Information Report (in short 'F.I.R.'). Investigation in the instant case was conducted in a perfunctory manner. Accordingly, the appellants are entitled to the benefit of doubt.
On the other hand, Mr. Sur, learned Additional Public Prosecutor with Mr. Nandi learned counsel appearing on behalf of State submitted that P.W.9 is an injured eye-witness. He suffered bomb blast injury at the spot and was treated by P.W.11 in the hospital. P.W.9 categorically disclosed the roles of the appellants in the murderous assault on his uncle Mamed Sk. and upon himself. Version of P.W.9 is corroborated by P.W.s 1 and 3. Evidence of P.W.s 12, 13 and 16 are woefully vague and the said witnesses could not even state the date of the alleged incident. They appear to be reported witnesses and there is nothing to show that they were not present at the spot. Hence, little importance ought to be attributed to their evidence and the prosecution case well founded on the version of the injured witnesses corroborated by medical evidence is proved beyond doubt. Accordingly, the appeal is liable to be dismissed.
From the rival submissions of the parties, it appears P.W.9 is the star witness for the prosecution. He is the nephew of the deceased Mamed Sk. He deposed nine years ago at 07.30 a.m. he confronted Yunus Sk. at Kalabagh Natunpara and told him to give account of their property. An altercation ensued. At that time Pintu and Rafique came towards them with bombs in their hands. Mamed Sk. was standing at the spot. Rafique hurled bomb at Mamed. Yunus fired from his pipe gun at the victim. Pintu hurled bomb which hit the palm of his right hand. He received bleeding injury. Other accused persons, namely, Kangali Sk. Rintu Sk., Ramjan Sk. Sanaullah Sk. and Jiabul Sk. came to the spot being armed with hesso, kaati and shabol. He lost his senses. He was taken to Jangipur S.D. hospital. He was treated for three days. Mamed died at the spot owing to injuries. P.W.9 was extensively cross-examined but remained unshaken.
His evidence is supported by P.W.1, Mofijul Sk. son of the deceased and de facto complainant in the instant case. He deposed that Pintu Sk. threw a bomb at his cousin Kabirul resulting in injury on his right hand. Yunus fired from his pipe gun at his father and Rafique and Yunus threw bombs at his father. His father suffered injuries and died at the spot. He lodged written complaint at the police station. It was scribed by Nejam Sk. (P.W.2). He proved his signature. His father was taken to Jangipur S.D. Hospital where he was declared dead. Kabirul was also treated at that hospital.
Evidence of P.W.1 has been criticised on the premise that he did not disclose the specific role of Rafique Sk. in the F.I.R. No contradiction to that effect has been taken from the said witness in Court. Even otherwise, I note that the presence of Rafique Sk. with arms is disclosed in the F.I.R. Incident occurred in the course of an altercation where near relations of P.W.1 had been assaulted. Hence, it is possible that P.W.1 was unable to specifically spell out the role of each and every accused in F.I.R. which had been lodged soon after the incident. However, in Court the said witness has specifically narrated the role of Rafique Sk. in the assault which finds resonance from the deposition of the injured witness P.W.9, Kabirul.
Evidence of aforesaid witnesses are corroborated by Hameda Bewa (P.W.3), sister of the deceased and mother of P.W.9, Kabirul Sk. Learned senior counsel for the appellants criticised her evidence drawing the attention of this Court to her previous statement recorded by police as appearing from cross-examination of I.O. (P.W.18). I have perused the said deposition wherefrom it appears that the witness did not narrate to I.O that due to panic she could not identify the people assembled at the place of occurrence. Reading the evidence of P.W.3 as a whole I am of the view that failure on the part of the said witness to narrate the name of other persons present at the place of occurrence has little relevance to her identifying the miscreants who assaulted her brother and son resulting in grievous injury on one and death of the other. It is all but natural that the witness could recollect the identity of the persons who played a vital role in the assault of the victims and failed to notice out of trauma the presence of others at the spot.
Eye-witnesses' version find corroboration from the medical evidence of Dr. Ashmuddin Biswas (P.W.11) who treated Kabirul Sk. (P.W.9) and deposed that he had suffered lacerated bomb injuries on right hand, right wrist and lower part of right forearm. Post-mortem report (Exbt.4) also shows lacerated injuries on the deceased Mamed Sk. corroborating the ocular version of the aforesaid witnesses.
