Calcutta High Court (Appellete Side)
Golam Sarwar & Others vs State Of West Bengal on 16 May, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Subrata Talukdar
CRA 682 of 2010
Golam Sarwar & Others
-vs.-
State of West Bengal
For the Appellants nos. 1 to 10 : Mr. Sudipto Moitro
Mr. Rajitlal Moitra
Mr. Vijay Barma
Mr. Biplob Das
Mr. Biswajit Manna
For the Appellants nos. 11 to 44 : Mr. Bikash Ranjan Bhattacharya
Mr. Rabi Sankar Chattopadhyay
Mr. Uday Sankar Chattopadhyay
Mr. Suman Sankar Chattopadhyay
Mr. Santanu Maji
Mr. Biswajit Manna
For the State : Mr. Manjit Singh, learned Public Prosecutor
Mr. Anand Keshari
Mr. Antarikshya Basu
Mr. Pawan Kumar Gupta
Heard on : 20.01.2014, 21.01.2014, 22.01.2014, 24.01.2014, 27.01.2014,
28.01.2014, 29.01.2014, 30.01.2014
Judgment on : 16.05.2014
Nishita Mhatre, J.:
1. The present appeal arises from the judgment and order of the Additional Sessions Judge, 1st Court, Suri, Birbhum, in Sessions Case No. 70 of 2000 decided on 11th November, 2010.
2. Eighty one persons were charged for having committed offences under Sections 147, 148, 149, 326, 307, 302, 120B I.P.C. and Section 9B(2) of the Indian Explosives Act. Seventy six persons were committed for trial on 16th September, 2002. One of the accused was arrested later and he was tried along with the other seventy six accused. The Sessions Court, by its judgment, has convicted 44 of the accused under Section 302 read with Section 149 of the I.P.C. They have been sentenced to life imprisonment and a fine of `5000/- (Rupees five thousand only) and in default of payment of such fine, six months rigorous imprisonment for each offence. They have also been sentenced to suffer imprisonment for three years and a fine of `1000/-(Rupees one thousand only) for the offence under Section 148 I.P.C. The other accused have been acquitted.
3. Ghastly and vicious crimes have been committed in this case where 11 persons have been murdered. Before proceeding with the matter, it is necessary to mention here that investigation conducted in this case was abysmal reflecting an alarming state of affairs where the police did their utmost to ensure that the perpetrators of the crime went scot free. Statements of all the witnesses have not been recorded by the police. There is no seizure of the weapons used in the assault, nor of any other relevant articles. This is the sorry situation although there were three Investigation Officers who handled this case consecutively. The careless, perfunctory and lackadaisical investigation reflects a sad story and is a telling comment on the role of the police in this case. In spite of all these shortcomings this Court has attempted to sift the grain from the chaff in order to ascertain the truth of the prosecution case.
4. The story of the prosecution in brief is that on 27th July, 2000 at about 6 or 6.30 a.m. one Sk. Safique was driving a tractor from his village Purandarpur to Suchpur. When he was proceeding alongside the land of one Bacchu Miya and Babu Miya in his tractor, a large number of people armed with weapons like tangis, spears, muskets, bombs and rifles suddenly attacked him. Supporters of the Trinamool Congress (hereinafter referred to as 'T.M.C') party who were working in the adjacent fields came running to his rescue. The miscreants attacked those persons with sharp weapons. They dragged Sk Safique and those who came to his aid to Suchpur Club, while continuously beating and assaulting them. These persons were dragged out, one at a time, from the club room and killed mercilessly by assaulting them with fire-arms, bombs, muskets, sticks and tangis. The dead bodies were strewn in the fields beside the Suchpur Baitara Gravel Road. Ten persons were killed on the spot. One of the persons who were brutally assaulted died on the way to hospital. The inquest was conducted between 10 a.m. and 1 p.m. on the same day. The corpses were then sent for the post mortem examination. The FIR was lodged at 2.45 p.m. against 53 persons. The charge was framed against 81 persons under Sections 147, 148, 149, 326, 307, 302, 120B of the I.P.C. and Section 9B(2) of the Indian Explosives Act. The case was filed against 4 persons on 24th January, 2002 as they were absconding. The case was committed to the Sessions Court on 16th September, 2002 against seventy six persons besides one person who was arrested later.
5. Seventy seven accused were tried by the Sessions Court. Thirty two witnesses were examined by the prosecution in support of its case. Out of these witnesses, PWs 1, 4, 6, 9, 10 and 14 claim to be eye- witnesses. The relatives of the deceased were also examined as witnesses. Four doctors were examined to prove the post mortem reports. Three witnesses examined by the prosecution have been declared hostile. PWs 7, 8 and 11 are witnesses to the inquest conducted by PWs 20, 24 and 25. The Investigating Officers have been examined as PW 31 and PW 32. The accused have examined three witnesses to rebut this evidence.
6. The broad contours of the arguments of the counsel for the appellants are:
(i) The FIR is not genuine because there is a delay in lodging it.
Material particulars of the prosecution case have not been mentioned in the FIR. It is not the first information received by the police as the inquest was held before the FIR was lodged.
(ii) The statements of the witnesses have been recorded before the Court for the first time and their statements were not recorded under Section 161 of the Cr.P.C. by the police.
(iii) No test identification parade was held.
(iv) All the eye-witnesses identified the accused in the Court for the
first time and, therefore, this identification was not valid.
(v) No independent witness was examined before the Court. All the witnesses were relatives of the deceased and, therefore, were interested witnesses. Witnesses who had been named in the FIR were not examined.
(vi) The medical evidence does not tally with the ocular evidence.
The injuries mentioned in the post mortem report do not match with the testimony of the witnesses or the inquest report.
(vii) The evidence led by the prosecution is untrustworthy.
(viii) Although the accused have been charged for committing an offence under Section 149, the common object of the accused has not been proved. Therefore, it is necessary for the prosecution to prove the overt act committed by each of the accused before they could be convicted.
(ix) The motive to commit the alleged crime has not been proved.
(x) The examination of the accused under Section 313 Cr.P.C. is not valid as each inculpatory statement has not been put to each of the accused as required by law.
In order to appreciate the arguments advanced it would be useful to first deal with the judgments cited at the bar. The evidence can then be assessed and evaluated in the light of the principles of law enunciated by the Supreme Court.
7. On the first point in issue regarding the delay in filing the FIR, the learned Counsel for the appellants have relied on the judgments in the case of State of A. P. vs. Punati Ramulu And Others reported in (1994) Supp (1) 590, Yanob Sheikh alias Gagu vs. State of West Bengal reported in (2013) 6 SCC 428, Kanhaiya Lal and Others vs. State of Rajasthan reported in (2013) 5 SCC 655. The prosecution on the other hand has relied on Baldev Singh vs. State of Punjab reported in AIR 2013 SC (Criminal) 2224, Gangabhavani vs. Rayapati Venkat Reddy & Ors. reported in AIR 2013 SC (Criminal) 2135.
8. An analysis of all these judgments reveals that it is not in every case that an FIR has to be discarded if it is filed after some delay. If the prosecution is able to explain the reason for the delay the FIR can be accepted. Moreover, there is no specific period within which the FIR must be lodged. The only stipulation is that it must be lodged with alacrity and without inordinate delay. The Court is required to examine the explanation furnished by the prosecution for the delay in filing the FIR. The reasons for the delay could be varied. It may have occurred because of the number of victims in the case, the atmosphere prevailing at the scene of offence, the palpable fear in the mind of the complainant, etc.
9. The appellants have contended through their Counsel that the FIR was not in effect the first information received by the police. This was because the inquest was conducted prior to the lodging of the FIR. The inquest was performed between 10 a.m. and 12 noon on 27th July, 2000 whereas the FIR was lodged at 2.45 p.m.
