Calcutta High Court (Appellete Side)
Sk. Kalo @ Rabial & Ors vs The State Of West Bengal on 21 September, 2017
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 796 of 2008
Sk. Kalo @ Rabial & Ors.
Vs.
The State of West Bengal
For the appellants : Mr. Sekhar Basu, Ld. Sr. Advocate
Mr. Kallol Mondal, Ld. Advocate
Mr. Krishan Ray, Ld. Advocate
Ms. Amrita Chel, Ld. Advocate
Sk. Istiaque, Ld. Advocate
For the State : Mr. Ranabir Roy Chowdhury, Ld. Advocate
Mr. Mainak Gupta, Ld. Advocate
For the de facto complainant : Ms. Priyanka Dutta, Ld. Advocate
Ms. Paulomi Banerjee, Ld. Advocate
Heard on : 30.06.2017, 04.07.2017, 07.07.2017, 10.07.2017, 12.07.2017,
13.07.2017, 14.07.2017
Judgment on : 21.09.2017
Md. Mumtaz Khan, J. :
Appellants have preferred the instant appeal assailing the judgment, order of conviction and sentence dated November 18, 2008 and November 19, 2008 respectively passed by the Ld. Additional Sessions Judge, Fast Track First Court, Arambagh, Hooghly, in Sessions Trial No. 29(7) of 2008 arising out of Sessions Case No. 45 of 2006. By virtue of the impugned judgment appellants along with one Sk. Md. Hossain Gora were convicted for commissioning of the offence punishable under Section 148/448/302/149 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and fine of Rs. 25000/- in default to suffer rigorous imprisonment for another one year for the offence punishable under Section 302 read with Section 149 IPC, rigorous imprisonment for 3 years each and fine Rs. 1000/- each in default to suffer imprisonment for six months for the offence punishable under Section 148 IPC and to suffer rigorous imprisonment for one year each for the offence punishable under Section 448 IPC with a direction for all the substantive sentences shall run concurrently with usual set off under the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) subject to the provisions of Section 433A Cr.P.C.
The case of the prosecution, in brief, is as follows:-
On May 25, 2006 at around 8 p.m. appellants along with other 15/20 miscreants of the village in furtherance of their common object forcibly dragged the victim Johur Ali from his house and took him near a canal while beating him on the way by bamboo stick, wooden stick, kicks and blows. While taking the victim, appellants and the miscreants were threatening that they will end his political activities and kill him and did not pay any heed to the plea of mercy by sons, daughter and wife of the deceased who were following them rather they were also threatened by them. Thereafter, on hearing cries when the villagers came running, those miscreants fled away therefrom. Due to assault, victim sustained injuries on his person and became unconscious and on arrival at the Arambagh hospital he was declared brought dead.
On the basis of the information received from the Arambagh Sub- Divisional hospital on May 25, 2006 at 23.15 hrs. about death of the victim, A.S.I, Buddhadev Sarkar started Arambagh P.S. U.D. Case No. 117 dated May 25, 2006 (Ext.13) after making necessary G.D. Entry and on the basis of the said U.D. Case, P.W.15 held inquest over the dead body of the victim on May 26, 2006 at 10.05 a.m. at the Arambagh SD hospital in presence of P.W.1, P.W.5 and P.W.8 and prepared the inquest report (Ext.2). The dead body of the victim was, thereafter, sent for post mortem examination through the constable No. 2622, Bidyut Nandi along with dead body chalan (Ext. 14).
Post-mortem examination over the dead body of the victim was also conducted by P.W.20 on the basis of the said U.D. Case on May 26, 2006 at 01.10 p.m. being assisted by P.W.19.
