Calcutta High Court (Appellete Side)
Joynal Mirdha @ Joynal Mirdda vs The State Of West Bengal on 21 February, 2014
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Criminal Appellate Jurisdiction
Present:
The Hon'ble Mr.Justice Jayanta Kumar Biswas
and
The Hon'ble Mr.Justice Dr. Mrinal Kanti Chaudhuri
CRA No. 580 of 2008
Joynal Mirdha @ Joynal Mirdda
v.
The State of West Bengal
Mr. Sandipan Ganguly, advocate, with Mr. Ranadeb Sengupta and Mr. Rajiv
Lochan Chakraborty, advocates, for the appellant. Mr. Prasun Dutta, advocate,
with Mr. Subrata Roy, advocate, for the State.
Heard on : November 18, 25 & 26, 2013
Judgement on: February 21, 2014
Jayanta Kumar Biswas, J:- The appellant is aggrieved by a judgement of
the Additional Sessions Judge, 1st Court, Barasat, North 24-Parganas dated
August 16, 2008 in Sessions Trial No.1(7) of 2003 convicting him of an offence
under s.302 IPC, and an order of the judge dated August 18, 2008 sentencing
him.
The sentencing part of the order dated August 18, 2008 is quoted below:-
"...that the accd. Joynal Mirdha is convicted U/S 235(2) Cr.P.C. for the guilty of offence
U/S 302 of the Indian Penal Code and shall undergo imprisonment for life and shall also pay a
fine of Rs.10,000/-, in default to suffer R.I. for another two years. If the amount of fine is realised,
the same may be given to Smt. Polly Mondal (PW-2) by way of compensation."
The FIR No.242 of 2000 was registered at Rajarhat police station in
Barasat sub-division of the district North-24 Parganas on November 12, 2000 at
10.05 p.m. It was registered under s.325 IPC on receipt of a written information
from one Biren Kumar Mondal dated November 12, 2000 addressed to the officer
in charge of the police station, and the appellant was named as the sole accused.
In his written information Biren stated as follows. On November 12, 2000,
like other days, his elder brother Manik was on morning walk. When Manik
reached the Ajadnagar metalled road, the appellant and two other unknown
persons hit Manik on his head with wooden spade handle. Two-three passers-by
brought injured Manik home in a private car. Manik was taken to Primary Health
Centre, then to RGKar Hospital and then to PG Hospital. Manik was working in
Gitashree Cinema Hall and did not permit the appellant producing a pass to
watch a just released movie on November 10, 2000. For that grudge the appellant
getting Manik alone attacked him. Manik was fighting for his life.
Considering a report of the investigating officer dated November 13, 2000
that Manik died on the night of November 12, 2000, the magistrate passed an
order dated November 18, 2000 allowing addition of s.304 IPC. The appellant
surrendered before the magistrate on January 3, 2001. The court of session
granted him bail on April 4, 2001. The officer submitted a charge-sheet dated
April 5, 2001 against the appellant under ss.325/304 IPC on April 16, 2001. The
court of session took cognizance on April 24, 2002 and framed charge under
s.302 on July 3, 2003. The appellant pleaded not guilty and claimed to be tried.
Between December 17, 2007 and July 16, 2008 the judge took down
evidence of the following prosecution witnesses:- PW1-Biren Mondal, the de facto
complainant; PW2-Polly Mondal, Manik's wife; PW3-Swapan Mondal, a brother of
Manik; PW4-Somnath Mondal, a nephew of Manik; PW5-Bablu Sardar, one
passer-by taking injured Manik home from the scene of the crime; PW6-Atiar
Mondal, the other passer-by taking injured Manik home; PW7-the doctor doing
the post-mortem on Manik; and PW8-the investigating officer.
The prosecution exhibited the following documents:- Ex1-the written
information treated as FIR; Ex2-the post-mortem report; Ex3-the chemical
examiner's report; Ex4-the formal FIR; Ex5-the rough sketch map of the scene of
the crime; Ex6-the appellant's disclosure statement; Ex7-the seizure list showing
recovery of the offence weapon; Ex8-Manik's death certificate; Ex9-the injury
report.