10. Mr. Moitra, the learned Counsel for the appellants has relied on the judgment of this Court in the case of Mamfru Chowdhury & Ors. vs. King Emperor reported in AIR 1924 Calcutta 323 in support of his contention that the FIR lacks details regarding the precise circumstances in which the incident occurred and the time and place of the incident. According to the learned Counsel, the incident must be split up into two parts - firstly, the one which occurred when Sk Safique was attacked by some persons while he was driving his tractor and the second part of the incident which occurred at the club room. The learned Counsel points out that no role has been ascribed to any of the accused in the FIR, more particularly, Nitya Narayan - appellant No. 23, who allegedly attacked Sk Safique with a knife on his cheek. He, therefore, submits that since this vital information has not been mentioned in the FIR it cannot be treated as genuine.
11. In State of U.P. vs. Ballabh Das & Others, etc. etc. reported in AIR 1985 SC 1384, Animireddy Venkata Ramana and Ors. vs. Public Prosecutor, H.C. of A.P. reported in AIR 2008 SC 1603 and Pedda Narayana and Others vs. State of Andhra Pradesh reported in 1975 SCC (Cri) 427 the Court has observed that minute details of the incidence of the crime need not necessarily be mentioned in the FIR. It is not an encyclopaedic version of all that occurred in the commission of a crime. It is a document which is only meant to give the substance of the allegations made. Therefore, the absence of details in the FIR would not render it invalid. While considering the effect of some omissions in the FIR on the part of the informant, the Court is required to take into consideration the probable physical and mental condition of the first informant. When the FIR is found to be truthful, it cannot be discarded only because the names of some of the accused persons had been mentioned, against whom the prosecution was not able to establish its case. An entry in the general diary, which was not produced, cannot be treated as the FIR and enquiries made on the basis of that entry by the police would not vitiate the entire trial. When information about the commission of an offence is received by an Officer-in-Charge of the police station, he is expected to reach the place of occurrence as early as possible. He is not expected to take such a step only on the basis of an FIR. It is the duty of the State to protect the life of an injured, and that the endeavour on the part of a responsible police officer to reach the place of occurrence is his implicit duty and responsibility, once information about the crime is received by him, observed the Supreme Court.
12. It has also been argued on behalf of the appellants that the FIR does not give details of the incident although it has been filed after a delay of almost seven hours and, therefore, it should not be believed. In State of Maharashtra vs. Ahmed Shaikh Babajan & Ors. reported in 2009 (1) E Cr. N 637 while highlighting the importance of an FIR the Court has observed that the recording of an FIR is not a precedent for setting in motion the criminal investigation; yet it conveys to the investigating authorities the earliest information regarding the circumstances in which the crime was committed; the names of the culprits and the role played by them as well as the names of the witnesses present at the scene of occurrence which are essential for an effective and meaningful investigation. However, the FIR is not intended to be an encyclopaedia of the background scenario as reiterated by the Supreme Court in State of A.P. vs. Golconda Linga Swamy & Anr. reported in 2004 (6) SCC 522. The Court further observed that though the FIR does not constitute substantive evidence and could only be used for either corroborating or contradicting the version of its maker, the omission of material facts pertaining to the crime is relevant for judging the veracity of the prosecution case.
13. In Anand Mohan vs. State of Bihar reported in 2013 Cri. L. J. 2644 a wireless message was sent soon after the incident to the police station. The Supreme Court considered whether this wireless message could be considered as the FIR or the typed report subsequently lodged by one of the witnesses in the police station could be considered to be the FIR as contended by the prosecution in that case. The Court observed that the person who gives the information and who has to sign the information has to choose which particular information relating to the commission of a cognisable offence is to be treated as an FIR. The wireless message was cryptic and did not sufficiently disclose the nature of the offence committed, or the identity of the persons who committed the offence. The Court observed that unless information was collected as to how exactly the deceased was killed it was not mandatory for the witness to lodge the same as an FIR or for the Officer of a police station to treat the wireless message as an FIR. The Supreme Court did not find any error in the Trial Court and the High Court not having treated the wireless message as an FIR and having accepted the subsequent typed information as lodged by the witness as the FIR.
14. Thus, it is apparent from the aforesaid judgments that where an FIR is lodged after some delay it can be accepted provided there is reasonable explanation from the prosecution for the delay in registering the FIR. It is not a document meant to elucidate encyclopaedic information but can provide intelligence about the occurrence of a crime. The FIR cannot be discarded merely because of the delay or the witnesses named have not been examined if there is sufficient evidence on record to establish the crime. It is necessary to consider the omissions in the backdrop of the physical and mental condition of the first informant, including whether the circumstances were conducive for lodging of an FIR immediately.
15. The next submission on behalf of the accused was that the sketch map which was drawn by the Investigating Officer Sufal Ghatowal, who was in charge of this case initially had expired when the evidence was led, and later exhibited was not a true depiction of the scene of offence. It is submitted that a sketch map should give the exact location of the scene of offence including the position of the eye-witnesses. In Pratap Singh & Anr. vs. State of Madhya Pradesh reported in (2006) 2 C Cr LR (SC) 1, Nasu Sheikh and Others vs. The State of Bihar reported in 1972 SCC (Cri) 578 and in Lallu Manjhi and Another vs. State of Jharkhand reported in (2003) 2 SCC 401 the Supreme Court has observed that preparation of a sketch plan is essential in order to ascertain the exact position of the scene of offence. The Court should not be left in any doubt and required to guess the exact position of the witnesses vis-à-vis the place of occurrence of the crime.
16. It has been argued that the witnesses for the prosecution should not be believed because they have been examined and made statements before the Court for the first time. The statements, recorded in Court after a period of four years, would therefore be embellished and be far from true. According to the Counsel for the appellants it is necessary to record the statements of the witnesses immediately and without any delay. Reliance is placed on Harjinder Singh alias Bhola vs. State of Punjab reported in (2004) 11 SCC 253, Vijaybhai Bhanabhai Patel vs. Navnitbhai Nathubhai Patel and Others reported in (2004) 10 SCC 583, Shingara Singh vs. State of Haryana reported in 2004 Criminal Law Journal 828, Alamgir vs. State (NCT, Delhi) reported in 2003 SCC (Cri) 165, Subal Ghorai & Ors. vs. State of West Bengal reported in AIR 2013 SC (Cri) 1585. These judgments will be adverted to later when the evidence on record is being considered.
17. The next issue is whether independent witnesses must be examined in all cases and whether non-examination of such independent witnesses would result in the evidence being frail and unacceptable. Judgments with respect to the need to examine independent witnesses have been cited at the bar being Jassa Singh & Ors. vs. State of Haryana reported in (2002) 2 SCC 481, Deepak S Kumar vs. Ravi Virmani & Another reported in (2002) 2 SCC 737, Satbir Singh vs. State of U.P. reported in AIR 2009 SC 2163, State of U. P. vs. Ballabh Das & Ors. reported in AIR 1985 SC 1384, Alamgir vs. State (supra), Gangabhavani (supra), Baldev Singh (supra).
18. The propositions that emerge from a scrutiny of these judgments are that the evidence of a witness who is related to the deceased need not be discarded in all cases. A related witness may not necessarily be an interested witness unless that witness is going to benefit by the order which the Court would pass. As a general rule, the testimony of a witness who is related to the victim or is an interested witness should be considered by the Court with care and caution in order to exclude the possibility of false implication. The evidence of an interested witness cannot be presumed to be tainted. The Court has to consider whether the testimony of such a witness is creditworthy after closely scrutinising and appreciating the evidence on record. The acceptance of the evidence of an interested witness or of a witness who is a relative of the victim is not barred in a criminal trial if it has been closely scrutinised and there are no other circumstances necessitating its exclusion. On a consideration of the testimony, if there is a ring of truth in it and it is cogent, credible and trustworthy, it can and should be relied on.
19. The next issue on which the learned Counsel for the appellants harped on was that all the witnesses had identified the accused for the first time in Court. There was no test identification parade held in order to ascertain whether the witnesses could identify the accused. According to the learned Counsel, this is a serious lacuna in the prosecution case. In the case of Malkhansingh & Others vs. State of Madhya Pradesh reported in AIR 2003 SC 2669 the Court has accepted the evidence of the witnesses who identified the accused in Court. This principle was reiterated in Subal Ghorai (supra). It has also been submitted that none of the witnesses were examined by the police as required under Section 161 of the Cr.P.C. Their statements were recorded in the Court for the first time. It has been the consistent view of the Supreme Court that omissions in the police statement by itself would not necessarily mean that the testimony of the witness is unreliable. Minor contradictions which appear in the statements of a truthful witness, due to the lapse in memory because the testimony was recorded in the Court after a considerable passage of time cannot discredit the entire testimony of the witness.