On the same night at 01.35 hours (May 26, 2006) P.W.1, son of the victim, lodged a written complaint (Ext.1) scribed by P.W.11 before the Inspector-in-Charge Arambagh P.S. and accordingly on the basis of the said written complaint P.W.15 started Arambagh P.S. Case No. 88/06 dated May 26, 2006 under section 147/148/149/448/302 IPC against the appellants and 15/20 unknown others and himself took up investigation of the case and thereafter on his transfer it was investigation by P.W.18 who after completion of investigation submitted charge sheet being No. 111 dated August 19, 2006 under Section 147/148/149/448/302/120B IPC against the appellants.
On October 27, 2006 charge was framed against the appellants along with Sk Md. Hossain Gora, since deceased, under Section 148/448/302/149 IPC and in addition to that under Section 120B IPC against the appellant Madhab Dewan, Sk. Asgar Ali, Sk. Babulal Ali, Sk. Golam Ambia, Uday Dhara and Haru Hazra and after they denied their involvement in the crime, trial commenced.
Prosecution examined 20 witnesses and also produced and proved certain documents and thereafter on completion of trial and after examination of the appellants as also Sk. Md. Hossain Gora, since deceased, under Section 313 Cr.P.C. learned Trial Judge passed the impugned judgment.
It was submitted by Mr. Sekhar Basu, Ld. Senior Counsel appearing for the appellants that the impugned judgment, order of conviction and sentence was not sustainable in law as FIR was doubtful being anti- timed, anti-dated, tampered and fabricated one. According to P.W.15, FIR was received after the inquest but the inquest report is completely silent about the lodging of FIR which goes to show that the FIR which was produced before this Court and on the basis of which investigation took place was not the original FIR.
According to Mr. Basu, FIR was also silent with regard to the alleged demand of money, source of light or use of any arm though the same subsequently found place during trial which is nothing but an after thought. Besides the above, there were also contradictions in between the FIR and the evidence adduced by P.W.1.with regard to the number of persons involved in the alleged crime which raises doubt with regard to the prosecution story.
According to Mr. Basu, inquest report projected story of family feud between the deceased and Sk. Asgar Ali and it had been mentioned therein that the deceased was returning home after offering namaz whereas the FIR states that the deceased was abducted from his house. Even the version made out in the inquest report is substantially different from the version canvassed in the FIR although inquest was held after 8½ hours after the alleged FIR.
According to Mr. Basu, there was doubt with regard to the place of occurrence as according to the inquest report deceased was allegedly thrown away beside one Taru river whereas from the evidence of witnesses it appears that the same occurred on the land of Amalendu Pal but the rough sketch map does not reflect any such area. According to P.W.1 accused persons assaulted his father near a shallow machine but during investigation P.W.15 could not find any such shallow machine and the topographical description given by the witnesses with regard to the place of occurrence is completely contradictory to each other and the rough sketch map.
According to Mr. Basu, there was a doubt with regard to the identification of the accused persons as there was no proof of existence of electricity at the material point of time nor any such torch light, electric light or hurricane was seized by the investigating officer and even during investigation the alleged eyewitnesses did not state to the investigating officer with regard to the availability of any such light. There was also doubt with regard to the search and seizure of the alleged weapon of offence namely the lathis.
According to Mr. Basu, the evidence of P.W.1 to P.W.8 and P.W.12 and P.W.14, the reported eye witnesses, was not believable and there was a doubt with regard to the credibility of their evidence adduced before the court due to several contradictions on vital points and the motive with regard to the alleged incident was also not proved beyond doubt. Mr. Ranabir Roy Chowdhury, Ld. Advocate appearing for the state submitted that there was no doubt with regard to the place of occurrence as the incident started from the courtyard of the deceased where from he was dragged and taken to the land of Amalendu Pal where it got terminated and the canal is situated beside the land of Amalendu Pal which is very much evident from the rough sketch map.
According to Mr. Roy Chowdhury eyewitnesses namely P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 have fully corroborated the FIR and the same also found corroboration from the independent eyewitnesses P.W.7 and P.W.8, the co-villagers, who saw the incident from in front of their poultry farm till land of Amalendu Pal and there was no doubt with regard to the place of occurrence.
