Calcutta High Court (Appellete Side)
Illias Sardar & Ors vs The State Of West Bengal on 13 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 540 of 2009
Illias Sardar & Ors.
-vs-
The State of West Bengal
For Appellants : Mr. Sudipto Moitra, Sr. Adv.
Mr. Suman De
Mr. J. Basu
For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P.
Mr. Rudradipta Nandy
Heard on : 13.11.2017
Judgement on : 13.11.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 24/25th June, 2009, passed by the learned Additional Sessions Judge, Fast Track Court, VII, Alipore in Sessions Trial no. 1(2)07 corresponding to Sessions Case no. 13(1)07 convicting the appellants for commission of offence punishable under Section 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- each.
Prosecution case, as alleged, against the appellants is to the effect that on 19.05.2006 at about 8.15 a.m. Saktipada Mondal, the victim, along with Panchu Gopal Mondal (P.W 3) left their house for Baruipur. On the way, they met with Khudiram Sardar (P.W 2) and when they arrived at Shib Nagar Hospital math at about 8.30 a.m., the appellants riding on a cherry coloured motor cycle came from behind and attacked Saktipada Mondal. The appellants Illias Sardar and Raich Ali Sardar shot at him while Ibrahim Ali Sardar stabbed him with 'Daa' on the head and other parts of his body. Saktipada was severely injured and started crying for help. Other villagers rushed to the spot. Seeing the villagers, the miscreants fled away on the motorcycle. The victim was shifted to Canning hospital where he was treated by P.W 13. The victim disclosed the names of the appellants as the assailants before the doctor which was recorded in the medical papers. Subsequently he was shifted to Peerless hospital where he breathed his last. A written complaint was lodged by his son Judhisthir Mondal at the police station resulting in registration of Canning P.S Case no. 267/2006 dated 15.9.2006 under section 302/34 IPC and 25/27 of the Arms Act. In conclusion of investigation, charge sheet was filed against the appellants. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of Additional Sessions Judge, Fast Track Court, VII, Alipore. South 24 Pgs. for trial and disposal. Charges were framed under section 302/34 IPC against the appellants. The appellants pleaded not guilty and claimed to be tried.
In the course of trial, the prosecution examined 15 witnesses to establish its case and exhibited a number of documents.
The defence of the appellants was one of innocence and false implication. In conclusion of trial, the trial judge by judgment and order dated 24/25.06.2009 convicted and sentenced all the appellants, as aforesaid.
Mr. Moitra, learned senior counsel with Mr. De appearing for the appellants argued that the purported eye witnesses P.W 2, P.W 3, P.W 4 and P.W 6 are not reliable. Their evidence are not consistent with one another with regard to the incident. P.W 6 is a chance witness and the probability of his presence at the place of occurrence is also doubtful. P.W 3 was examined after three days of the incident. It is further submitted though the said eye-witnesses claimed they took the victim to the hospital their names do not transpire in the medical records. On the other hand, the persons whose names transpire in the said records have not been examined and such failure gives rise to an adverse inference against the prosecution case.
With reference to the dying declaration of the victim recorded at the hospital he submitted that there was no evidence on record that the victim was conscious and capable to make such statement. He drew our attention to the evidence of P.W 9 (doctor who treated the victim at Peerless hospital) who opined that in all probability the victim would lose consciousness due to such assault. It is also submitted that the said prosecution case is improbabilised by the contents in the inquest report where the names of the appellants do not transpire. It is also submitted that there was a land dispute between the parties as transpiring from the inquest report and, therefore, the chance of false implication of the appellants cannot be ruled out.
He strenuously argued that although it is claimed by the eye witnesses as well as in the dying declaration of the victim that the appellant nos. 1 and 2 shot at the victim, no gunshot injuries were noted in the post mortem report. Hence, the genesis of the prosecution case as narrated by the purported eye witnesses is not supported by the medical evidence. Accordingly, he prayed for acquittal of the appellants.
