Calcutta High Court (Appellete Side)
Sri Surinder Singh & Ors vs The State on 28 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. No. 84 of 1993
Sri Surinder Singh & Ors.
Versus
The State
For the appellants : Ms. Minoti Gomes
Mr. Ainul Haque
Amicus Curiae : Mr. Bibaswan Bhattacharya
For the State : Mr. Avik Ghatak
Heard on : 28.11.2017
Judgement on : 28.11.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 31.3.1993 passed by the learned Additional Sessions Judge, 2nd Court, Howrah in S.T. Case no. VIII(7)/1992 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life.
Prosecution case, as alleged, against the appellants is to the effect that on 25.5.1989 at around 9.30 p.m. the victim Biswanath Shaw came to his house running and searched for a lathi. His wife Mamta Shaw, P.W 1 herein, was present at the house at that time. He could not find any lathi in the house and as he was leaving the house in an agitated condition, his wife, Mamta tried to resist him, but failed. Hence she rushed after him. When the victim reached in front of a club near wireless quarter, the accused/appellant Surinder caught hold of him and the appellant Balbant and another person who was subsequently identified as Manoj Tiwari assaulted him with knife. He tried to free himself and finally ran away. After running for some distance he fell down in front of the Pioneer factory. Mamta raised alarm and hearing the alarm local people assembled at the spot. They lifted the victim and proceeded to Uttarpara Government Hospital. Mamta accompanied them and from the hospital went to Bally P.S and lodged complaint which was registered as Bally P.S Case no. 145 dated 25.5.1989 against Surinder, Balbant and another unknown assailant under section 326/34 IPC. In the meantime the victim was declared dead in the hospital and section 302 was added.
In course of investigating, P.W 1 Mamta identified the appellant Manoj Tiwari in TI parade and charge sheet was filed against the appellants under section 302/34 IPC.
Case was committed to the court of sessions and transferred to the court of Additional Sessions Judge, 2nd Court, Howrah for trial and disposal.
Charge was framed under section 302/34 IPC. The accused persons pleaded not guilty and claimed to be tried.
In the course of trial, the prosecution examined 10 witnesses to establish its case and exhibited a number of documents.
The defence of the appellants were one of innocence and false implication.
In conclusion of trial, the trial judge by judgment and order dated 31.3.93 convicted and sentenced all the appellants as aforesaid.
Ms. Gomes, learned Advocate appearing for the appellants submits that P.W 1 and P.W 5 who claimed to be eye-witnesses do not inspire confidence. It is noted in the inquest report that P.W 1 came to the place of occurrence after the incident. Hence, it cannot be said that she was an eye- witness of the incident. Manoj Tiwari was known to P.W 1 from before and, therefore, identification of the said appellant in course of T.I parade is of little relevance. Presence of P.W 5 who was a tenant of the victim is highly doubtful as there is no evidence to the distance between the place of occurrence and the residence of the victim. It is also submitted that although P.W 1 was in the hospital where the victim was declared dead, such fact is significantly absent in the FIR lodged by her. Although the incident occurred in a residential locality around 9.30 p.m., no local witness who resided in the neighbourhood has been examined and this fact gives rise to an adverse inference against the prosecution case.
Mr. Bhattacharya, learned Advocate who was requested to appear as Amicus Curiae, supported the contentions of Ms. Gomes, as aforesaid.
On the other hand, Mr. Ghatak, learned Advocate appearing for the State submits that P.W 1 and P.W 5 are the most natural witnesses who had seen the assault on the victim. Minor contradiction with regard to the roles of the appellants in the assault of the victim would not render their version improbable. They have explained the circumstance in which they were present at the place of occurrence and their ocular version is supported by the medical evidence. Hence, the appeal is liable to be dismissed.
Judged from the rival submissions of the parties, it appears that the prosecution case squarely rests on the shoulders of two eye-witnesses namely P.W 1 and P.W 5.
Let me, therefore, examine the evidence of the said witnesses to determine as to whether their version inspires confidence or not. P.W 1 is the wife of the victim who deposed that she was married to the victim ten years ago. After marriage they were residing as husband and wife at 18/1, Dafar Street in the day time and at night they lived in the railway quarters at Konnagar. The railway quarter was occupied by one Tiwari who is a colleague of her uncle. The appellants used to threaten her because she was residing at the railway quarter at Konnagar during night. Her husband used to sell cinema tickets unauthorisedly. On 25.5.89 her husband had gone out of the house at 10 a.m. and returned home at 12 noon for lunch. Again he went out at 4 p.m. He returned home running at 9.30 p.m. He was searching for a lathi but could not find one. She tried to resist him but failed. He pushed her aside and left the house. She followed him and when she reached in front of club near the wireless quarter, she found that Surinder had caught hold of her husband and accused Balbant Singh and another whom she could not name were assaulting her husband by knife.