Relevant part of examination-in-chief of PW1, Biren, is quoted below:-
"I am a resident of KajialPara under P.S. Rajarhat. Manik Mondal, my elder-
brother, is no more. Regarding his death I have lodged a written complaint with Rajarhat
P.S. The written complaint was written by Chandicharan Mondal, a Panchayet member of
our locality. It bears my signature. I know its contents (the written complaint be marked
as Exbt-1 on proof)."
Relevant part of cross-examination of PW1 is quoted below:-
"My deceased brother and myself were living in separate houses and the distance
between the same would be about 5 minutes on walk. I was available in the home at the
time of occurrence as such I did not see the happening."
Examination-in-chief of PW2, Polly, Manik's wife, is quoted below:-
"I have been living at Kajial Para under Rajarhat P.S. Manik Mondal, my husband,
is no more. My husband was an employee of Geetashree Cinema Hall. On 12.11.2000 on
Sunday like other days my husband went out side for morning walk. Between 6/6.30
A.M. after some time of departure of my husband one Taxi came and stood in front of
our house. I rushed towards the Taxi and I found my husband in side the taxi who some
how could tell me that he was subjected to assault by someone named Joinal. The
persons who brought my husband with the Taxi told me that they found my husband
lying on the road with injuries on his person at Raigachi. Over the issuance of Pass of a
newly released Film in the Cinema Hall an altercation took place between my husband
and Joinal. From my house my husband was taken to Reckjoyani Hospital for his
treatment. The said hospital referred my husband to R.G. Kar Medical College and
Hospital at Kolkata and therefrom to S.S.K.M. Hospital. At about 9 P.M. my husband
succumbed to those injuries. I do not know the accd. persons."
Cross-examination of PW2 is quoted below:-
"It is true that what I have stated in the court yesterday, I did not state the same
earlier anywhere. I am failed to recollect whether I was interrogated by the police. I have
not stated to the police that over the issuance of Pass in the Cinema Hall a dispute took
place between my husband and the accused. I did not see the occurrence. Not a fact that
when my husband was brought to home, he was senseless. Not a fact that alleged
incident did not take place in the manner which I have stated in the court on the
relevant date and time. Not a fact that the accused had no role in the injury or the death
of my husband. Not a fact that I have deposed falsely."
Examination-in-chief of PW3, Swapan, a brother of Manik, is quoted
below:-
"I am a resident of Kajialpara under Rajarhat P.S. Manik Mondal, since deceased,
was my brother. PW-1 is my brother. PW-2 is the wife of my deceased brother. My
deceased brother was an employee of Gitashree Cinema Hall at Rajarhat. On 12.11.2000
approximately at about 5 a.m. my deceased brother went out of home for morning walk.
At about 6.30 a.m. I woke up. On that time two persons came with my deceased brother
in injured condition in a Taxi. At that point of time my deceased brother had a little bit
senses. My deceased brother told that Joinal beaten up him with wicket of cricket. From
the house we took our brother at Rajarhat P.S., from there he was removed Rekjowani
Primary Health Centre and therefrom to R.G.Kar Medical College & Hospital. Thereafter,
he was shifted to S.S.K.M. Hospital at Kolkata. Ultimately at night my brother succumb
to his injury. On the previous day an altercation took place between my brother Manik
and accd. Joinal over witnessing a picture in the Cinema Hall and at that time Joinal
threatened that he will see him later. Question - How you came to know about it? Ans:
My brother reported the matter at night. In the morning Joinal offered us money
through para people and assured that he would bear the medical expenses for the
treatment of my brother.I have a tea-stall at Rekjowani More under Rajarhat P.S. Police
interrogated me. Joinal is present in the court(identified)."