20. The next submission on behalf of the accused was based on the fact that the medical evidence did not tally with the ocular evidence. Learned Counsel have submitted that the post mortem reports do not disclose the injuries which the witnesses claimed to have been inflicted on the deceased by the accused. Moreover, the inquest reports also mention injuries which do not find place in the post mortem report and, therefore, considering the contradictions and discrepancies in the two reports, the learned Counsel submitted that the post mortem reports will prevail over the ocular evidence. Reliance has been placed on Sunil Kundu & Another vs. State of Jharkhand reported in (2013) 4 SCC 422 where the Court has observed that when the eye-witness account is totally inconsistent with the medical evidence and there are reasons to believe that improvements are made in the Court to bring the prosecution case in conformity with the post mortem notes, it is a cause for concern. The Court noted the judgment in the case of Kapildeo Mandal vs. State of Bihar reported in (2008) 16 SCC 99 where the eye-witnesses had categorically stated that the deceased was injured by a fire-arm whereas the medical evidence specifically indicated that there was no injury on the deceased caused by a fire-arm. The Court opined that while appreciating the variance between the medical evidence and ocular evidence, the oral evidence of an eye-witness has to get primacy as medical evidence is basically an opinion. However, when the evidence of the eye-witness is totally inconsistent with the evidence of the medical experts then the evidence has to be appreciated in a different perspective. When the medical evidence specifically rules out the injury which the eye-witness claims was inflicted by the accused, the Court can draw an adverse inference against the prosecution. In other cases, the Supreme Court has observed that where the doctor's experience has not been questioned, he is the only competent person to opine on the nature of the injuries and the cause of death. If the medical evidence did not support the presence of the accused as there was no injury on the deceased which could have been inflicted by the weapon allegedly carried by the accused, the eye-witnesses account would be glaringly inconsistent with the medical evidence and the credibility of the prosecution case would be shaken. However, in Darshan Singh and Others vs. State of Haryana reported in 1996 Cri. L. J. 4438 the Court was of the view that the opinion of the doctor as to how an injury was caused cannot override the unimpeachable testimony of eye-witnesses in case there is any inconsistency between them. Similarly, in Yunis alias Kariya etc. vs. State of M.P. reported in AIR 2003 SC 539 the Court observed that "mere non-mention of two injuries by the autopsy surgeon does not and cannot lead to the rejection of the prosecution case. The two injuries might have escaped the notice of the doctor." In State of Punjab vs. Hakam Singh reported in AIR 2005 SC 3759 the Supreme Court has held whenever there is a conflict between medical evidence and ocular testimony, normally the ocular testimony should be preferred unless it belies the fundamental facts. Thus the consistent view of the Supreme Court is that the ocular testimony has primacy over the medical opinion of an expert. Unless the evidence of the eye witnesses is glaringly inconsistent with the medical evidence, it must be accepted. However when the nature of injuries inflicted as opined by the doctor rules out the presence of the accused because the injuries were not compatible with the weapon allegedly used, the prosecution case would receive a jolt.
21. The next contention of the Counsel for the appellants is that the common object of the accused in committing the crime has not been established. It has also been argued that the role played by each of the accused has not been specifically described. The motive for commission of the offences has also not been spelt out by the prosecution. Reliance has been placed on the cases of Amerika Rai & Ors. vs. State of Bihar reported in (2011) 4 SCC 677, Kanhaiya Lal (supra), Khairuddin & Others vs. State of West Bengal reported in (2013) 5 SCC 753, Sunil Kumar & Another vs. State of Rajasthan reported in 2005 Cri. L. J. 1402, Lalji & Others vs. State of U. P. reported in AIR 1989 SC 754(1), State of A. P. vs. Thakkidiram Reddy and Others reported in (1998) 6 SCC 554, Subal Ghorai (supra). In Subal Ghorai (supra) the Supreme Court, on a conspectus of the judgements in Lalji (supra), Sherey & Ors. vs. State of Uttar Pradesh reported in AIR 1991 SC 2246, Akbar Sheikh and others vs. State of West Bengal reported in AIR 2009 SC (Supp) 1638, Pandurang Chandrakant Mhatre vs. State of Maharashtra reported in AIR 2010 SC (Supp) 204, Waman & Ors. vs. State of Maharashtra reported in AIR 2011 SC 3327 has observed as follows :
"29. The above judgments outline the scope of Section 149 of the IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 of IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 of the IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be member thereof. Section 143 of the IPC provides for punishment for being a member of unlawful assembly. Section 149 of the IPC provides for constructive liability of every person of any unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third', 'Fourth' and 'Fourth' of that section. Common object can be formed on the spur of the moment.
Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 of the IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 of the IPC if they shared common object of the unlawful assembly. 30. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, Court has to be cautious. It must guard against the
possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 of the IPC.
It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
22. The Supreme Court in Kanhaiya Lal (supra) has observed that there is no need for the witnesses to mention the exact role played by each of the accused who are charged with having committed an offence under Section 149 nor do they have to indicate as to who assaulted the different parts of the body of the deceased and with which weapon, as long as the accused shared a common object which is writ large. In Khairuddin (supra) the Court observed that minimum requirement that must be proved is that the accused were members of an unlawful assembly. It is not necessary to prove that an overt act has been committed by each member of that unlawful assembly, so long as they all shared a common object.
23. The last plank of the arguments advanced on behalf of the appellants is that the statements of the accused have not been recorded properly under Section 313. Reliance has been placed on the judgments in the case of Khairuddin (supra) and Sujit Biswas vs. State of Assam reported in AIR 2013 SCC 3817. In Khairuddin (supra) the Supreme Court observed thus :
"15. That the statement of an accused made under Section 313 CrPC can be taken into consideration is not in dispute; not only because of what Section 313(4) of the Code proves but also because of the law laid down by this Court in several pronouncements. We may in this regard refer to the decision of this Court in Sanatan Naskar v. State of W. B. where this Court observed :
"21. The answers by an accused under Section 313 CrPC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. ...
22. As already noticed, the object of recording the statement of the accused under Section 313 CrPC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. ... Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused.
It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) CrPC explicitly provide that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
24. Another important caution that courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 CrPC as it cannot be regarded as a substantive piece of evidence."
To the same effect is the decision of this Court in Ashok Kumar v. State of Haryana.
16. Reference may also be made to the decision of this Court in Brajendrasingh v. State of M.P. where this Court said :
"15. It is settled principle of law that the statement of an accused under Section 313 CrPC can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under Section 313 CrPC simpliciter normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 CrPC is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced."
It is now necessary to critically examine the arguments advanced on behalf of the appellants in the light of the aforementioned pronouncements of the Supreme Court.
24. Mr. Bhattacharya, learned Counsel for the appellants submitted that the FIR lodged with the police is not genuine. He fortified his argument by submitting that there is ample evidence on record to show that the inquest was conducted before the FIR was lodged, and that the first information was received between 8.05 a.m. and 9.40 a.m. by PW 31, the Investigating Officer. Mr. Moitra has submitted that there is a deliberate suppression of material by the prosecution as the first information received by the police has not been brought on record. He further submitted that if one accepts the FIR as it is, there is a substantial delay in filing the same. He pointed out that there is no explanation at all as to why there was a delay. He reiterates the submission of Mr. Bhattacharya that the FIR is not genuine.
25. The learned Public Prosecutor submitted that there was no delay in filing the FIR. The general diary entry was recorded at the Nanoor Police Station at 7.55 a.m. indicating unnatural deaths had occurred. The police left for Suchpur village where the incident had occurred, approximately 10 kms. away from the police station. The written complaint was received by the Investigating Officer at the place of the offence at 1.45 p.m. and was forwarded to Nanoor Police Station. This complaint was treated as an FIR. According to the learned Public Prosecutor, the GD entry only indicated that there was a case of unnatural death and that cannot be considered to be an FIR. Therefore, it was not produced in the Court.
