Calcutta High Court (Appellete Side)
Mostafa Sk. Alias Mostu Sk. & Anr vs State Of West Bengal on 4 September, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre, Tapash Mookherjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
P R E S E N T:-
The Hon'ble Mr. Justice Nishita Mhatre
The Hon'ble Mr. Justice Tapash Mookherjee
C.R.A. 70 of 2010
Mostafa Sk. alias Mostu Sk. & Anr.
Versus
State of West Bengal
For the Appellants :- Mr. Milon Mukherjee, Advocate,
Mr. Usof Ali Dewan, Advocate,
Mr. Arup Sarkar, Advocate,
For the State :- Mr. Navanil De, Advocate.
Heard on : 24.07.2014 & 31.07.2014
Delivered on: 04.09.2014
Tapash Mookherjee J : The present appeal is directed
against the judgment and order dated 22.12.2009 and
23.12.2009 respectively passed by the learned Additional Sessions
Judge, 4th Fast Track Court at Jangipur, District Murshidabad, in
Sessions Trial No. 201/May/2009 (Sessions Case No. 07/2009). By
the aforesaid judgment learned Trial Court convicted the
Appellants Mustafa Sk. alias Mustu Sk. and Nasir Sk. alias
Nasiruddin to the charge under Section 302/34 of the Indian
Penal Code hereinafter mentioned as I.P.C. and sentenced them
to suffer life imprisonment each and also to pay fine of Rs.
5,000.00 (rupees five thousand only) I.D. to suffer further R.I. for
one year each. Learned Trial Court acquitted the Appellants of
the charge under Section 379/34 I.P.C. for want of adequate
evidence.
1. The Prosecution's case, briefly stated, is as follows:-
2. One Mahiruddin Sk. son of Oresh Ali Sk. of village Mahisasthali
under P. S. Samsargange, District Murshidabad, submitted a
written complaint at Samsergange P.S. and narrated therein that
on 23.05.1990 in the morning, while he was returning home from
Dhulian market, on the way, at about 10.00 a.m. he met his
maternal uncle Mosu Sk. who was also returning home carrying
some quantum of rice and Bidi leaves etc. on a bicycle and after
sometime someone informed Mahiruddin Sk. that Mosu Sk. had
been killed and the dead body was lying in a field. After such
information Mahiruddin searched for Mosu Sk. and found Mosu Sk.
lying seriously injured in a land by the side of a Mango Orchard
nearby and on asking Mosu Sk. reported that he had been
assaulted by Mostu alias Mustafa, Najrul Sk. Nasir Sk. and one
unknown person and within a short period thereafter Basiruddin,
the grandfather of Mahiruddin, came to the spot and within a
few minutes thereafter Mosu Sk. died on the spot. On the basis of
such written complaint by Mahiruddin Sk., Samserganj P.S. Case
No. 53/1990, dated 23.05.1990 under Section 302/34/379 I.P.C.
had been started against the Appellants and one Najrul Sk. and
after completion of investigation charge-sheet under Section
302/379/34 I.P.C. had been submitted against those accused
persons. Accused Najrul Sk. died before the commitment of the
case.
3. After commitment the case had been transferred to the Court
of learned Additional Sessions Judge, 4th Fast Track Court at
Jangipur, Murshidabad for trial. Considering the materials
collected during investigation charges under Section 302/34 and
379/34 I.P.C. had been framed against the present Appellants.
The Appellants denied the charges, pleaded their innocence
and claimed trial.
4. Prosecution examined 10 witnesses in total and proved some
documents as well, to establish their case against the Appellants.
Appellants had not tendered any evidence whatsoever.
5. Considering the evidence on record learned Trial Court found
both the Appellants guilty of the charge under Section 302/34
I.P.C. and sentenced the Appellants to suffer life imprisonment
each and to pay fine of Rs. 5,000.00 (rupees five thousand only)
each I.D. to suffer R.I. for one year more. Being aggrieved by such
judgment of conviction and order of sentence the convicts filed
this appeal.
6. Mr. Mukherjee, learned Counsel for the Appellants argued that
the contents of the F.I.R. has not been proved in the case. The
Post Mortem Report which is also a vital document in any case of
murder has not been proved and admitted in evidence
according to law. The witnesses claimed to be eye-witnesses of
the incident have not been proved to be the eye-witnesses and
there are serious anomalies in their evidence and for such reasons
the prosecution case cannot be said to have been established
beyond all doubts.
7. On the other hand Mr. De, learned Counsel for the
State/Respondent argued that the scribe of the F.I.R. was
untraceable and the doctor performing the Post Mortem Examination over the dead body was dead and for those reasons the contents of the F.I.R. and the Post Mortem Report could not be proved properly during trial. He further argued that there was the dying declaration of the victim immediately prior to the victim's death before P.W.-2 and P.W.-4 and the evidence otherwise produced by the prosecution is sufficient to prove the guilt of the Appellants and as such learned Trial Court had rightly found the Appellants guilty of the charge under Section 302/34 I.P.C. framed against them.