Cross-examination of PW3 is quoted below:-
"On 12.11.2000 in the evening police interrogated me. I cannot say the name of the two
persons who brought my brother at home by Taxi in injured condition. They did not divulge the
cause of injury of my brother. It is not a fact that I have not stated to the police that my
deceased brother told us that he was not beaten up by Joinal with wicket of cricket. Not a fact
that I have not stated to the police that on the previous day of the occurrence a dispute took place
between my brother and accused over witnessing a picture in the Cinema Hall or that I have not
stated that my brother was an employee of Gitasree Cinema Hall at Rajarhat or that I did not
wake at 6.30 a.m. or that Joinal did not threaten my brother that he will see him later or that my
brother did not report us asto the dispute in between himself and accused or that Joinal did not
propose money for treatment of my brother through para people. Not a fact that my deceased
brotherhad no ability to speak at that time. I did not see that occurrence. I have not stated to the
police that my brother was at first taken to Rajarhat P.S., therefrom to Rekjowani P.H.C.,
therefrom to R.G.Kar Medical College & Hospital and thereafter to S.S.K.M. Hospital. It is not a
fact that accused is not responsible for the death of my brother. Not a fact that the accused has
been falsely implicated. Not a fact that I have deposed falsely."
Deposition of PW4, Somnath, a nephew of Manik, is quoted below :-
"I am a resident of Kajialpara under Rajarhat P.S. I have a business of building materials.
Manik Mondal, since deceased, was my maternal uncle in distant relation. In the year 2000 I was
an employee of Gitasree Cinema at Rajarhat. On that time deceased was also an employee of the
said Cinema Hall. On 12.11.2000 at about 7 a.m. while I was sleeping, I came to know that
Manik was brought at Rekjwani P.H.C.. While I was about to reach in the P.H.C., Manik was
brought out in order to remove him at R.G.Kar Hospital. We followed them and on reaching at
R.G.Kar Hospital, we then notice that the victim was being taken to S.S.K.M. Hospital. At about
9/9.30 P.M. Manik took last breath. At the time of removal of the deceased from P.H.C. to
R.G.Kar Hospital he was in senseless state.
XXN I do not know the cause of the injury."
Examination-in-chief of PW5, Bablu, taking injured Manik home, is quoted
below:-
"I am a resident of Kaipul under Barasat P.S. I used to deal in business of fishes. On
12.11.2000 at about 6 a.m. I was going towards Kalipark through the Bus Route No.211 by cycle
for catching fishes. While I was taking tea at Ajadnagar More, I found an assembly of people
there. I knew Manikda(victim) who was an employee of a Cinema Hall at Rajarhat. I found
Manikda lying on the road in injured condition but having senses. Manikda told me to remove
him at home and then myself along with one Atiar Gazi removed Manikda to his home by a Taxi.
Police interrogated me over the incident. I had no talk with Manikda."
Prosecution cross-examination of PW5, declared hostile, is quoted below:-
"Manikda died subsequently. When Manikda was taken to his home, he had senses and
he talked with his family members and also with us. On 20.1.2001 police interrogated me. I have
stated to the police about the incident. It is not a fact that I have stated to the police that Manik
Mondal was lying on the road with pool of blood. Not a fact that I have stated to the police that
Manik Mondal told me that Joinal assaulted him with a wooden butt and fled away. Not a fact
that I have suppressed the truth in order to save Joinal. Not a fact that I have deposed falsely."
Defence cross-examination of PW5 is quoted below:-
"Many passersby used to move in the road of Bus Route No.211 from dawn. It is a
congested road and van rickshaw and other vehicles used to ply through that road. Not a fact
that I did not state to the Police that Manik Mondal had senses when I met him on the road. Not a
fact that I have not stated to the police that when we took Manik Mondal, he had no senses. I do
not recollect how many days after the date of occurrence police interrogated me. Not a fact that I
have not stated to police that Manik Mondal requested me to remove him at his home. Not a fact
that I have not stated to the police that Atiar and myself removed Manik Mondal at his home."