26. PW 31, the Investigating Officer, has disclosed that five pages of the case diary in this case were missing. He has stated that according to the case diary the first information which was recorded by the previous Investigating Officer was between 8.05 a.m. and 9.40 a.m. on 27th July, 2000 in connection with Nanoor P.S. case no. 68 of 2000. PW 1, the eye- witness in this case and brother of the deceased Safique, is the first informant. He has stated that he lodged written complaint at Nanoor P.S. through the police who came on the spot after hearing about the occurrence of the deaths. He has stated that he handed over a written complaint to the police on that day. PW 2, who transcribed the complaint, has stated that he reached the place of occurrence at about 8/8.30 a.m. in the morning of 27th July, 2000. He has further corroborated the statement of the PW 1 that the written complaint, transcribed by him, was handed over to the police between 1.30 p.m. and 1.45 p.m. at the scene of offence. The FIR contains the names of 53 persons who were arraigned for trial. Not only the names of the persons but even their fathers' names and the villages these persons held from have been mentioned in the FIR. The learned Counsel for the appellants have submitted that it is impossible to believe that the FIR, which names not only the accused but also their respective fathers and their villages, is genuine. They have urged that it is unimaginable that a person, who has lost his brother and had allegedly witnessed a crime in which 11 persons were killed, could vividly remember not just the names of the accused but also their fathers' names and their villages. They have urged that since the FIR itself is not genuine, the entire trial against the appellants must fail.
27. It appears from the evidence on record that the police were alerted about the occurrence of the incident between 8 a.m. and 9.40 a.m. The inquest reports indicate that those inquests were conducted between 10.30 a.m. and 1.30 p.m. The police thus rushed to scene of offence after being intimated about the unnatural deaths on the basis of an entry in the General Diary which, in our opinion, cannot be considered as the FIR.
28. In our opinion, it could not be said that the document which was considered as the FIR by the prosecution was not the first information received regarding the incident with all its details. The information received at 8 a.m. only indicated that unnatural deaths had occurred in Suchpur village, due to which police rushed to the place and started investigation.
29. It has been argued by Mr. Moitra that when there is no explanation for the delay in filing the FIR, an adverse presumption must be drawn. He has also relied on the judgments of the Supreme Court in the case of Vimal Suresh Kamble vs. Chaluverapinake Apal S. P. & Another reported in (2003) 3 SCC 175 and in Tamilselvan vs. State Represented by Inspector of Police, Tamil Nadu reported in (2008) 2 C Cr LR (SC) 476. In the first case the FIR was lodged the day after the incident by a woman who was allegedly raped. In the second case, the FIR was lodged eight hours after the incident had occurred. The Court did not accept the prosecution case because there was ample time to improve it. The first information in his deposition had stated that he had not mentioned the names of the accused because he was shocked due to the assault. This statement was not accepted by the Court because the FIR was lodged eight hours after the incident. In our opinion, although the FIR has been lodged about seven hours after the incident it would be necessary to ascertain whether the evidence on record supports the case made out in the FIR before discarding the FIR totally, only because of the delay.
30. The incident occurred between 6 a.m. and 6.30 a.m. The palpable apprehension in the minds of the witnesses at that time when the incident occurred can be gathered from their testimonies. It took PW 1 sometime to gather his wits about him, find a scribe and dictate his complaint. The written complaint was handed over to the police at 1.45 p.m. The delay is not such that would compel the Court to question the genuineness of the FIR. Moreover PW 1 thus had time enough to mention the names of only those persons who were allegedly responsible for the crime from the mob which had gathered at the scene of offence.
31. Mr. Bhattacharya has then criticised the case of the prosecution by contending that none of the witnesses have been examined under Section 161 of the Cr.P.C. He submitted that the statements of the witnesses were recorded in the Court for the first time during their deposition. According to him this is fatal to the prosecution case as a new case was made out for the first time before the Court. He has relied on the judgment in the case of Yudhishtir vs. State of Madhya Pradesh reported in 1971 (3) SCC 436. In this case, the Court held that the witness was unreliable since there was variation between the statement made and recorded by the police and the testimony in the Court. He has further relied on the judgment in the case of Shingara Singh (supra). In this judgment the Supreme Court found that the change in the version of the witnesses recorded in the statements under Section 161 Cr.P.C. and deposition in Court was deliberate and not merely accidental or on account of a lapse in memory. These judgments, in our opinion, do not take the case of the appellants any further. PW 31, the Investigation Officer who took charge of the investigation on 22nd January 2001 has admitted in his cross-examination that he recorded only one statement under section 161 of the Cr.P.C., that of PW 14 on 28th February 2001. He has claimed in his evidence that he interrogated the villagers but did not record their statements under the aforesaid section. In the case of Zahira Habibullah H. Sheikh vs. State of Gujarat reported in (2004) 4 SCC 158 the Supreme Court has opined that it is not obligatory for the I.O. to record the statements of the witnesses under Section 161 Cr.P.C. but he may do so if he feels it is necessary. The interrogation of the witnesses must be prompt and there must be a truthful disclosure of facts by the person examined. In any event such statements are not to be given undue importance. They cannot be used as evidence but only for impeaching the credibility of a witness. Therefore the submission that the prosecution must fail because the statements of the witnesses were not recorded under Section 161 Cr.P.C. is without merit.
32. The evidence led before the Court by the prosecution in support of its case needs to be scrutinized. PW 1, who is the first informant, is the brother of one of the victims, Sk Safique. He has stated that he was riding a bicycle and following his brother Safique who was driving a tractor, which was hired out by him for cultivation, towards village Binera. The PW 1 was going to the Kuchutipara bazar. According to him, while proceeding along the morum road running through the lands of Bachhu Miya and Babu Miya, he found supporters of the Communist Party of India (Marxist) [hereinafter referred to as 'C.P.I.(M)'] party and the party flags fluttering in that place. When his brother, who was an activist of T.M.C. party reached there, the supporters of the C.P.I.(M) who were armed with lathis, tangis, ballams, muskets, revolvers and bombs pulled off his brother from the tractor and started assaulting him. Members of T.M.C. party who were cultivating the lands in the nearby fields reached the spot. The assailants decided that Safique and other villagers from the T.M.C. party should be taken to Suchpur village. PW 1 has stated that Safique and other persons were then confined in a club room in Suchpur village. Thereafter one Nitya Narayan Chatterjee - Appellant no. 23, Mohon Sk. - Appellant no. 32, Narayan Ghosh - Appellant no. 33 held a meeting near the club. Nitya Narayan Chatterjee who had a knife in his hand proclaimed that those who were brought to the club should be murdered. Acting on his instigation 10 persons, including Safique, were murdered on the spot. One Harai Sk. died on the way to the hospital. PW 1 has identified the accused persons in the dock. However, he was unable to identify Appellant nos.6, 8, 9, 16,19, 24, 29, 34, 35, 39, 42 and 43.
33. PW 1 has mentioned that one Khaleque Sk., Akbar Ali - PW16, Golam Hossain - PW 6, Samser Alam - PW 9 and Golam Mustafa - PW 4 have witnessed the incident. He has further testified that he handed over the written complaint to the police who had arrived at the spot after hearing of the incident. The complaint was transcribed by Abdul Karim - PW 2 because he was not in a fit mental condition to write the same. PW 1 was a witness to the seizure list which records the recovery of a pipe gun and blood stained earth.