On the other hand, learned Public Prosecutor submitted that the version of the eye witnesses is corroborated by the dying declaration of the victim which was recorded within one hour of the incident and, therefore, there is hardly any chance of false implication. It is further submitted that the victim was taken to the hospital by the eye-witnesses along with other persons and, therefore, the names of the latter appearing in the medical report at Canning hospital does not render the prosecution improbable.
Coming to the issue of absence of gunshot injuries in the postmortem report it is submitted that the appellants came from behind on a motorcycle being variously armed and appellant Nos.1 and 2 shot at the victim while appellant no. 3 dealt severe blows on the head and various parts of the body of the victim with a 'Daa'. It is possible that the gunshot may have missed the victim but the conduct of the appellants who had come in a body with deadly weapons and had jointly attacked the victim as transpiring from the eye witnesses' version as well as the dying declaration leaves no doubt in one's mind that they shared the common intention of causing death of the victim. Accordingly, he prayed for dismissal of the appeal.
P.W.1, Judhisthir Mondal is the son and the defacto complainant in the instant case. He deposed that on 15.9.2006 at about 8.30 a.m. his father had been murdered at Shivnagar Hospital Math near the house of Arabinda Naskar. On the fateful day at 8.15 a.m. his father had left the house for Baruipur with his uncle Panchugopal Mondal, P.W.3. On the way they met P.W.2 Khudiram Sardar. When they reached Shiv Nagar Hospital Math, the appellants came from behind in a motorcycle and attacked his father. The appellant nos.1 and 2 shot at his father. Appellant no.3 assaulted him with 'Daa' on his head and different parts of the body. The appellants had also assaulted with his father with a knife on several parts of the body. His father sustained severe injuries. They raised alarm. On hearing such alarm, local villagers came to the spot. The miscreants fled away on the motorcycle. The local people took his father to the hospital. He was informed and came to the spot. Thereafter, he went to Canning Hospital. The doctor at Canning Hospital referred his father to a hospital in Calcutta. He brought to his father to Peerless Hospital and heard the entire incident from his father. His father had informed the entire incident to the doctor at Canning Hospital as well as the doctor at Peerless Hospital. He was conscious at that time.
On 15.09.2006 his father expired at Peerless Hospital. He wrote the written complaint (Ext.1). He identified the seized motorcycle. He proved his signature on the inquest report (Ext.6).
In cross-examination, he stated that he runs a grocery shop. Shivnagar Hospital Math is situated on the northern side of his grocery shop.
P.W. 2, 3, 4 and 6 are the eyewitnesses in the instant case. P.W.2, Khudiram Sardar deposed that his house is at Narayangarh which is situated about 7/8 minutes' walking distance from the house of the victim. On 15th September, 2006, he had left his house to go towards Baruipur for personal work. On the way he met P.W.1, the deceased and his brother Panchugopal Mondal. On being asked the deceased told him that they were proceeding towards Baruipur for work. Accordingly, they proceeded together. While they reached near Shivnagar College Math which is also known as Rajapur Math they heard the sound of a bike coming from behind. He saw the appellants were riding the motorcycle and appellant no.1 was driving the said motorcycle. Appellant no.1 asked him to stop. He stopped there but the victim continued to walk. Appellant no.1 brought out something and told him that they had no business with him but had business with the victim. The victim turned towards the appellant and thereafter appellant no.1 brought out a pistol and shot at the victim. Appellant no.2 also shot at the victim. Appellant nos. 2 and 3 also assaulted the victim with a knife. The appellant no.3. had a 'Daa' in his hand. The appellant nos.1 and 2 told appellant no.3 to kill the victim with the 'Daa'. As per direction of appellant nos. 1 and 2, appellant no.3 assaulted the victim. The victim suffered injuries on his neck and other parts of the body. He raised alarm. At that time, he saw Rasomoy Mondal and Kumud Acharya. Thereafter, the appellants fled away from the spot on the motorcycle. They shifted to the victim to Canning Hospital in a auto rickshaw. He narrated the incident to P.W.1, son of the victim. Doctor of Canning Hospital referred the victim to Peerless Hospital for better treatment. He identified the motorcycle i.e. W.B. 20P 7631. He identified the motorcycle (Mat Ext.I). Police seized blood stained earth and shirt from the place of occurrence and he signed on the seizure list (Ext.3). Magistrate recorded his statement under Section 164 Cr.P.C.