Examination-in-chief of PW6, Atiar, taking injured Manik home, is quoted
below:-
"I used to deal in catching of fishes. On 12.11.2000 at about 6 a.m. on the way to my
working place I was taking tea in a tea-stall at Ajadnagar with Bablu(PW-5). In a little bit
distance from tea-stall we found Manik Mondal lying on the road having head-injury. However,
he had senses. Then myself and PW-5 removed him by a taxi at his home. I do not know how
Manik Mondal sustained injury. Police interrogated me."
Prosecution cross-examination of PW6, declared hostile, is quoted below:-
"Manik Mondal died in the hospital subsequently on that date. When myself and PW-5
reached near Manik Mondal, he asked us to remove him to his home. Not a fact that I have stated
to police that I found found Manik Mondal lying on the road with pool of blood. Not a fact that I
have stated to police that Manik Mondal told us that Joinal assaulted him with a wooden butt.
Not a fact that in order to save Joinal i.e. accused I have deposed falsely."
Defence cross-examination of PW6 is quoted below:-
"I do not recollect that as to whether I have stated to police that Manik Mondal
had senses. Not a fact that I have stated to the police that Manik Mondal requested us
to remove him at his home."
Relevant part of examination-in-chief of PW7, the doctor doing the post-
mortem, is quoted below:-
"On examination, I found the following injuries:-
1.Abrasion 2inchX1inch over left forehead, 1 inch left to midline just above the left eye-
brow;
2. Abrasion 1 inch X ½ inch over dorsal aspect of right hand just over the knuckle of right ring finger;
3. Bruise 2 inch X 1 inch over dorsal aspect of right hand;
4. Bruise 3 inch X 2 inch over dorsal aspect of left hand;
5. Bruise 4 inch X 2 inch placed almost horizantaly over anterior aspect of right leg 1½ inch below right knee;
6. Bruise 2nich X 1 inch over lateral aspect of left knee;
I found the following injuries on disection:
1. Haematoma 8 inch X 4 inch in sculp tissue over left frontal parietal occipital region;
2. Fissured fracture 4 inches long placed almost longitudinal over left parietal bone;
3. Subdural haemorrhgo with clotts over both the cerebral hemesthers and its under surface."
Relevant part of cross-examination of PW7 is quoted below:-
"In case of dashing by a vehicle from behind and subsequently fallen on hard substance these kind of injuries may happen. In my opinion, I did not mention whether the death was homicidal, accidental or suicidal. It is true that without consulting the report of viscera I have submitted the P.M. Report. I have no paper that the police officer thereafter has made any contact with me before submission of charge sheet. Not a fact that without ascertaining the report F.S.L. I cannot say conclusively the cause of death. Not a fact that in the event of defending one person may not sustain the injury as stated by me in my examination-in-chief. Not a fact that the injury sustained by the victim of the case were not sufficient resulting to his death. Not a fact that P.M. Report is insufficient. Exbt-3 does not show any reference of case number but it indicates the P.M. Examination number. Not a fact that Exbt-2 was not prepared in strict compliance with Medical Jurisprudence."
Relevant parts of examination-in-chief of PW8, the IO, are quoted below:-
"I have examined witnesses U/S 161 Cr.P.C. like - Md. Abdul Haziz, Abdul Hai, Swapan Mondal (PW-3), Smt. Polly Mondal (PW-2) and others....................................... I have examined Sri Bablu Sardar (PW-5) on 20.1.01. PW-5 Bablu has stated to me that Manik Mondal was lying on the road with pool of blood. PW-5 has also stated to me that Manik Mondal told him that Joinal assaulted him with a wooden butt and fled away. I have examined Atiar Mondal (PW-6) on 20.1.01 PW-6 has stated to me that he found Manik Mondal lying on the road with pool of blood. PW-6 has also stated to me that Manik told them that Joinal assaulted him with a wooden butt."