34. In his cross-examination PW 1 has admitted that he and the other members of his family were supporters of the T.M.C. and that Safique was an active worker of the party. He has also admitted that the other witnesses who he has mentioned in his examination-in-chief were active supporters of the T.M.C. He testified that there were about 100 to 150 villagers in Suchpur village, most of whom were supporters of the CPI(M). He has spoken of the enmity between his brother Safique and the villagers of Suchpur due to political reasons. He denied that he had any knowledge about a case being filed against Safique and others over the same incident. The further cross-examination of this witness has brought out certain contradictions and omissions in his evidence, when contrasted with the FIR that he had lodged. He has categorically stated that nobody carried a revolver when the accused were taking away his brother and others. He did not see those persons assaulting the deceased by lathis, ballams or tangis when they were taking him towards Suchpur village. He has then stated that he was standing at a distance of about 100 cubits away from the place where the victims were first assaulted and then chased towards Suchpur village. According to him, about 50 to 80 persons had assembled at the place when the incident occurred. They surrounded his brother. However, he has admitted that he did not inform the police at that stage nor did he go home to inform his other brothers about the attack on Safique. He has conceded that it was for the first time that he had stated before the Court that a meeting was held by Nitya Narayan Chatterjee (Appellant no.23), Mohan Sk (Appellant no. 32) and Narayan Ghosh (Appellant no.33) near the club. He then agreed that he has disclosed for the first time before the Court that Nitya Narayan Chatterjee was armed with a knife. He has further deposed that he could not remember whether he has made any statement before the police during the investigation. He has admitted that he could not remember whether he had mentioned in his written complaint that Nitya Narayan had instigated the others to murder the victims. He has also disclosed that while his brother and others were chased by some persons who were known to him and others were strangers, none of them chased him.
35. The learned Counsel for the appellants have all submitted that there are too many omissions and contradictions in the evidence of PW 1 for him to be considered as a credible witness. They have submitted that PW 1, being the brother of the deceased Safique is an interested witness and his testimony contains embellishments and additions and, therefore, it ought to be discarded. They have also pointed out that the witness was unable to explain why the mob did not attack him and they have criticised the witness for his lack of courage in defending his brother.
36. It is true that there are certain omissions in the FIR. But these are not of great significance. Some statements have been made before the Court by PW 1 for the first time. For instance, there is no indication in the FIR that Nitya Narayan Chatterjee was armed with a knife or that he instigated the others to kill the victims. There is also no mention in the FIR that a meeting was held by Nitya Narayan and some of the other accused persons prior to the death of the victims. However, these statements which have been included in the testimony of PW 1 cannot be considered to be embellishments because he is related to one of the victims. The judgments cited at the bar reflect that an FIR need not be a graphic description of what exactly happened during the incident. It must contain the outline of the manner in which the incident occurred, the time and place of the occurrence in order to give the police a fair idea of what had happened and to set in motion the criminal justice system. However the statement about Nitya Narayan inflicting a stab wound appears to be an afterthought and therefore has not been believed by the Sessions Court. However, the rest of the testimony of PW 1 is not unbelievable. The conduct of PW 1 to refrain from trying to rescue his brother is not unnatural as it is obvious that he was overwhelmed with the circumstances and apprehensive of being targeted by the mob. This witness has candidly stated that he was not able to identify all the accused in Court, which is natural considering that the evidence was recorded five years after the incident.
37. In fact, the testimony of PW 1 has been corroborated by PW 4 who was cultivating his land which is situated between Nabasta and Suchpur villages. PW 4 observed that some persons of Dannyapara were being taken towards Suchpur village. He went to the club which was situated near the Suchpur village and found that some persons, including those from his village, had been brought there. He could not name all of them but four persons from his village were Sabur Sk., Rasul Box, Salamat Sk and Nizam. He has stated that there were several other persons who were detained in the club. He has named the other victims. According to him, a mob of around 200 to 300 persons had assembled there when he reached the place. He has stated that Nitya Narayan Chatterjee, Golam Sarowar, Mohan Sk., Abdul Samad, Narayan Ghosh held a meeting. He has further stated that Nitya Narayan Chatterjee dragged Safique out of the club room by clutching his hair and assaulted him with a knife near his ear. According to PW 4, Nitya Narayan Chatterjee then ordered others who were attending the meeting to kill those persons who were detained in the club room. He has stated that all the assembled persons killed the victims using lathis, stones, spears, ballams, etc. and left their bodies on the morum road. This witness claimed that after the incident, where 10 persons were killed on the spot and one succumbed to his injuries while on the way to hospital, he returned to his field and resumed cultivating his land. He has identified Appellant nos. 1, 5, 6, 10, 12, 13, 22 to 24, 29, 30, 32 to 35, 38 and 43. He has stated that these accused who he had seen in the dock were present at the place of occurrence.
38. In the lengthy cross-examination of this witness he has admitted that it was for the first time that he had disclosed before the Court that when he reached near the club house, he found about 200 to 300 persons had assembled there, and that Nitya Narayan Chatterjee, Golam Sarowar, Mohan Sk., Abdul Samad and Narayan Ghosh held a meeting. He has reiterated the manner in which Safique was dragged out of the club room by Nitya Narayan Chatterjee and assaulted near his ear with a knife. This witness has said that no identification parade was held in his presence and that he had identified the accused for the first time in the Court. He has then stated that he did not call out to other persons who were cultivating lands near his own land when he found that persons from his village were being taken away by the mob. He has expressed the fear that he experienced due to which he did not raise an alarm. He has truthfully said that Safique was his relative and was a member of the T.M.C. He has affirmed that the corpses were strewn all over the place but they were not visible from his land, though the club house was visible. He has also conceded that the he could not identify which appellant assaulted which victim.
39. The evidence of this witness has been criticised by both the learned Counsel for the appellants by contending that he was not a natural witness and his reaction after the incident was far from normal. They submitted that it was impossible to believe that after a ghastly incident, as claimed by the prosecution, had occurred PW 4 would have been in a frame of mind to return to his task of tilling his fields. Mr. Singh for the prosecution has cited judgments in support of his contention that the reaction of a witness to an incident will depend upon his frame of mind. In the case of Palwinder Singh vs. State of Punjab reported in AIR 2013 SC (Criminal) 1774 the Supreme Court has cautioned against the rejection of the testimony of an eye-witness merely because he did not make any attempt to rescue the deceased when there were four persons who were assaulting the deceased with dangerous weapons. The Court observed that in the present day and age one cannot expect an unarmed person to get entangled and suffer unnecessary harm by falling as "cheap prey" in the hands of criminals who were assaulting a person with a dagger and other weapons. The testimony of PW 4 is credible. He has been able to identify only some of the appellants. He has also mentioned the political rivalry between the victims and their assailants. Apart from this, he has corroborated the testimony of PW 1 with respect to the assault on Sk. Safique by Nitya Narayan Chatterjee with a knife. He has also identified the persons who held a meeting prior to the death of the victims. Therefore, in our opinion, his evidence which may contain some embellishments and omissions cannot be discarded wholly. It is true that he is a relative of Sk. Safique but that by itself would not cast a shadow of doubt on his testimony.
40. The next eye-witness examined by the prosecution is PW 6. He is a cousin of Sk. Safique who died on the fateful day. He has stated that he saw a stationary tractor between Suchpur and Nabasta villages when he was proceeding to Nabasta. He found 40 to 50 persons were making a noise near the tractor. He saw Safique was being assaulted with lathis. He has spoken about 10 or 11 persons being detained in a room and that some of the local leaders of the C.P.I. (M) were discussing something. These leaders included Nitya Narayan Chatterjee, Golam Sarwar, Mohan Sk., Narayan Ghosh, Badiutjamal, Manirul Haque, Benukar Mondal, Gopal Majhi. According to him, after the discussion these persons questioned why the persons detained were still alive. He has then described the manner in which Nitya Narayan Chatterjee brought Safique out of the room, clutching his hair and then stabbed him on his cheek. He has identified some of the accused in the Court. He has claimed that he has been interrogated by the Investigating Officer at Nanoor Police Station. He has denied that there was any dispute with respect to the land owned by Bacchu Miya and Babu Miya. He has admitted in his cross-examination that he had not been called for any test identification parade and that he had identified the accused for the first time in the Court.
41. The next eye-witness examined is PW 9, the uncle of the deceased Safique. He has stated that when he reached Suchpur village he heard a hue and cry. He reached the club of Suchpur village where he found a crowd of 100 to 200 people and heard that some persons had been detained in the club room. He claims to have seen Nitya Narayan Chatterjee bringing out Sk. Safique from the club room and stabbing him with a knife on his cheek. He has corroborated the evidence of the other eye witnesses that Nitya Narayan Chatterjee exhorted the others present to kill those who had been detained. He claims to have identified the victims. In his examination in chief he has stated that he was interrogated by the Investigating Officer earlier and that he had identified the accused for the first time in the Court room. In his cross- examination he has conceded that he did not go to the police station to inform them about the incident at Suchpur village, but that the police came to his house the next day. He has also denied having seen Safique being assaulted by 40 or 50 persons who were bringing him from the field. The suggestions put to him in the cross-examination that he had made certain statements to the police have been denied by him. He has agreed that all the accused were respectable persons of the village.