8. Admittedly the contents of the F.I.R. have not been proved and an endorsement on its margin by a police officer has been proved only and marked Exhibit-2. The F.I.R. maker, i. e., P.W.-1 had put his L.T.I. on the F.I.R. It is interesting to note that the F.I.R. maker, i. e., the P.W.- 1 had put his signature on his deposition sheet during trial. It is not, therefore, understandable as to why his L.T.I. instead of signature does appear in the F.I.R. During his evidence P.W.-1 stated that he forgot the name of the person who had scribed the F.I.R. Be that as it may, learned Trial Court recorded in the judgment that the scribe of the F.I.R. was untraceable and as such the contents of the F.I.R. could not be proved. But learned Trial Court failed to appreciate the legal consequence of the F.I.R. not being proved and brought on the evidence on record.
9. F.I.R. is a very vital document in any case because it discloses the first version of the prosecution and as such it is an effective check against the subsequent fabrication and falsehood. So, failure to prove the F.I.R. definitely bears serious consequence for the prosecution case. The F.I.R. in the case was submitted on 23.05.1990 but it had been placed before the Magistrate on 25.05.1990. According of Section 157 of the Criminal Procedure Code whenever any F.I.R. of any cognizable offence is submitted in the Police Station the same has to be transmitted forthwith to the Court of the nearest Magistrate having jurisdiction over the case and if there is any delay in doing so such delay has to be properly explained, otherwise there may be doubt in the prosecution version. The decision in Rebati Baidya & Ors-versus- The State of West Bengal reported in (2014) 1 CAL LT 73 (HC) a Division Bench of this Court in which one of us, Mhatre J. was a member, cited by Mr. Mukherjee, such a view has been expressed. It is true that in the aforesaid judgment it has not been held that delay in transmitting the F.I.R. before the Magistrate itself is always fatal, but it has seen held in the judgment that unexplained delay is a cause to doubt in the prosecution case. As mentioned above the delay in the present case has not been explained in any way. So, the consequence cannot be ignored.
10. The Post Mortem Report is another important evidence in any case of murder as the nature of injuries, weapon used and the cause of death is recorded in it by an expert. In the present case the Post Mortem Report has been admitted in evidence and marked Exhibit-6. It has been submitted by Mr. De, that the doctor who submitted the Post Mortem Report was dead and hence the report could not be proved by him. In the judgment of the learned Trial Court, it is noted that the report has been admitted in evidence on consent by the Defence. The Post Mortem Report had been admitted in evidence on 04.11.2009 during the examination of the I.O. But in the order No. 22 dated 04.11.2009 it is recorded that the I.O. (P.W.-10) proved the Post Mortem Report. But the I.O. (P.W.-10) during his evidence stated only that he had collected the Post Mortem Report from the Hospital during the course of his investigation. During the hearing of the appeal a question arose whether the Post Mortem Report had been admitted in evidence under Section 294 of the Criminal Procedure Code. Neither from the order sheet nor from any other material on record it is found that the procedure laid down in Section 294 of the Criminal Procedure Code had been ever followed. So, it cannot be said that the Post Mortem Report has been admitted in evidence under Section 294 Cr.P.C. In fact, it cannot be ascertained under what provision of law the Post Mortem Report has been admitted in evidence in the case. The doctor performing the Post Mortem Examination might have died before the commencement of trial, but still then the Post Mortem Report could have been legally proved by other ways calling for any competent person who knew the hand writing and signature of the doctor performing the Post Mortem Report, as a witness in the case. Similarly, opinion of another doctor on the basis of the injuries recorded in the Post Mortem Report could have been obtained by calling him as a witness. But no such attempt has been made by the prosecution during trial. Be that as it may, since the Post Mortem Report has not been proved according to law, the prosecution cannot get any help out of it to support their case. Here is also another serious failure on the part of the prosecution.
11. One Mohiruddin Sk. (P.W.-1) is the defacto complainant in the case. The victim Mosu Sk. happens to be his maternal uncle. P.W.-1 stated that on the day of the occurrence, at about 10 a.m. while he was returning to his house from Dhulian then he met his maternal uncle on the way who was also returning home in a bicycle carrying Bidi leaves, tobacco and rice and after about 10 minutes somebody reported him that his maternal uncle had been killed and the dead body was lying inside a mango orchard. P.W.-1 stated further that immediately after getting such information he rushed to the place of occurrence where he found his maternal uncle lying seriously injured and on his asking his maternal uncle stated that his maternal uncle was assaulted by the present Appellants and two others and within a very short period after saying so, his maternal uncle died. P.W.-1 stated further that in the afternoon of the very day of the occurrence he reported the incident to the local Police Station.