In cross-examination, he stated that he was going to Baruipur on a cycle. There is no auto service through the road to go to Baruipur. He did masonery work by contract at Calcutta. He is a member of Panchayet. He shifted the victim by auto.
P.W.3, Panchu Gopal Mondal is the cousin of the victim, who accompanied the victim on the fateful day from his house to Baruipur. He has corroborated the evidence of P.W.1 & 2. He also identified the motorcycle. He made statement before the Magistrate and identified his signature on the statement.
In cross-examination, he stated that he did not go to Baruipur Police Station for lodging diary. It takes 40/45 minutes to arrive at Canning Hospital from that spot by auto.
P.W.4, Kumud Acharjee is another eyewitness to the incident. He is a resident of an adjacent village. He deposed that it takes 6/7 minutes' by feet to go to the victim's house from his house. The incident took place on the road of Shivnagar Math at 8.15/8.30 A.M. At that time, he had gone out to the market and met Rasomoy Mondal, P.W.6. Both of them proceeded together and found that the victim and P.W.2 were also proceeding down the road. When they arrived at Shivnagar Math he noticed a motorcycle coming from behind and the appellants were riding the motorcycle. Thereafter, he heard 2/3 gun shots. Appellant nos.1 and 2 fired gun shots at the victim. Appellant no.3 assaulted the victim by 'Daa'. P.W.2 raised alarm. The miscreants fled away on the motorcycle. Khudiran arranged for an auto rickshaw and they took the victim to Canning Hospital. He identified the motorcycle bearing No.WB 20P 7631 (Ext. Mat. No.1). Thereafter they shifted the victim to Peerless Hospital from Canning Hospital. Police seized blood stained earth and clothes. He signed on the seizure list. He proved his signature on the seizure list (Ext.2/1). He narrated the entire incident to Magistrate.
P.W.6, Sankar Mondal is also an eyewitness to the incident. He deposed that on the fateful day in the morning he had gone in search of work. As it did not materialize, he was returning home. While he was returning he noticed that appellant nos.1 and 2 fired guns shots at the victim and appellant no.3 stabbed the victim with a 'Daa'. He raised alarm and saw the appellants fled away from the spot on a motorcycle. The number of the motorcycle is WB 20P 7631. Thereafter victim was taken to Canning Hospital and as per doctor's advice they shifted the victim to Peerless Hospital. He narrated the entire incident to the Magistrate. He signed on the statement. He along with police went to the house of accused persons and recovered two pistols, one Gupti, one motor bike two ammunitions and one 'Daa'. He signed on the seizure list.
P.W.5, Rasomoy Mondal is a post-occurrence witness. He deposed that on 15.9.2006 around 8.30/8.35 A.M. he went out from his house and proceeded down the road leading to Baruipur. Kumud Acharjee, P.W.4 was with him. On the way, he stopped to talk with some people but Kumud went ahead. On the way, he noticed a cherry coloured motorcycle parked on the road at Shivnagar Hospital Math in front of the house of Arabidnda Naskar and heard sound of 2/3 gunshots. On being altered, he noticed that Khudiram Sardar was running towards him shouting "Bachao, Bachao". Khudiram also shouted "Shakitapada is murdered". Khudiram stated that the appellants had murdered Shaktipada. Arriving there, he found that appellant no.3 was keeping the blood stained 'Daa' in a nylon bag and the appellant no.2 was keeping something like a gun in his waist. Appellant no.2 gave a blood stained 'chora' to appellant no.3 and appellant no.3 kept the same in the nylon bag. He found that Shakitapada was lying with bleeding injuries on the ground and was restless. He along with Khudiram, Kumud, Panchugopal shifted Shaktipada to Canning Hospital. He could not remember the name of other accompanying persons. He found Judhisthir, P.W.1 at the hospital. Doctor of Canning Hospital referred the victim to Calcutta Hospital for better treatment. Accordingly, the victim was shifted to Peerless Hospital.