42. PW 10 is the cousin of PW 4. He has repeated the incident of Nitya Narayan Chatterjee having stabbed Safique with a knife and exhorting others to kill those who were detained in the club room. This witness in his cross-examination admitted that he never went to Suchpur village prior to 27th July, 2000, the date of the incident. He has admitted that he did not inform the police of the incident because he feared the consequences. He has denied that he had made any allegations against the accused to the police and admitted that he had named them for the first time in the Court.
43. PW 14 has stated in his evidence that he heard that somebody was confined in the club room. He was a member of the Revolutionary Socialist Party (R.S.P.) till the year 2000 and later joined T.M.C. He has admitted that he is related to the deceased Safique through marriage. He has also admitted that he was an accused in the Nanoor P.S. case no. 69 of 2000 and was released on bail. According to him, his statement was recorded by the police on 28th February, 2001. He has claimed that he informed the police in his statement that Nitya Narayan Chatterjee had stabbed Safique on the cheek. He has also claimed that he was not aware whether he is arraigned as an accused in several criminal cases which were suggested to him during the course of cross-examination. There are several discrepancies, omissions and additions in his deposition which have been revealed in the testimony of PW 31, the Investigating Officer who recorded his statement under Section 161 Cr.P.C. He is not a dependable witness and his evidence is not creditworthy.
44. PWs 15, 16, 17 and 18 are relatives of the deceased. They are not eye-witnesses to the incident. Therefore, their testimony is not of much use to the prosecution. PWs 3, 5 and 12 who are villagers have turned hostile. Their depositions do not aid the prosecution in any way. However, they have all stated that they have not been interrogated by the police with respect to the death of the 11 persons in Suchpur village.
45. Considering the evidence of the eye-witnesses, it is apparent that they have corroborated each other. In our opinion, the prosecution has been able to prove that Safique was assaulted initially with lathis after being dragged off his tractor. He was then marched off to a room which the prosecution claims was the Suchpur club house. Ten other persons were detained with him in the club house. A meeting was held in the club house by the appellant nos. 23, 1, 32, 33, 12, 13, 24 and 34. The act attributed to Nitya Narayan Chatterjee, i.e., appellant no. 23 who allegedly dragged Safique out of club room, clutching his hair and stabbed him on his cheek cannot be believed. This vital information was not disclosed in the FIR. He then exhorted the people to kill all the others who were detained. All the eye-witnesses have identified the accused in the Court for the first time. The identification of the accused by the prosecution witnesses in Court for the first time need not necessarily taint their testimony. In our opinion, the testimony of PWs 1, 3, 4, 6, 9 and 10 is credible. Despite the fact that most of them are related to the deceased Safique, it is not necessary to discard their testimony because they are either interested witnesses or related to the deceased. Their testimonies have been recorded five years after the incident. Therefore, it is possible that there would be some lapses in memory and some details would be omitted. There can be no doubt that these witnesses have deposed truthfully with regard to the main incident. However, the evidence of PW 14 is a little dubious. This witness was implicated in criminal offences in respect of an incident which occurred a few hours prior to the present one by the present appellants and was facing a criminal trial. The possibility of his testimony being tainted cannot be ruled out completely.
46. The learned Counsel appearing for the appellants have criticised the reaction of the witnesses of not having reported the incident to the police immediately although they claimed to be eye-witnesses. All of them have articulated the palpable fear that they experienced during that period. The conduct of a person who is seized with fear and dread could deviate from the normal behaviour. The evidence of the eye witnesses is thus trustworthy, dependable and acceptable. Therefore, it is possible to accept the explanation that it was because of their genuine apprehensions that they did not report the incident to the police.
47. It is now necessary to deal with the medical evidence which has been recorded. PWs 27, 28, 29 and 30 are the doctors who conducted the autopsy on the victims. The post mortem reports and the evidence of the doctors, reveal that most of the injuries sustained by the victims were apparently in the nature of lacerated wounds and multiple bruises over various parts of bodies of the victims. Many of the victims had sustained fractures of various parts of their limbs and faces, besides some had suffered intracranial haemorrhages. The doctors have opined that the injuries sustained by each of the victims were sufficient to cause death in the normal course.
48. It has been argued on behalf of the appellants that the inquest reports mentioned certain injuries like incised wounds and stab wounds whereas the post mortem reports do not record details of such injuries. It is further submitted that when there is a variance in the medical reports and ocular testimony, it is the medical report which will prevail. They have pointed out that although the eye-witnesses have claimed that each of the accused were armed with weapons like tangis, spears, muskets, bombs and rifles, lacerated wounds cannot be inflicted by such weapons. Therefore, the evidence of the eye-witnesses cannot be believed.
49. As noted earlier, ocular evidence has primacy over the medical evidence unless the account of the eye-witnesses is totally inconsistent with the other evidence on record, according to various pronouncements of the Supreme Court.
50. Surprisingly, none of these weapons have been recovered by the police; one more instance of the haphazard investigation. However, when the doctors have opined that the nature of injuries inflicted on the victims was such as would cause death of a normal human being, there is no reason to doubt the post mortem reports. Furthermore, the eye- witnesses have stated that they saw the dead bodies of the victims who were detained in the club house being scattered all over the morum road.
51. The evidence of the defence witnesses does not assist the appellants. They have mainly spoken about miscreants entering the village to commit dacoity at daybreak on 27th July, 2000. They have deposed that the miscreants exploded bombs due to which Anowar Sk was injured on his left leg. Nanoor P. S. case no. 69 of 2000 was lodged in respect of this incident according to defence witnesses. This case was then tried as Sessions Case no. 130 of 2002 by the Additional Sessions Judge, 1st Court, Suri, Birbhum. PW 14 was accused no. 18 in that case. The Sessions Court has acquitted all the accused in that case due to a lack of evidence and as it found that the version of the defence that the accused had been falsely implicated as a consequence of the Suchpur murder case (the present case) was plausible.
52. The learned Counsel for the appellants have argued that the statements of the accused which were recorded under Section 313 of the Cr.P.C. are vitiated because they have not been recorded in accordance with law. The incriminating material has not been put to each of the accused, therefore, their statements have to be discarded. Reliance has been placed on the decision of the Supreme Court in the case of Sujit Biswas (supra) where the Supreme Court has observed that the purpose of examination of the accused under Section 313 of the Cr.P.C. is to meet the requirement of the principles of natural justice. The accused may be asked to furnish some explanation as regards the incriminating circumstances against him and the Court is required to take note of such explanation. The circumstances which are not put to the accused in his examination under Section 313 of the Cr.P.C., cannot be used against him and must be excluded from consideration. Reliance has also been placed on the judgment in Ranvir Yadav vs. State of Bihar reported in (2009) 6 SCC 595, Lallu Manjhi (supra) and also on the case of Khairuddin & Others (supra) in support of the same proposition.
53. On examining the statements recorded under Section 313 of the Cr.P.C., it is evident that the criticism of the learned Counsel for the appellants with regard to these statements is not justified. Each of them has been questioned regarding the inculpatory and incriminating material against them and their explanation has been sought. Not only has the incriminating material in the deposition of the eye-witnesses and other witnesses, but the medical testimony also has been put to the accused. Therefore, this submission on behalf of the appellants is of no avail.