In cross-examination PW8 said, inter alia, as follows:-
"Initially the investigation was started U/S 325 of I.P.C. The written F.I.R. (Exbt-1) contains the signature of Ld. S.D.J.M., Barasat dtd. 17.11.2000. It would be hardly 18 kilometers from Barasat Court to Rajarhat P.S. The messanger/Police personnel from Rajarhat P.S. used to visit Barasat Court regularly. Soon after registration of the case, the charge of investigation was entrusted upon me...............................................
PW-3 Swapan Mondal has not stated to me that his deceased brother told that Joinal beaten him up with wicket of cricket. PW-3 Swapan Mondal did not state to me that Joinal threatened that he would see him later. PW-3 also did not state to me that his deceased brother was an employee of Gitasree Cinema Hall at Rajarhat. PW-5 Bablu Sardar has not stated to me that while he found Manik-Da lying on the road he had senses. PW-5 has not stated to me that Manik Da told to remove him at home. PW-5 also did not state to me that he himself along with one Atiar (PW-6) removed Manik-Da to his home by a Taxi.
Not a fact that PW-5 did not state to me that Manik has not stated to him that Joinal assaulted him with a wooden butt and fled away. PW-6 Atiar did not state to me that when he and PW-5 riched near Manik Mondal he asked us to remove him at his home. Not a fact that PW- 6 did not state to me that Manik told them that Joinal did not assault him with a wooden butt.
It is not a fact that I did not visit the place of occurrence. Not a fact that my investigation is perfunctory. Not a fact that no such F.I.R. was started prior to 17.11.2000. Not a fact that I have deposed falsely."
The appellant was examined under s.313 CrPC on July 21, 2008. He claimed innocence, expressed ignorance and asserted that the allegations were false. His advocate said that he would not give any evidence in defence.
The court below held as follows. Evidence given by PW7 proved that the injuries were homicidal in nature. Evidence given by PWs1-6 proved that the scene of the crime and the time were those claimed by the prosecution. PW2's evidence of dying declaration suffered from no infirmity and was fully reliable. The appellant's statement and consequent recovery of the offence weapon were important connecting circumstances. The appellant fled after the occurrence and surrendered only on January 3, 2001. PW3's evidence of treatment-expense-offer by the appellant through neighbours should not be brushed aside simply because no neighbour was examined. The prosecution witnesses gave evidence that Manik did not permit the appellant to watch a movie.
By an order dated September 26, 2008 this court admitted the appeal. By an order dated December 11, 2008 this court rejected the appellant's prayer for suspension of the sentence and his release on bail. The appellant is in jail.
Mr Ganguly appearing for the appellant has submitted as follows. The de facto complainant is the victim's brother. Information of the incident was given to the police 15 hrs. after the incident. There is no explanation why the FIR was forwarded to court after five days. Hence it is not inappropriate, if an inference is drawn that the information involving the appellant was created subsequently. There is evidence that messenger from police station would visit the court regularly. Officer who registered the FIR was not examined. The scribe of the written information was not examined. General Diary showing receipt of information was not produced. The de facto complainant deposed as PW1. PW1 could prove only his signature on the information, but not the contents thereof. He admitted that what he said in court he said for the first time. This means that things said by him he said seven years after the incident for the first time in court. PW1 admitted that he did not disclose name of the assailant to doctor. Tapan was not examined. PWs1 & 2 did not say that PW3 was present when injured Manik was brought home. The only evidence is the evidence of an oral dying declaration of PWs2 & 3. PW2 said that the appellant was not known to her. She stated motive part after seven years for the first time in court. PW3 gave evidence of a different kind of offence weapon,- a cricket wicket. He said that the victim was taken to police station first. His evidence of treatment-expense-offer is vague. He did not name through whom it was made. An absolutely unreliable witness. PW3 did not say during investigation anything about the dying declaration. The oral dying declaration was disclosed by PWs2 & 3 for the first time in court seven years after the incident. PW4 was also an employee of the cinema hall. He did not give any evidence of any quarrel between Manik and the appellant on November 10, 2000. PWs5 & 6, the two persons taking injured Manik home, were declared hostile. They did not support the prosecution case against the appellant. The appellant's name was not disclosed to the doctors, none of whom was examined. There was nothing to link the seized, but not available in court, spade handle with the offence. There is nothing to show that warrant of arrest was issued treating the appellant as an absconder. He was just not arrested. There is no evidence that his house was raided. For withholding vital witnesses adverse inference should be drawn under s.114 of the Evidence Act.