In cross-examination, he stated that Shakitapada is his "Jethamasai". He was interrogated by police but he could not recollect the date when he was interrogated.
P.W.7, Manoj Kumar Prasad is the Judicial Magistrate, who recorded the statement of witness no.2 under Section 164 Cr.P.C.
P.W.8, Pijush Ghosh is another Judicial Magistrate, who recorded the statements of witness nos. 3, 4 and 6 under Section 164 Cr.P.C.
P.W.9, 10 & 13 are the medical witnesses.
P.W.13, Samarendra Nath Roy examined the victim at Canning Hospital on 15.9.2006 and found the following injuries:-
1) 1/2X1/2 wound over back of the chest left side at the level of 11/12 Vertebra.
2) Incised sharp cut injury over right side of neck.
3) Incised wound over right hand and right thumb.
4) Sharp cut injury over left wrist joint and left thumb.
5) Incised sharp cut injury over right side of sternum.
He stated that patient made a statement in his own speech that he was assaulted appellant nos.1 and 2 by pistol and appellant no.2 by 'Daa' at Rajapur Temporary Hospital Math near house of Arobindsa Naskar. He prepared the report and signed on the report. He proved the report (Ext.16).
In cross-examination, he stated that he did not certify in his report that the patient was in a position to speak.
P.W.9, Dr. Arnab Kumar Mukherjee was a R.M.O. at Peerless Hospital. On 15.9.2006, he examined the victim who expired in the said hospital at 1.35 P.M. After examination, he recorded the cause of death:-
Cardiac Respiratory Failure in a case of extensive deep incised wound over neck with bullet injury (to be confirmed by autopsy). He proved the death certificate (Ext.12). He stated that such type of injury may be caused by sharp cutting weapon and gun shot.
In cross-examination, he stated that according to the death certificate there was one incised wound over the neck. The measurement of the wound is not mentioned. If there is deep injury on the neck there is probability of losing sense then and there. He mentioned only bullet injury but the measurement of injury or the side of body is not mentioned. He referred it to autopsy surgeon to ascertain whether it is bullet injury or not.
Prosecution witness no. 10, namely, Dr. Debashish Sarkar was posted as Residential Medical Officer at Kolkata National Medical College & Hospital, Forensic Medicine Department at the relevant point of time. He deposed that he held the post mortem on the dead body of the victim. On examination of dead body, he found the following injuries :-
1) Stabbed wound over back of left side (0.3″ X 0.3″) situated 4″ to the left of midline of 16″ below the left shoulder joint - Mesentery bruise - spleen ruptured - heart ruptured.
2) Chopped wound over left Occipital to back of the neck = 6″ X 1.1″ X bone deep. One and half 1½″ cut fracture over the left occipital bone.
3) Chopped wound over the back of the neck to the left chin = 8″ X 4.1″ X bone deep. Muscles and Vessels of left side of neck cut.
4) 4″ X 4″ bruise over left Parietal Tempro Occipital Scalp.
5) Chopped wound over left wrist joint 1.7″ X 1.1″ X bone deep. Left thumb was missing.
6) Chopped wound over the dorsum of right hand = 5″ X 1″ X bone deep. Made fracture of tarsal meta-tarsal, fractures dislocation of middle and ring fingers of right hand. Right thumb found missing.