54. Now, turning to the testimony of the Investigating Officers PWs 31 and 32, it is discernible that the investigation in this case has been conducted in an extremely slipshod and perfunctory manner. It is manifest that right from the initial stages of the investigation, the approach of the police has been casual. PW 31 has stated that he took over the charge of the present case on 22nd January, 2001 from the earlier Investigating Officer. He examined two witnesses on 23rd January, 2001. He then examined one more witness Abdul Khalek, i.e., P.W. 14, and recorded his statement under Section 161 of the Cr.P.C. on 28th February, 2001. He has admitted that he had not bothered to ascertain the existence of any tractor or cycle at the place of offence. He has denied that PW 14 mentioned the name of any of the accused during his statement which was recorded under Section 161 of the Cr.P.C. The inconsistency and the contradictions in the deposition of PW 14 have been brought out through this witness. According to this witness the first statement of the witness as ascertained from the case diary which was recorded by the previous investigating officer was between 8.05 hrs. and 9.40 hrs. on 27th July, 2000 in connection with Nanoor P.S. case no. 68 of 2000, i.e., the present case. He was not able to deny whether the original FIR was suppressed and another FIR was filed. This is natural because he was not the investigating officer on 27th July, 2000.
55. PW 32 has admitted that he took over the charge of the present case on 10th July, 2001 from PW 31. He has admitted that he has not recorded the statement of any of the witnesses under Section 161 of the Cr.P.C. He has spoken of the omissions in the statements recorded by the first I.O. under Section 161 of the Cr.P.C. However he has admitted that he was not acquainted with either the handwriting or signature as they had not worked together. It was only after this witness was recalled for cross-examination that he disclosed that such statements had been recorded. This is contrary to the testimony of PW 31 who was his predecessor in this case. PW 31 had not mentioned that the first I.O. had recorded statements of the witnesses.
56. The next issue to be addressed is whether there was any meeting of minds for commission of the offence under Section 149 IPC. Considering the principles of law enunciated by the Supreme Court in the case of Subal Ghorai (supra) regarding an unlawful assembly and the scope of Section 149 of the IPC, there can be no doubt that there was an unlawful assembly at the place of incident. The common object which can be deciphered from the material on record was to kill those who had been detained in the Suchpur club. Although the meeting was held only by appellant nos. 23, 1, 32, 33, 12, 13, 24 and 34, it was appellant no. 23, i.e., Nitya Narayan Chatterjee who exhorted others to kill the persons detained. From the evidence on record it is obvious that the common object of the unlawful assembly was formulated on the spur of the moment to kill those who had been detained, although the exhortation or instigation came from Nitya Narayan Chatterjee and others. The witnesses have proved that the others present in the mob shared the common object though they may not have committed the overt act. As seen from the evidence on record appellant nos. 1, 5, 10, 13, 23, 32 and 38 have been identified by each of the eye-witnesses. The eye witnesses have mentioned that they were closeted in the club house for sometime with the victims. There is no manner of doubt that these persons have committed the crime and, therefore, the conviction in respect of these persons must be upheld.
57. As noted earlier, the testimony of PW 14 is tainted and therefore, his identification of the accused in Court is unacceptable. Thus the corroboration of the identification of any of the accused only by PW 14 cannot be accepted. This is because he was an accused in Nanoor P.S. case no. 69 of 2000 and was on bail when he deposed before the Court. In fact, PW 14 has incriminated all the appellants except appellant nos. 4, 7, 16, 20, 25, 26, 28, 29, 30, 31, 36, 42, 43 and 44. However, it is not possible to believe his testimony, bearing in mind the fact that he was on bail when he deposed before the Court. The possibility that his testimony was tainted in order to ensure that the case against him was not prosecuted diligently by the police cannot be ruled out. Therefore, his testimony with respect to the names of the accused he has identified in the Court is unbelievable.
58. None of the witnesses have stated that they actually saw any of the victims being killed by the appellants. They only saw the dead bodies being thrown out of the club house and scattered all over. Therefore, it is difficult to accept that all the appellants were involved in the crime. Unless the accused have been identified by at least two eye-witnesses whose evidence is credible, their presence at the scene of offence is doubtful. Appellant nos. 3, 14, 15, 36, 40 and 41 have been identified only by PWs 1 and 14, therefore, their involvement in the crime seems suspect. PW 1 is the only witness who has identified appellant nos. 25, 26, 37 and 44. This part of his testimony has not been corroborated at all regarding the presence of the aforesaid appellants. In our opinion, therefore, it is not possible to accept the finding of the trial Court in respect of these persons. As already indicated the testimony of PW 14 with respect to the identification of the appellants is suspect, therefore, it is not possible to accept that he has corroborated the testimony of PW 1 regarding the identification of appellant nos. 2, 3, 14, 15, 36, 40 and 41. The conviction of these persons without any other corroboration regarding their presence is unsustainable. Appellant nos. 9, 19 and 35 have been identified by PW 14 and one other witness. As mentioned earlier, it is not possible to accept the testimony of PW 14 with regard to identification or involvement of the appellants. Therefore, the conviction in respect of the aforesaid appellants must be set aside, as their presence in the unlawful assembly is doubtful. Appellant nos. 8, 16, 29 and 31 have been identified only by one witness, therefore, their presence at the place has not been corroborated by any other witness. The conviction against them is, therefore, set aside.
59. All the other appellants have been identified by more than one witness in the Court and they have spoken of their presence at the scene of offence. Their testimonies are credible. It is not necessary for the prosecution to prove the precise role played by each of them in the assault. They were all part of an unlawful assembly which had the common object to kill the victims. Notwithstanding the callous and careless investigation in this case, there is sufficient evidence on record which incriminates these appellants. The horrific and heinous crimes committed by them have been amply proved.
60. Thus, having regard to the evidence on record, it is not possible to accept the decision of the Sessions Court with respect to appellant nos. 2, 3, 8, 9, 14, 15, 16, 19, 25, 26, 29, 31, 35, 36, 37, 39, 40, 41 and 44. Their conviction is, therefore, set aside and they are acquitted by giving them the benefit of doubt. They shall be set at liberty immediately if not required in any other case.
61. As regards appellant nos. 1, 4, 5, 6, 7, 10, 11, 12, 13, 17, 18, 20, 21, 22, 23, 24, 27, 28, 30, 32, 33, 34, 38, 42 and 43 the conviction and sentence against them is upheld. It must be noted here that appellant nos. 30 and 44 have expired during the trial.
62. The appeal is disposed of accordingly without costs.
(Nishita Mhatre, J.) Subrata Talukdar, J.:
I am in respectful agreement with the decision rendered by Her Lordship, the Hon'ble Justice Nishita Mhatre.
I feel it necessary to add a few lines on the point of shoddy police investigation as already noticed by Her Lordship at paragraphs 3, 54 and
55. In this connection useful attention may be drawn to the observations of the Hon'ble Apex Court in Kernel Singh Vs. State of M.P. reported in 1995 SCC (CRI 977). The Hon'ble Apex Court was pleased to observe at paragraphs 5 and 6 as follows:-
"Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective (emphasis supplied). Any Investigating Officer, in fairness to the prosecutrix as well as the accused would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the 'chaddi'. That is the reason why we have said that the investigation was slipshod and defective."
vi. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury."
To the mind of this Court the above observations of the Hon'ble Apex Court are apt to the facts of this case. As correctly noticed by Her Lordship in spite of three Investigating Officers appointed to investigate the case the statements of all the witnesses were not recorded by the police. There was no seizure of weapons used in the assault nor any other relevant articles such as the tractor from which the first victim, Sk. Safique was abducted.
A designedly notable omission pertains to the preparation of the sketch map. The sketch map makes no mention of the club house at Suchpur village which was the place of occurrence and mentioned by PWs 1, 4, 6 and 9.
Among the other notable omissions in the investigation is the designed failure on the part of the police to take statements from witnesses who signed the inquest report. No test identification parade was held. The photographs taken at the inquest were not marked as exhibits. The charge sheets were submitted beyond time thereby enabling the accused persons to take statutory bail in spite of the ghastly nature of the crime.
It is relevant to mention here the portions of the evidence adduced by the second Investigating Officer in the case, PW31:-
"I did not investigate to find out the existence of tractor. I did not find any cycle during my investigation. It is not mentioned in the C.D. the distance between Suchpur and various other villages, namely Tupsara, Dhakuria, Hossainpur, Nabasta, Takora, Dannyapara, Basapara, Purandarpur nor there is any note regarding the direction of the said villages."
PW 31 in his cross-examination further states:-
"I recorded only one statement u/s 161 CrPC of witness, Abdul Khaleque on 28th February, 2001 (emphasis supplied). That statement is a one page statement.