Her husband freed himself and tried to run away but after running a distance he fell down in front of the Pioneer factory. The accused persons chased him and assaulted him there also. She raised alarm. Jitendra Jadav, Suklal Show and Rajendra Jadav, Salim and others arrived at the spot. They lifted her husband on a lorry to proceed to Uttarpara Hospital. She disclosed the names of the assailants to the persons who accompanied her to the hospital. Her husband was taken inside the hospital. She went to the Bally Police Station along with Suklal Shaw and reported the incident. Her statement was recorded and explained to her and she put her signature thereon. In the morning, Jagadamba Tewari informed her that her husband had expired on the way to the hospital. Police arrived at their house. Police seized bloodstained sari under a seizure list. Police also seized wearing apparels of the husband. She attended the Test Identification Parade and identified the accused Monoj Tewari.
In cross-examination, she denied that she is the third wife of Biswanath. She stated that wireless quarter is situated within Railway Colony. The boundary of wireless quarter is adjacent to Lilluah Station Road which is fenced by iron railing with some gaps. During the life time of her husband, she used to go to the market. She did not disclose the physical features of the unknown persons at the time of lodging the First Information Report. She stated that the accused was known to her by face but she did not know his name. The surnames of Surinder and Balbant were not known to her. She did not disclose in the First Information Report that the accused persons were assaulting her husband by fists and blows or by means of kicks.
P.W.5 is a tenant of Biswanath. He deposed that he was present in the house at about 9.00 p.m. At that time, Mamta, wife of Biswanath, came out of her house and raised alarm. On hearing alarm, he also came out. He went inside the wireless quarter. On reaching there, he found that Surinder Singh caught hold of Biswanath and Monoj Tewari and Balbant Singh assaulted him with knife. They were identified. Biswanath pressed his hand on his injury and tried to run away. The accused persons followed him. Mamta also followed them raising alarm. Biswanath fell down in front of Pioneer factory and the accused persons reached there and they murdered Biswanath by chopping him. Mamta took Biswanath on her lap and was crying. People arrived at the spot. Biswanath was placed in a lorry and was taken to Uttarpara Hospital. Mamta was also in that lorry and went to the hospital. Thereafter he went back home. On the next date in the morning, he heard from Rama Pandit that Biswanath had died.
In cross-examination, he stated that he was a tenant under Biswanath for last six years. He stated to police that Surinder caught hold of Biswanath and Balbant and Monoj were assaulting him. He failed to remember whether he stated to the police that Surinder and Balbant were assaulting Biswanath by fists and blows and Monoj stabbed Biswanath. He went to bed at 2.00 a.m. He met police on the next date at 10/11 a.m. P.W.2 was a Medical Officer attached to Uttarpara General Hospital at that time. He was on night duty. He failed to recollect the incident which occurred in 1989 without refreshing his memory with reference to the injury report. He could not identify the person who produced the injured victim before him. He was declared hostile.
In cross-examination, he stated that the patient was examined by him immediately after production and he was declared dead.
P.W.3 was S. I. of Police attached to Uttarpara Police Station on 25.5.1989. He received a message from Medical Officer from Uttarpara General Hospital that a patient named Biswasnath aged 38 years from 18/1, Dafar Street, Lilluah Howrah was brought to Uttarpara Hospital by Mamta Shaw. On the basis of the said report, he started Uttarpara Police Station U. D. Case No.72 dated 25.5.1989. In the course of investigation of the said case, he held inquest over the dead body of the victim. He proved the inquest report, Ext.1. Parbati Shaw wife of the elder brother of the deceased and Sarat Kumar Bishal, a neighbour of the deceased were also present. He sent the dead body under a challan for post mortem examination through Constable No.2214 Niranjan Singh of Uttarpara Police Station. The said challan was marked as Ext.2.
P.W.4 is the Constable who brought the dead body to Sreerampore Hospital for post mortem examination. He identified the dead body before the Doctor.
P.W. 6 is the medical officer attached to Sreerampore Walls Hospital who held post mortem examination of the victim. He noted the following injuries :
i) Penetrating and incised injury on the abdomen, four in number, one at the right iliacrests and another on the right side of the abdomen, another on the left side of the abdomen and another on the thoraco of abdomen region. On further dissection I found the penetration of the liver, stomach and intestine coils Death in my opinion was caused due to the effect of the stab injuries stated above ante-
mortem and homicidal in nature.
The post mortem report was marked Ext. 3.
P.W.7, Parbati Shaw is the sister-in-law of the victim. She was present at the time of inquest and signed on the inquest report.
Similarly, P.W.8 was a Constable attached to Uttarpara Police Station. He signed on the seizure list prepared in respect of the seized of wearing apparels of the victim, Ext.4/1.
P.W.9 is the Judicial Magistrate posted at Howrah at the material point of time. He held Test Identification Parade where P.W.1 identified Monoj Tewari. P.W.1 stated before him that the said person had stabbed her husband three or four times in his abdomen in her presence while Surinder and Balbant caught hold of her husband. She was a next door neighbour of the suspect and he is known to her for long.