The prosecution witness no.10 deposed that he was of the opinion that the death of the victim was caused due to the effect of the injuries, as aforesaid.
In cross examination, the prosecution witness no. 10 stated that he did not find any bullet injury.
The prosecution witness no.11, namely, Achintya Bandopadhyay was posted as Reserve Inspector of Police in the district of South 24- Paraganas. He was the ballistic expert. He examined two improvised country made pipe guns being material exhibits II and II/1 as well as two rounds eight (8) m.m. ammunitions. He found that the arms and ammunitions examined by him were in working and live condition. He proved his report being Exhibit 14.
Prosecution witness no.12, namely, Biswanath Addya is a police officer, who was attached as Assistant Sub Inspector of Police at Canning Police Station at the relevant point of time. He deposed that he received the complaint of prosecution witness no. 1 and drew up the formal first information report being Exhibit 15.
The prosecution witness no.14, namely, Assistant Sub Inspector Sudipta Chatterjee, held inquest over the dead body of the victim at Peerless Hospital. He proved the inquest report being Exhibit-6/1.
In cross examination, the prosecution witness no. 14 stated that the witnesses told him that there was a land dispute over the property of the victim, but who murdered the victim was not disclosed to him.
Prosecution witness no.15, namely, Sub Inspector Swastik Chatterjee, was the investigating officer of this case. He deposed that he went to the place of occurrence and prepared sketch map along with index being Exhibits 17 and 17/1. He seized blood stained earth and clothes in the presence of the witnesses under a seizure list being Exhibit 2/2. He went to the Canning Hospital, but by that time the victim had been sent to Peerless Hospital. He searched for the accused persons and arrested them. He seized the arms and ammunitions as per their statements. He proved the memos of arrest of the accused persons. He seized one pipe gun from appellant no.2, namely, Roich Ali Sardar, the seizure list in connection thereto being Exhibit 9/1 bore his signature. He also seized a motor cycle bearing registration no. WB 20P 7631, one improvised country made pipe gun and a knife from appellant no.1, namely, Illius Sardar; the seizure list in connection therewith was marked as Exhibit 10/1 and bore his signature. The prosecution witness no. 15 also seized a katari from the other accused, namely, Ibrahim Ali Sardar, which has been exhibited as Exhibit 11/1. He proved the statements of the accused persons pursuant to which the seizures had been effected. The statements of the accused persons were exhibited as Exhibit 20-series. He identified the seized arms and ammunitions in court.
From the aforesaid evidence, it appears that the prosecution case essentially is founded on the version of the eye witnesses being prosecution witnesses no. 2, 3, 4 and 6 and the dying declaration of the victim being Exhibit 16 recorded by the doctor at Canning Hospital (P.W.13) on September 15, 2006 at around 9-20 a.m. The learned senior counsel appearing on behalf of the appellants has assailed both the pieces of evidence on a number of scores. He contended that the evidence of the purported eye witnesses are highly unreliable on the premise that their names do not feature in the injury report although they claimed that they had taken the victim to the hospital. It is also submitted that the presence of prosecution witness no.6 who claims to work as a mason in Kolkata, at the place of occurrence is highly improbable. It has also been submitted that the narration of the incident by the so called eye-witnesses are not consistent to one and other.
We have examined the evidence of the eye-witnesses. It must be borne in mind that natural witnesses cannot be expected depose with photogenic similarity and minor variations are bound to occur in their versions depending on their respective capacities to retain and reproduce the incident after a gap of time.