The first statement of the witness, as per C.D., was recorded by the previous I.O. in between 08:05hrs to 09:40hrs on 27th July, 2000 (emphasis supplied) in connection with Nanoor P.S. case no.68/2000 dated 27th July, 2000."
To a categorical question on whether PW31 proceeded to the alleged place shown as PO, that is the connecting point of Suchpur and Nabasta villages by the side of 'morum' road his answer is as follows:-
"It is not noted in the CD that I visited the aforesaid villages as suggested.
Not a fact that my entire investigation was done in a perfunctory manner."
The third I.O. of the case, PW32 in his cross-examination says "I did not record 161 CrPC statement of any witness."
PW32 is recalled as a witness vide order dated 24th September, 2007 as per prayer made by the accused persons and then proceeds to give roving evidence in respect of each of the PWs 1,2,6,9,10 and 14. The substance of the evidence of PW32 on recall is that none of the PWs mentioned above stated the material versions of their evidence recorded in Court before the Investigating Officer.
It is anachronistic on the part of PW32 to state on recall that the material part of the evidence given by each of the PWs in Court were not stated before the I.O. when he himself has gone on record in his cross- examination to the effect that no statements of any witnesses under section 161 CrPC were recorded by him.
PW32 contradicts himself in his evidence by first stating in his cross-examination on the 8th of May, 2007 that "the first I.O. of this case S.Roy Ghatawal never worked under me or with me and as I am not acquainted with his handwriting and signature."
However, on recall on the 24th September, 2007 PW32 deposes as follows:-
"PW1 Sk. Rafique was examined by the then I.O. S.Roy Ghatawal and I know (emphasis supplied) his handwriting."
This Court is therefore required to fathom the reason behind the need to recall the Investigating Officer for giving evidence after completing the evidence of the PWs. A reason which stands out, possibly among others, veers to the attempt to demolish the evidence of the PWs by recalling the Investigating Officer to place further evidence to discredit or to throw a shadow of doubt on the evidence of the PWs. The unhappy but obvious conclusion is that both the prosecution and the police were working in tandem to ensure that the guilt of the accused fails to withstand judicial scrutiny.
It is noticed by this Court that the recording of statements of PWs was either not made at all or made at such a distance of time so as to discredit the prosecution story. The Investigating Officer was called upon to give evidence on recall in respect of each of the PWs which, was presumably done to bolster up the defence version. For reasons needless to elaborate such acts of commission and omission by both the police and the prosecution acting in tandem were designed to become a happy hunting ground for the defence.
Additionally, the medical evidence adduced by the three doctors are in the same mould and could not inspire the confidence of this Court having regard to the backdrop of the crime and the nature of injuries suffered causing death which acutely appear from the inquest reports. It is relevant to mention here the evidence of one of the Doctors PW27 who says "We did not find any punctured or penetrating wound in the dead bodies of those persons."
PW30, another Doctor deposes as follows:-
"Before preparation of the PM report we have gone through the inquest reports. In Exbt.24 there are some writings by another person. I cannot say who wrote those reports. None can modify the contents of the P.M. report."
Then says, "I cannot say whether any person can insert in the P.M. report or not. 'Boulder' is a hard, blunt and heavy object. The 'Boulders' are available in different size and safe. I cannot say if the snaps of the dead bodies were taken or not. We did not mention (emphasis supplied) about any incized wound or punctured/penetrating injuries in respect of the dead bodies for which I have prepared the P.M. report."
In comparison, the inquest report of one of the deceased, Ali Hussain carried out by PW 25 reads as follows:-
"I, Inspector Shimil Kumar Sarkar, am working at Labhpur P.S. under the instruction of O.C. Labhpur P.S. and O/C Nanoor, went to a Brick Kiln, commonly known as Mohan's kiln (country kiln) to the western side of Suchpur Nabasta Morram road at 10.00 a.m. on 27.7.2000 under the instructions of O.C. Nanoor P.S. I started to prepare the Surathal report of a Muslim youth aged about 25 years in the presence of the witnesses named beside. I saw the dead body lying on his back with head towards the east and legs towards the west on the land of Mohan's Country brick kiln. Complexion dark. Hair black but colour seen. Marks of deep injuries seen on the head, left ear lobe, right legs, both hands. Blood seen on the face. Eyes half closed, mouth open, teeth (illegible) out, fist closed medium built, wearing red full shirt and light blue lungi I properly (emphasis supplied) examined the dead body by turning it upside down. No other marks of injury is evident.
From preliminary investigation it is revealed that on 27.7.2000 the deceased with few of his men was going to his land. It was around 8.30. At that time there was an alteration between C.P.M. and T.M.C. In the said incident the deceased received injury by a sharp weapon and along with his other companions he too died on the spot. Even then in order to find out the actual cause of death, the body is sent for P.M. to Bolpur S.D. Hospital under the guard of constable 848 Uttam Kr. Roy.
The inquest report of another dead body prepared by PW24 reads as follows:-
"I, Sub-Inspector Niranjan Biswas Nanoor P.S. along with constable Benu Kar Roy going to the Shat Molla Pukur Suchpur Nabasta granel Road, and as per the order of O.C. Nanoor P.S. started to prepare Surathal report of the aforesaid deceased whose age would be 32 approximately. The deceased was seen lying on his back in the side of paddy field beside the brick kiln of Mohan Sheikh, by the side of Suchpur Nabasta granel road.
The deceased was wearing white full shirt, terry cotton check lungi mark of injury by sharp weapon on the head. Complexion dark, light built, marks of injury on various places of the body. Head towards south and legs towards north. Dead bodies lying scattered on various places. Fingers of hands closed, two eyes closed, mouth open, photograph of dead body taken."
The inquest reports are found to speak of critical penetrating/incisive injuries with a sharp weapon and such observation is noticeably absent in the post mortem reports. This Court therefore had to rely on the ocular and direct evidence of the PWs for arriving at a just appreciation of the facts.
For all the above mentioned circumstances the task of the Appellate Court became increasingly onerous otherwise, as observed by the Hon'ble Apex Court in Dr. Krishna Paul and Anr. Vs. State of U.P. reported in 1996 SCC (CRI 249):-
"In a case of defective investigation , it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to falling in the hand of an erring Investigating Officer."
It is useful to refer to the decision of the Hon'ble Apex Court in Ganga Singh Vs. State of M.P. reported in 2013 (7) SCC pg.278 (paras: 17 & 18) at this juncture :-
"17. We are also unable to accept the submission of Mr. Mehrotra that the investigation by the police is shoddy and hasty and there are defects in the investigation and therefore benefit of doubt should be given to the appellant and he should be acquitted of the charge of rape. The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt. In the present case, as we have seen, the evidence of PW5 as corroborated by the evidence of PW2 and the FIR established beyond reasonable doubt that the appellant has committed rape on PW5 and thus the appellant is not entitled to acquittal."
In a recent decision reported in 2013 (1) S.C. pg.627 in the matter of Hema Vs. State, through the Inspector of Police, Madras, the Hon'ble Apex Court has elucidated the role of Courts in respect of cases where defects in investigation are palpable. I feel it necessary to quote in extenso the following paragraphs from Hema's case which are relevant in the present context:-
"10. It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C.Muniappan and Others vs. State of Tamil Nadu, 2010 (9) SCC 567, the following discussion and conclusion are relevant which are as follows:-
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there in any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth.
Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.
11. In Dayal Singh and Others vs. State of Uttaranchal, 2012 (8) SCC 263, while reiterating the principles rendered in C.Muniappan (supra), this Court held thus:
"18. ...Merely because PW3 and PW6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
12. In Gajoo vs. State of Uttarakhand, 2012(9) SCC 532, while reiterating the same principle again, this Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court. Since, the Court has averted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases:
20. In regard to defective investigation, this Court in Dayal Singh v.
State of Uttaranchal while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 280-83, paras 27-36) "27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held: (SCC p.l657, para 5) '5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party...............................
13. It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions etc., it is the obligation on the part of the Court to scrutinize the prosecution evidence de hors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth.
Having made the above observations I agree with the decision rendered by Her Lordship.
(Subrata Talukdar, J)