According to Mr. Roy Chowdhury eyewitnesses had clearly stated about the source of light in which they identified the appellants and the instrument used in the commission of the offence and the injuries sustained by the victim was also proved by the eyewitnesses and duly corroborated by medical evidence. According to him the motive behind the gruesome murder of the victim for not meeting the demand of the appellants towards payment of money was also proved by the prosecution witnesses.
According to Mr. Roy Chowdhury, the reported contradictions as stated by the ld. advocate for the appellants, are minor not going into root of the case taking into consideration the entire facts and circumstances nor prosecution case will suffer due to fault of the investigating officer. Mr. Roy Chowdhury relied upon the decisions in the matter of Balraje @ Trimbak v. State of Maharashtra (SC) reported in 2010(6) SCC 673, State of Maharashtra v. Ramlal Devappa Rathod (SC) reported in 2015(15) SCC 77, Fazar Ali v. State of Assam (SC) reported in 2017(4) JT 400, Hema v. State (SC) reported in 2013 AIR (SC) 1000 in support of his submissions.
We have considered the submissions advanced by the learned counsels for the respective parties. We have also gone through the evidences and the materials on record to consider the propriety of the impugned judgment.
It was evident from the evidence of P.W.20, the doctor who conducted post mortem examination over the dead body of the victim as also the PM report (Ext. 24) that on May 26, 2006 during post mortem examination, on dissection, the doctor, P.W.20, found one abrasion mark ½'' x ½'' at anterior aspect of left leg 4 inches below knee joint, one abrasion 2 x 2 on lateral aspect and at junction of upper one-third and lower two-third of the left arm, two abrasions mark ½'' x ½'' scattered at lateral aspect of left leg and one laceration 2½'' x ¼'' bone deep at right parietal eminence obliquely placed, haemorrhage and blood clots on intra cranial cavity and brain surface over right parietal region, fracture of fifth, sixth and seventh right side ribs and also blood in the right parietal cavity and lacerated injury at right lung and in the opinion of the doctor, death was caused due to intra cranial haemorrhage on lung and chest injury which were ante-mortem and homicidal in nature. He also opined that such type of injuries may be caused by small size lathi and such injuries may lead to death. His evidence remained unshaken during cross-examination. The above findings of P.W.20 also found corroboration from P.W.19, the surgeon, under whose supervision and guidance post mortem examination was conducted by P.W.20. His evidence also remained unshaken during cross-examination. So from the above it was abundantly clear that the death of the victim was due to the effects of the injuries which were ante mortem and homicidal in nature.
Now with regard to the above injuries it was the specific allegation of the prosecution that on May 25, 2006 at about 8 p.m. appellants along with other accused persons in furtherance of their common object forming an unlawful assembly and being armed with lathi etc. dragged the victim from his house while assaulting and took him in the land of Amalendu Paul near a canal and did not pay any heed to the request of the wife and children of the victim who followed them and due to their merciless assault victim sustained fatal injuries on his person resulting in his death. Defence had, however, denied the above allegations of the prosecution and taken the plea of innocence and false implication.
Learned court below took into consideration the evidences of eye witnesses namely, P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.12 and P.W.14 besides the evidence of the doctor and IO to arrive at a conclusion that the appellants along with Sk. Md. Hossain Gora, since deceased, in furtherance of their common object, forming an unlawful assembly and being armed with lathi etc. trespassed into the house of the deceased, dragged him out and intentionally caused injuries on the person of the deceased by mercilessly assaulting him as a result of which victim died and thereby committed an offence punishable under Section 148/448 and 302/149 of the Indian Penal Code and accordingly convicted and sentence them for the said offences.