Mr. Ganguly has relied on the following decisions:- Meharaj Singh v. State of UP, 1994 SCC (Cri) 1390 (holding:- "With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course, the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate."); Jagdish Murav v. State of UP & Ors., (2007) 2 SCC (Cri) 234 (quoting the principles stated in Meharaj on delay in sending report of FIR to the magistrate.); and Ram Nath Madhoprasad & Ors. v. State of Madhya Pradesh, AIR 1953 SC 420 (saying:- "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.").
Mr Dutta appearing for the State has submitted as follows. Evidence of PW1 corroborates every fact stated in his information leading to registration of FIR. It is wrong to say that the prosecution witnesses said anything in court for the first time seven years after the incident. The investigating officer said that during investigation he examined the witnesses. Manik was in his senses. Hence it was natural that he would name the attacker. The evidence shows that Manik was hit by a hard wooden substance. The investigating officer gave evidence of recovery of the wooden offence weapon following leads coming from the appellant. Non-availability of the seized offence weapon in court is no ground to discard the evidence of recovery. PW7 doing the post-mortem mentioned the injuries. The injuries were homicidal in nature.
Mr. Dutta has relied on the following decisions: - Balram Singh & Anr. v. State of Punjab, AIR 2003 SC 2213 (in that case the delay in the FIR reaching the jurisdictional magistrate was found satisfactorily explained by the prosecution); Rabindra Mahto & Anr. v. State of Jharkhand, AIR 2006 SC 887 (holding that delay in sending the FIR to the magistrate cannot be the sole basis for throwing out the entire prosecution case as fabricated, if the prosecution produces the reliable evidence to prove the guilt of the accused; in such a case it can at best be taken to be an infirmity in investigation); Hiraman v. State of Maharashtra, (2013) 3 CCrLR (SC) 28 (holding that the well settled proposition is that a dying declaration can be the sole basis for a conviction); and Kanaksingh Raisingh Rav v. State of Gujarat, (2003) 1 SCC 73 (holding:- "..., in our opinion, the law is well settled i.e. if the declaration is made voluntarily and truthfully by a person who is physically in a condition to make such statement, then there is no impediment in relying on such a declaration.").
Evidence given by PW1, Biren, proves nothing substantial except that he signed the information, Ex1, on receipt whereof the FIR, Ex4, was registered; that Manik was an employee of Gitashree Cinema Hall; that he was one of the persons who took injured Manik to hospital on November 12, 2000; and that Manik died on the night of November 12, 2000. PW1 was living in a separate house at a five- minute walk from Manik's house. PW1 admitted that he "did not see the happening." He said a lot of inconsistent things about the incident, but remained firm that the appellant committed the offence.
PW2, Polly, is Manik's wife. She said that in the presence of PWs5 & 6, the two persons who found injured Manik lying on the road at Raigachi and brought him home in a taxi, Manik somehow could tell her that the assailant was one Joinal; and that Manik died at hospital on the night of November 12, 2000 at about 9.00 p.m. On her evidence of the dying declaration there was no specific cross-examination.
PW3, Swapan, a brother of Manik living in the same house, said that Manik was in his senses and said that the appellant was the assailant. He identified the appellant in court. It is evident that the appellant was known to him(PW3). He (PW3) also said that in the morning the appellant gave treatment- expense-offer through neighbours. Though his evidence of the dying declaration is fully corroborated by the evidence of PW2, there is, however, no corroboration of his evidence of the appellant's giving any treatment-expense-offer.