It has been strenuously argued that no gunshot injury was found on the victim. In view of the extensive lacerated bomb injuries found on the body of the victim it is possible that gunshot injury was not detected by post-mortem doctor. Even for argument's sake, the bullet fired by appellant No.7, Yunus, had missed the target, his conduct in participating in the assault by firing at the victim from a pipe gun clearly exposes his common intention to murder the victim.
In the face of the aforesaid cogent and convincing evidence of eye-witnesses including the injured witness, I find no reason to dislodge the prosecution case on the basis of scant and unreliable evidence of P.W.s 12, 13 and 16. The said witnesses made cryptic statements in Court that Kabirul threw a bomb at his uncle, Mamed Sk. resulting in injuries. The witnesses were unable to state the date on which the incident occurred and upon reading their evidence as a whole I do not find any convincing material on record to show that they were at all present at the place of occurrence. Hence, the said witnesses appear to be reported witnesses who made a desperate effort to screen the real offenders. It is true these witnesses ought to have been declared hostile by the prosecution but the prosecutor for the reason best known to him had not done so. Such remissness on the part of the prosecution cannot aid the facile defence of the appellants. Failure to declare a prosecution witness hostile, in my considered opinion, would not contribute additional credibility to his version than what is otherwise incredulous and untrustworthy. Judging the evidence of the aforesaid witnesses from that perspective, I find no reason to attach credence to their versions so as to discredit the convincing evidence of the injured witness and other eye-witnesses in the instant case. Versions of P.W.s 12, 13 and 16 are most incredulous as no motive is forthcoming why Kabirul would throw a bomb at his own uncle, Mamed, as claimed by these witnesses. Furthermore, their versions also appear to be at variance to the suggestion given by the defence to the investigating officers that in the course of the milieu a bomb carried by Kabirul had accidentally burst causing injuries to himself and Mamed Sk. resulting in his death. No suggestion was ever given by the defence to the investigating officers that Kabirul had hurled bomb towards Mamed Sk. as claimed by the aforesaid witnesses.
Finally, it is argued on behalf of the appellants that there are defects in investigation which has prejudiced the prosecution case. I am unable to subscribe to such view. Defects in investigation are minor and do not affect the merits of the prosecution case which is based on eye-witnesses' version that is corroborated by medical evidence.
In the light of the aforesaid discussion, I am constrained to hold that version of P.W.s 12, 13 and 16 who do not appear to be eye-witnesses are wholly untrustworthy and cannot create a dent in the prosecution case which is firmly established by the injured witness and medical evidence on record.
From the aforesaid analysis, I am of the opinion that appellant No.1, Rafique Sk., appellant no.7, Yunus Sk. and Pintu Sk. (deceased accused) shared common intention to murder the victim Mamed Sk. and pursuant to such common intention to murder Mamed Sk. and pursuant thereto Yunus Sk. fired at him and Rafique Sk. and Pintu Sk. hurled bombs resulting not only in fatal injuries on the deceased Mamed Sk. but also grievous injuries on Kabirul. Sk. (P.W.9). In addition to recording conviction under section 302/34 IPC, trial Court ought to have recorded a finding with regard to other charges framed against the appellants. However, such remissness on the part of the trial Court does not affect the legality of the conviction recorded under section 302/34 IPC so far as appellant no.1, Rafique Sk. and appellant no.7, Yunus Sk. are concerned.
However, in view of the scanty and non-specific evidence vis-à-vis the roles of others appellants, namely, appellant No.2, Kangali Sk., appellant No.3, Bishu Sk., appellant No.4, Jiaur Rahman @ Jiabul Sk., appellant No.5, Sonsulla Sk. and appellant No.6, Ramjan Sk. and since they did not participate in the assault of the victims at all, I find it difficult to sustain their conviction under sections 302/34 I.P.C.
Accordingly, conviction and sentence of appellant No.1, Rafique Sk. and appellant No.7, Yunus Sk. are upheld.
Conviction and sentence of appellant Nos.2 to 6 are set aside.
Period of detention, if any, undergone by the appellant Nos.1 and 7 during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure.
The bail bonds of appellant Nos.2 to 6 shall continue for a period of six months in terms of section 437A Criminal Procedure Code and thereafter shall stand discharged.
Hence, the appeal is partly allowed.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the parties within a week from the date of putting in the requisites.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)