P.W.10 is the Investigating Officer in the instant case. He recorded the statement of P.W.1 and drew up First Information Report. He went to Uttarpara General Hospital and was informed that the victim had died at the hospital. He prepared sketch map of the place of occurrence with index. He seized blood stained sari of P.W.1 under a seizure list, Ext.7. He examined witnesses under Section 161 of the Code of Criminal Procedure. He arrested the accused persons. He seized the wearing apparels of the deceased under a seizure list, Ext.4. He submitted prayer for holding T. I. Parade in respect of the accused Monoj Tewari on 1.7.1989. He finally submitted charge sheet.
In cross-examination, he stated that he has not mentioned holding No.18/1, Dafar Street in the sketch map. He did not have any knolwedge about the topography of the place of occurrence. He did not examine any witness save and except Mamta and Sudhir Roy. Dafar Street is located to the South of Lilluah Rail Colony.
The evidence of P.W.1 and P.W. 5 have been criticised on the premise that as there is no clarity as to the distance between the residence of the victim Biswanath and the place of occurrence which took place in front of the club inside the wireless quarter, it is unlikely they were present at the place of occurrence. I would have otherwise acceded to such plea but for the explanation offered by the said witnesses as to the circumstances under which they followed the victim to the place of occurrence. P.W.1, the wife of the victim, stated that the victim had come home in an agitated conditions around 9.00 P.M. on the date of occurrence. He was searching for a lathi but failed to find one. When he was trying to go out, P.W.1 resisted. She was pushed aside and the victim left the house. Naturally, as a concerned spouse she rushed after the victim and witnessed the incident in front of the club in the wireless quarter. Similarly, P.W.5, a neighbour hearing the alarm of P.W.1 followed her and witnessed the incident.
The aforesaid witnesses, therefore, have clearly explained the circumstances which led them to the place of occurrence and I am, therefore, unable to accept the submission on behalf of the appellants that they are unnatural witnesses and in all probability were not present at the place of occurrence. It is contended that in the inquest report (ext. I) P.W 3 noted that P.W 1 had arrived at the place of occurrence after the incident. Hence, P.W 1 cannot be said to be an eye witness. I am unable to accept such contention as the contents of the inquest report cannot be considered as substantive evidence as to the genesis of the incident. Moreover. P.W 1 was not even present at the time of holding inquest on the dead body of the victim. Hence, such narration cannot be taken as a circumstance to discredit her evidence in court.
Evidence of the eye witnesses have also been criticised on the premise that there are variations as to the exact roles played by the appellants in the assault of the victim as per their depositions in Court and their earlier statements to the police. I have examined the evidence of the said witnesses in that perspective and I find that the variations are minor in nature. The consistent versions of the witnesses are that all the persons participated in the assault and stabbed the victim. The fact that the appellants were armed and had acted in unison clearly shows that they shared a common intention of causing death of the victim and, therefore, I am of the opinion that the minor variations with regard to the exact roles in the assault of the victim cannot be a ground to disbelieve the prosecution case.
On the other hand, the ocular version of assault by knife by the appellants is corroborated by the autopsy surgeon who stated that the victim suffered four incised injuries in the abdomen resulting in his death.
Hence, I am inclined to believe the evidence of the eye witnesses with regard to the assault on the victim which is corroborated by medical evidence.
It has been submitted that the prosecution case suffers from patent infirmity as P.W.1 who was present in the hospital had reported that the victim had not died when she lodged the complaint at the police station. I do not find any contradiction in the prosecution case in this regard. P.W.1 had seen the victim mercilessly assaulted by the assailants in her own eyes. She took the victim in a lorry along with local people to the hospital. It is in her deposition that while the victim was brought in the hospital for treatment, she left for the police station and her statement was recorded at the police station by P.W.10. It is, therefore, likely that the P.W.2 at that juncture was under an impression that her husband had not died when she had lodged the complaint. Hence, omission in the First Information Report to mention the fact that the victim does not militate against the truthfulness of the prosecution case in any manner whatsoever.
Finally, it has been argued that the identification of the appellant Monoj Tewari in this case is fraught with infirmities. P.W.1 admitted that she was a next door neighbour and that she had seen Monoj while she gone out to the market. However, P.W.1 clarified that although she knew Monoj by face, she was unaware of his name. P.W.1 is a housewife and, therefore, it is not possible for her to know the names of all the persons residing in the locality although she may know them by face. Hence, the inability of P.W.1 in naming Manoj in the First Information Report but identifying him in the Test Identification Parade cannot be an unnatural conduct on her part.
In view of the aforesaid discussion, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt.
Conviction and sentence of the appellants are upheld. Bail bonds of the appellants are cancelled and they are directed to surrender before the trial court and to serve out their sentences in accordance with law. In the event they fail to do so, the trial court shall resort to appropriate coercive measures to apprehend the appellants and execute their sentences in accordance with law.
The period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon them in terms of section 428 Cr.P.C.
The appeal is, accordingly, dismissed.
I record my appreciation for the able assistance rendered by Mr. Bhattacharya, learned advocate as amicus curiae in disposing of the appeal.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree (Rajarshi Bharadwaj, J.) tkm/as