Judging their evidence from the above stand point, we find their evidence substantially corroborate the prosecution version that on the fateful day the appellants being armed with fire arms, knife and kathari had come in a cherry coloured motorcycle bearing registration no.WB 20P 7631 and had assaulted the victim at Shivnagar Hospital Math. The specific role of the appellants no. 1 and 2 in firing at the victim and that of the appellant no. 3 in assaulting the victim at vital parts of his body is also consistently narrated by the said witnesses. Thereafter all the appellants left the spot on the said motorcycle. The evidence of the eye witnesses, therefore, are substantially consistent and corroborative of the crux of the prosecution case. Minor variations in their deposition as highlighted by the defence cannot, in my opinion, to be a ground to disbelieve their version of the incident. All the witnesses are local villagers and the incident happened on a main thoroughfare at day time. They have explained the reasons as to why they were present at the place of occurrence and in our opinion such reasons do not appear to be either artificial or improbable.
That apart, the evidence of the eye-witnesses with regard to the assault on the victim by sharp cutting weapon is supported by medical evidence.
In this respect, the learned senior counsel appearing on behalf of the appellants has strenuously argued that the role of the appellants nos. 1 and 2 in firing at the victim is not supported by the autopsy surgeon (P.W.10) who did not find any gunshot injury on the deceased. It is true that there is some confusion as to whether the deceased had suffered gunshot injury or not. Although the inquest report refers to a wound with blackening, the autopsy surgeon (P.W.10), however, rules out any gunshot injury on the deceased.
We are not unmindful of the proposition if the medical evidence wholly improbabilises the ocular version of the witnesses, the benefit of doubt ought to be extended to the accused.
However, the factual matrix of the case does not portray such state of affairs. There is consistent ocular evidence that the appellants had come in a body to the spot being variously armed and the appellant nos.1 and 2 shot at the deceased while appellant no.3 had assaulted the victim with 'Daa'. It is possible that the said shots fired by appellant nos.1 and 2 may have missed the deceased and, hence, no gunshot injury was found on his body although there were a number of incised wounds which supports the murderous assault on the victim with a sharp cutting weapon like 'Daa'. In this backdrop, it cannot be said that the ocular version is wholly improbabilised by the medical evidence and the apparent contradiction is clearly explained away, as aforesaid.
The evidence of the eye witnesses is bolstered by the dying declaration of the victim being Exhibit 16 made before the prosecution witness no.13, that is, the doctor who treated him at Canning Hospital. The dying declaration has been criticised on the score that there is no certification by the doctor as to the capacity of the deceased to make such declaration and in view of the opinion of P.W.9 that there is a probability that any person suffering incised wound on the neck may lose sense then and there. We find that there is ample evidence on record to show that the victim did not lose his sense at the spot. Prosecution witness no. 5 had deposed that the victim upon being assaulted was in restless condition. That apart, prosecution witness no. 13, i.e. the doctor who recorded the dying declaration, had categorically stated that the victim had narrated the incident in his own words and the same was transcribed by him in the injury report being exhibit 16. Prosecution witness no.1 has also stated that the victim was conscious and had narrated the incident to him while in hospital. We have no reason to disbelieve the doctor (P.W.13) who had recorded the incident from the mouth of the victim within an hour of occurrence. In view of the aforesaid consistent evidence on record as to the consciousness of the deceased and his capacity to speak, we are loath to reject the dying declaration on the speculative opinion of P.W.9 which speaks of a mere possibility of loss of sense and not a certainty in all cases. Furthermore, lack of formal certification in the dying declaration (Exhibit 6) is irrelevant in view of the unequivocal evidence of P.W.13, the doctor who recorded the dying declaration that the victim had spoken in his own words which he reduced into writing. The dying declaration of the victim was recorded by P.W.13 at Canning Hospital within an hour of the incident and there is ample evidence, as discussed above, that the victim was conscious and capable of making such statement. The names of the appellants had transpired at the earliest opportunity in the dying declaration of the victim within an hour of the incident ruling out any possibility of false implication. In this backdrop, absence of names of the appellants in the inquest report which was subsequently prepared after the death of the victim loses significance. Moreover, the purpose of the inquest report is to ascertain the cause of death and failure to record the names of the accused persons or their specific roles therein would not cast any doubt on the prosecution case [see Surendra Pal & Ors. vs. State of Uttar Pradesh & Anr., (2010) 9 SCC 399 and Guiram Mondal vs. State of W.B., (2013) 15 SCC 284].