Evidence given by PW4, a nephew of Manik, only proves that in 2000 he and Manik both were working in Gitashree Cinema Hall; that on November 12, 2000 injured Manik was taken to the Primary Health Centre and hospitals for treatment; that when Manik was taken out of the Primary Health Centre for taking him to hospital, he (Manik) was in a senseless state; and that on that same day at about 9-9.30 p.m. Manik died.
PW5, Bablu, and P6, Atiar, are the two persons who brought injured Manik home. Their evidence is this. They were taking tea together at Ajadnagar on November 12, 2000 at about 6 a.m. They found Manik lying on the road in an injured condition. Manik was known to them. Manik was in his senses. Manik asked them to take him home. Accordingly, they together took Manik to his home in a taxi. They were interrogated by police.
Both PWs5 & 6 were declared hostile; for while PW5 said that he had no talk with Manik, PW6 said that he had no idea how Manik sustained injury. In cross-examination PWs5 & 6 both admitted knowledge of Manik's death; PW5 said that when Manik was taken home he had senses and he talked to his family members and also to him and PW6, Atiar; but denied that they told police that Manik had told them that the appellant attacked him with a wooden handle.
PW7 proved the post-mortem report, Ex2, containing the details of the injuries he stated in court, and said that the injuries could not be self inflicted, but that the case might be a homicidal one. In cross-examination he said that it was possible to suffer the injuries by one dashed by a vehicle from behind and falling on hard substance. There is, however, no evidence that the victim was knocked by any vehicle and that he suffered the injuries in such an incident. He also denied that the injuries were not sufficient to cause the victim's death.
PW8, the investigating officer, said that following leads coming from the appellant on January 8, 2001 he seized a wooden spade handle on January 13, 2001. The seized thing was not available in court. No witness to the seizure was examined. PW8 was not asked to explain why the FIR dated November 12, 2000 was seen by the magistrate as late as November 17, 2000. He, however, remained firm that during investigation both PWs5 & 6 told him that Manik told them that the appellant attacked him "with a wooden butt and fled away."
PW1 is a younger brother of Manik. He is also the de facto complainant. He was living in a different house at a five-minute walk from Manik's house. PW2 is Manik's wife. PW3 is an elder brother of Manik. PWs2 & 3 were living with Manik in the same house. PW4 is a distant relation of Manik. He is also a resident of the same place. PWs5 & 6 are the two persons who brought injured Manik home. PW7 is the doctor doing the post-mortem on Manik. They all were examined during investigation and cited in the charge-sheet as witnesses.
Evidence given by the prosecution witnesses and the documents proved by them proved beyond reasonable doubt that the homicidal bodily injuries caused to Manik in the morning of November 12, 2000 caused his death on the night of November 12, 2000 at about 9 p.m. According to the prosecution, the appellant caused the injuries with a wooden spade handle. The offence weapon was not produced in court.
No seizure list witness was examined. There is no eyewitness to the incident. PWs5 & 6 who brought injured Manik home were declared hostile. Doctors attending Manik were not examined. Tapan signing the hospital papers was not examined. FIR scribe was not examined. Neighbours through whom treatment-expense-offer was made were not examined. FIR was forwarded to court after five days. There is nothing about the driver of the taxi in which injured Manik was brought home. Motive aspect has remained vague.
Nothing except the evidence of oral dying declaration given by PWs2 & 3 clinchingly implicates the appellant. Hence the prosecution may succeed, only if the evidence of oral dying declaration given by PWs2 & 3 is believed.
PWs5 & 6 are the two persons who brought injured Manik home in a taxi. Their evidence proves that Manik was known to them, and that he was in his senses and able to talk. The evidence, however, does not reveal whether Manik's home was known to them. Their evidence also proves that when Manik reached home he talked to his family members and also to them. During investigation they said that Manik told them that the appellant was the assailant. In court they denied that they had said so.
Evidence given by PWs2 & 3 that injured Manik was brought home by PWs5 & 6 in a taxi; that Manik was in his senses and able to talk; and that he talked them (PWs2 & 3) is fully corroborated by the evidence given by the hostile PWs5 & 6. While PWs5 & 6 did not disclose what Manik said to them and to his family members, both PWs2 & 3 said that Manik named the appellant as the assailant. Evidence given by PWs2 & 3 reveals that the appellant was known to PW3, but not to PW2.