On perusal of the evidence of eye witnesses together with the evidence of the doctor(P.W.20) and the P.M. report (Ext.24) it was evident that the death of the victim Jahur Ali was due to intra cranial haemorrhage on lung and chest injuries which were ante-mortem and homicidal in nature. The circumstances leading to the death of the victim has been described in the letter of complaint (Ext.1) including the name of some of the miscreants namely the appellants. On perusal of the evidence of P.W1, we find that he has corroborated the F.I.R. and vividly narrated the entire incident. He had specifically stated on oath before the court that on May 25, 2006 at about 8 p.m. while he along with his mother(P.W.3),sisters( P.W.2 and P.W.4) and brothers (P.W.5 and P.W.6) were in the house witnessing TV programme they heard cry of their father. They then came out from their room and saw in the electricity light of their house that 25/30 persons including the appellants to catch hold his father and assaulting him with a bamboo sticks, fists and blows and forcibly taking him away towards the field and in spite of their request they did not release him. They also followed the accused persons requesting them for releasing him but they also threatened to assault them. Thereafter, miscreants took his father to a place near a shallow machine and started further assaulting him with fists, blows and kicks and also by lathi which they saw from a distance of 6/10 cubits. After they raised hue and cry then hearing their cries when nearby villagers came running with torch light and hurricane miscreants left his father and went away. He had also stated that before the last Assembly election accused Asgar Ali and his men namely the appellants came to their house and asked his father to give subscription in connection with Assembly election to which his father gave some subscription. Then again after announcement of Assembly election they came to their house and demanded further subscription of Rs.25,000/ but when his father expressed his inability to pay such amount they threatened him with dire consequences and thereafter they committed this offence. He identified the appellants in course of his examination before the court. He was cross-examined by the defence and during cross-examination he specifically stated he recognized the accused persons while they were inside their house and besides him P.W.2, P.W.4, P.W.6, P.W.7, P.W.12, P.W.14 and many others saw his father in injured condition in the land of Amalendu Pal. He, however, admitted during cross-examination that there is no whisper in the FIR with regard to the demand of money by the accused Asgar Ali and his men or about the light or the name of the weapon in the hands of the each of the accused persons or about the recognision of the accused persons in the electricity light fitted in front of their house or about their following the accused persons while crying and witnessing the incident from a distance of 6-10 cubits away or about raising their hue and cry and hearing the same villagers came rushing with torch light and hurricane. But he denied the defence suggestion that he stated to the police that on May 25, 2006 at about 7.30 p.m. while his father was returning home after offering namaz in the mosque and when he reached near their house the said incident took place over the family dispute with his paternal uncle and he falsely implicated the accused persons.
The evidence of P.W.1 the defacto complainant, also find corroboration from P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 who have also specifically stated that on the relevant date and time while they were witnessing TV programme in the house they heard cries of the victim and when they came out they saw the appellants along with other accused persons in the light of electricity of their house armed with bamboo stick and wooden stick dragging the victim from his courtyard through the broken northern side boundary wall while assaulting to the land of Amalendu Pal and in spite of their request they did not pay any heed to their request rather attempted to attack them and on hearing their cries when the villagers taking torch light and hurricane came there they left the place. According to them appellants assaulted the victim with fists, blows and lathi. They also specifically stated that some days prior to the incident appellant Asgar Ali along with other appellants came to the house of the victim and demanded Rs. 25,000/- which the victim refused for which they threatened the victim with dire consequences. They too identified the appellants in course of their examination before court. They were cross-examined by the defence at length but their evidence also remained unshaken. The above versions of sons, daughter and wife of the victim also found corroboration from the independent eye witnesses namely P.W.7, P.W.8, P.W.12 and P.W.14. The elaborate cross- examination of the above eye witnesses on behalf of the appellants/accused persons has failed to discredit their overall testimony with regard to the basic features towards their involvement in the commission of the offence. The manner of assault narrated by the eye witness in causing injuries on the person of the victim also found corroboration from medical evidence. The evidence of eye witnesses on oath appear to be convincing, trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears to be no reason why so many eye witnesses should falsely implicate the appellants, and there is in fact, nothing on record to suggest that the witnesses had any reason to falsely implicate them. However, in course of examination of the above witnesses certain exaggeration and discrepancies cropped up.