The absence of names of the eye-witnesses in the injury report (Exhibit 6) prepared at Canning Hospital also does not render the prosecution case improbable. P.W.6 stated that other persons had accompanied them when the victim was taken to the hospital in an auto. It is possible that the names of the said persons who also accompanied the witnesses with the victim to the hospital had been noted in the injury report. Hence, the absence of the names of the eye-witnesses in the injury report (Exhibit 6) does not improbabilise their presence at the place of occurrence.
The appellants had come in a body on a motorcycle and assaulted the victim on a main thoroughfare in broad daylight. While appellant nos.1 and 2 shot at the victim, appellant no.3 assaulted him with a 'Daa' on the neck and other vital parts of the body. Although appellant nos.1 and 2 may have missed their target, their shooting at the victim followed by the murderous assault on him by their compatriot, appellant no.3 with a sharp cutting weapon leave no doubt in one's mind that all the appellants shared a common intention to murder the victim. Presence of the appellants at the spot and their specific roles in the murderous assault is unerringly disclosed through the mouths of the eye-witnesses and the dying declaration of the victim (Exhibit 6). The authorities relied on behalf of the appellants, are factually distinguishable from the present case.
Reliance has been placed on Manbhula Mahato & Seven Ors. vs. State of W.B., 2016 (1) C.Cr.L.R. (Cal) 166 wherein the apex court had disbelieved the eye witnesses and, therefore, had recorded an acquittal in favour of the accused persons. Similarly, in Bijendra Bhagat vs. State of Uttarakhand, (2015) 13 SCC 99, the Apex Court on an appreciation of testimony of evidence held that the presence and involvement of the accused in the incident appeared to be doubtful. However, in this case consistent version of the eye witnesses and the dying declaration show that the appellants nos. 1 and 2 were armed with fire arms and had fired at the time of occurrence. Mere absence of gun shot injury only probabilises that the gunshots fortuitously missed the victim but cannot rule out the active role of appellants nos. 1 and 2 in the murderous assault on the victim clearly evidencing their common intention to murder of the victim.
In Pankaj vs. State of Rajasthan, JT 2016 (9) SC 93, there was clear evidence that the victim was unconscious and, therefore, the dying declaration in the absence of corroborative evidence was disbelieved. On the other hand, the evidence of P.W.13, the doctor who recorded the dying declaration of the victim as well as other corroborative evidence clearly shows that the victim was conscious and capable of speaking when he had been taken to the hospital and, therefore, the aforesaid authority cannot justify the discarding the dying declaration in this case.
In the facts of Jamat Ali Sheikh @ Mondal vs. State of W.B., (2011)1 C.Cr.LR (Cal) 679, the absence of the role of the accused persons in the inquest report was considered as relevant to record an order of acquittal.
In this case, the inquest report is preceded by a dying declaration of the victim recorded by a medical officer disclosing the roles of the accused persons. This substantial distinguishing features clearly renders the aforesaid decision inapplicable to the fact of this case.
In the light of the aforesaid discussion, we uphold the conviction and sentence of the appellants. The appeal is, thus, dismissed.
Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure.
At this juncture, we are informed that the appellant no. 1 is in the course of incarceration for more than eleven (11) years has substantially reformed himself and, in fact, is a member of the kabadi team organised by the correctional home. Although such subsequent event does not have an impact on the legality of the conviction and sentence which is upheld by us, we consider it prudent to observe that the appropriate government shall look into the aforesaid aspects in accordance with law as and when any prayer for remission and/or commutation of sentence is made by appellant no.1 in terms of Section 432 read with Section 433A of the Code of Criminal Procedure.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J) tkm/rkd/ds & PA