There is not an offender, who will not struggle to tear the prosecution net, and there is not a prosecution so naïve as to examine a witness giving indication that he would turn hostile. A witness turning hostile plays false with the prosecution for the gain of the accused. Why he does this can be well perceived; but he remains unscathed and busks in his achievement. But the hole caused by him cannot always provide the obvious beneficiary the escape route to acquittal.
It is just not believable that PWs5 & 6 who were known to Manik, who asked them to take him home, evidently, known to them, did not ask him or were not told by him anything about the injuries. The first thing they would have wanted to know is how Manik suffered the injuries; and there is nothing for which Manik would not have disclosed the cause of his injuries. It is not the evidence that Manik could not recognise his attacker. PWs5 & 6 withheld the truth and took advantage of the fact that their statements were recorded only under s.161 CrPC.
It is wrong to say that in their cross-examination PWs2 & 3 said that they were disclosing the fact of dying declaration for the first time in court. Such a conclusion reached by reading their cross-examination will be actually a conclusion based on non-existent facts. The appellant's name was mentioned in the FIR. It is true that the delay in forwarding the FIR to court has remained unexplained. That required the court to be more cautious, not to throw out the prosecution case.
Lapses and loopholes in the investigation, irrespective of whether they were kept by the investigating officer deliberately or occurred for his inability, cannot bring an acquittal for an accused. He gets it only if the evidence does not prove the charge against him beyond reasonable doubt. Hence the question is not what the investigating officer did or ought to have done; nor is it important that two main witnesses were declared hostile.
There is no evidence that the appellant was an absconder. He surrendered himself to court on January 3, 2001 (the FIR was registered on November 12, 2000 only under s.325 IPC) and was granted bail on April 4, 2001. The investigating officer wanted addition only of s.304 IPC. The charge-sheet was submitted on April 16, 2001 under ss.325/304 IPC. The trial commenced on December 17, 2007. Evidence given by PWs5 & 6 reveal that the appellant was known to them. Why the prosecution had to declare them hostile has remained a million dollar question.
PWs2 & 3, though interested, were natural witnesses; and there is no reason to doubt their presence at the house when PWs5 & 6 reached the house with injured Manik in a taxi. Manik was in senses, able to talk and actually talked. There is no reason to doubt that he would not have named his assailant; nor is there any reason to disbelieve what PWs2 & 3 said in court.
Only because PW3 said that the offence weapon was a cricket wicket, his evidence of the dying declaration is not to be discarded. Evidence of the declaration given by PWs2 & 3 is not to be discarded either on the grounds that no doctor was examined, or no treatment paper was produced and proved, no weapon was produced, or no such case was stated in the FIR.
PWs2 & 3 were not the persons taking necessary steps for Manik's treatment in the Primary Health Centre and the hospitals; nor were they the persons on whose information the FIR was registered. A spade handle and a cricket wicket may look alike to many, especially when it is used as a weapon. It is not that PWs2 & 3 gave conflicting version of the dying declaration as to the offence weapon. PW1 did not say anything about the offence weapon.
There is, therefore, no doubt that it is the appellant who attacked Manik in the morning of November 12, 2000 and inflicted the bodily injuries which caused Manik's death on the night of November 12, 2000. The nature of the injuries leads to the only conclusion that the appellant inflicted them with the knowledge that they were likely to kill Manik. The premeditation and cruelty with which he committed the act leave no room to doubt that it is a clear case of murder.
For these reasons, the appeal fails and accordingly it is dismissed. The appellant's conviction by the court below is affirmed and the sentence imposed by it is maintained. Department to take steps under s.388 CrPC. Certified xerox.
(Jayanta Kumar Biswas,J.) Dr. Mrinal Kanti Chaudhury,J:- I agree (Dr. Mrinal Kanti Chaudhury,J.) ab