12. Israil Sk (P.W.-2) stated that on the day of the occurrence at about 10 a.m. while working in the field he noticed the present Appellants and two others chasing the victim and watching it he chased the Appellants, but out of fear he ultimately retreated. P.W.-2 stated further that within a few minutes after he had thus retreated, he found P.W.-1 moving towards the P.O. and on seeing P.W.-1 the Appellants fled away after which he along with P.W.-1 rushed to the victim and the victim reported to them that the victim had been assaulted by the Appellants and others. It should be noted here that P.W.-1 during his evidence had not stated that while moving towards the P.O. or after reaching the P.O. he found P.W.-2 either on the way or at the P.O. On the contrary during his cross-examination he stated that he got the news of the death of his maternal uncle 10 minutes after he had met his maternal uncle on the road and after a search for about half an hour he could trace out his maternal uncle lying in a mango orchard by the side of the road. From such statement it is clear that P.W.-1 met the victim about 40/45 minutes after the assault on the victim but as mentioned above, P.W.-2 claimed that he had chased the Appellants and thereafter he watched from a short distance the Appellants assaulting the victim and thereafter fleeing away having noticed P.W.-1 moving towards the P.O. and thereafter he and P.W.-1 together went to the victim and the victim named, the Appellants before them as the assailants. So, the versions of P.W.-1 and P.W.-2 are contradicting each other and because of such contradictions it cannot be ascertained as to who had reached the P.O. first and at what point of time after the incident of assault. In the circumstances it is difficult to accept either P.W.-1 or P.W.-2 to be the eye-witness of the incident of assaults.
13. Basiruddin Sk. (P.W.-4) was the father of the victim. He stated that on the day of the incident at about 10.10 a.m. he came to know about the incident from one Jiten after which he rushed to the P.O. and found his son lying injured. He stated further that at the P.O. his son reported that the Appellants and others had assaulted his son. But P.W.-2 categorically stated that the victim was not in a position to talk while victim's father met the victim. P.W.-2 stated during his cross-examination that he told the I.O. that within a few minutes of their arrival at the P.O. the victim died. P.W.-1 also stated that the victim died within a short period after his arrival at the P.O. In the circumstances it looks to be doubtful whether the victim was in a position to talk when P.W.-1, 2 or 4 went to the P.O.
14. Abdul Jabbar (P.W.-5) stated that sometime before the incident he met the Appellants and others on the road near the place of the occurrence and that the Appellants had arms like 'Cheni' (a mansion's instrument) and due to threatening by the Appellants he had left the place immediately and subsequently he found P.W.-1 and P.W.-6 crying at the P.O. and on being asked they told him that the Appellants had killed the victim. P.W.-5 was not also, therefore, an eye-witness of the assaults. His story of seeing the Appellants moving on the road with arms like 'Cheni' and threatening him does not attract much credence.
15. Khazir Hossain (P.W.-6) stated in his evidence that hearing a hue and cry he went to the P.O. and found the victim dead and on asking Isril (P.W.-2) reported him that the Appellants along with others had killed the victim. As mentioned earlier, it is doubtful whether P.W.-2 had witnessed the assault so, such a statement of P.W.-6 is of no serious value.
16. Ishap Sk. (P.W.-7) stated in his evidence that on the day of the incident he found the Appellants along with others chasing the victim and after watching so, he went to his house and subsequently he heard that Mosu had been killed. But during cross-examination P.W.-7 admitted that he did not tell the I.O. that he had seen the Appellants chasing the victim. Such a statement cannot, therefore, be relied on.
17. P.W.-3, 8 and 9 were not the direct witnesses of the incident in question. S.I. Sudha Ranjan Sarkar (P.W.-10) was the I.O. of the case and as such not a direct witness of the incident.
18. As discussed earlier, the F.I.R. has not been proved in the case. The Post Mortem Report has not also been proved according to law and hence the cause of the death of the victim cannot be conclusively ascertained. Moreover, there is no cogent and dependable direct evidence to link the Appellants with the incidents alleged. No chain of circumstances has also been proved in the case to prove the guilt of the Appellants. We have, therefore, no hesitation to hold that the charges brought against the Appellants have not been proved beyond reasonable doubts. Learned Trial Court had, therefore, wrongly convicted the Appellants of the charge under Section 302/34 I.P.C. The appeal is, therefore, allowed. The judgment of conviction and order of sentence passed in the case against the Appellants are set aside. The Appellants are found not guilty of the charge under Section 302/34 I.P.C. framed in the case and the Appellants are acquitted. The Appellants be set at liberty at once, if not wanted in any other case.
19. Department to take steps under Section 388, Cr.P.C.
20. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.
(Tapash Mookherjee. J) ( Nishita Mhatre. J)