With regard to the discrepancies, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram vs. State of Haryana, reported in (1999) 9 SCC 525. It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Reliance is placed on the decision of State of H.P. vs. Lekh Raj, reported in (2000) 1 SCC 247. In the matter of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon'ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. In the matter of State of U.P. vs. M. K. Anthony, reported in (1985) 1 SCC 505 it has been observe by the Hon'ble Apex Court that in examining the truthfulness of the evidence, the Appellate Court will have to attach due weightage to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.
In the case in hand, the discrepancies as to the number of the miscreants disclosed in the letter of complaint and stated by P.W.1 was minor in nature. Moreover, P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6, the eye witnesses, have categorically disclosed the presence of the appellants whom they could be able to identify on that night as the person who committed the offence and also identified them in course of their deposition before court. They were even cross-examined by the defence at length but their evidence remained unshaken. This also found corroboration from the independent eye witnesses.
Therefore, our interference with the impugned judgment is not required on the above ground.
Regarding the question of FIR being ante dated, it is the settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. In the instant case, we find from the evidence of P.W.s on record that the incident in question took place on May 25, 2006 at about 20.00 hours and on the same night at 01.35 hours written complaint (Ext.1) scribed by P.W.11 was submitted at the Arambagh P.S. by P.W.1. P.W.11 also affirmed the same. From the endorsement made on from Ext.1 as also the evidence of P.W.15, it was evident that the same was received at the Arambagh P.S. on May 26, 2006 at 01.35 hours and Arambagh P.S. Case No. 88/06 dated May 26, 2006 under Section 147/148/149/448/302 IPC was started against the appellants along with others. From the evidence of P.W.15, it was evident that on May 25, 2006 on the basis of information from Dr. S.K. Das of Arambagh S.D. Hospital about the death of the victim Arambagh P.S. UD Case No. 117 dated May 25, 2006 was started by ASI, Budhadeb Sarkar after making G.D. Entry 1328/06 dated May 25, 2006. Consequently, inquest as also the post-mortem examination were held in connection Arambagh P.S. UD Case No. 117/06 dated May 25, 2006. From the inquest report (Ext.2) prepared by P.W.15 on May 26, 2006 in presence of P.W.1, P.W.5 and P.W.8 the history behind the incident as also the name of some of the appellants namely Sk. Kalo, Asgar Ali, Sk. Afsar Ali, Sk. Babulal, Madhab Dewan, Haru Hajra, Ashok Malik transpired besides 17/18 others not named. Post mortem examination over the dead body of the victim commenced at 1.10 p.m. on May 26, 2006 and completed at 2.10 p.m. on the same date. FIR was placed before the Additional Chief Judicial Magistrate, Arambagh on May 27, 2006 for obtaining his signature. Interestingly, defence did not challenge P.W.15, the investigating officer, that the complaint (Ext.1) was not lodged at the Arambagh P.S. on that very night nor he forwarded the same to court on the next date. P.W.15 specifically stated during cross- examination that the first information regarding the death of the victim from the Arambagh SD Hospital was received by Arambagh P.S. on May 25, 2006 at 23.15 hours and the said information was received from the doctor who stated that the patient was brought dead. He also specifically stated that on that very night he examined the complainant who corroborated the FIR. He denied the defence suggestion that after removing the earlier FIR a subsequent FIR was lodged on the basis of which the instant case has been started. P.W.1 also denied the defence suggestion that the instant FIR was manufactured subsequently in collusion with police. However, it was evident from the written complaint that at serial no.17 name of one Jamal Molla s/o Golem Molla was written in different ink after striking the name of one Sasanka Santra but the same, as it appears from the formal FIR (Ext.15), might had been done before submitting to the P.S. and before drawing of the FIR as in the formal FIR (Ext.15) name of Jamal Molla s/o Golem Molla was mentioned. Moreover, name of none of the above person figured in the charge-sheet. So, the plea that the FIR was anti-timed, ante-dated, tampered and fabricated one did not appear to be correct.
Therefore, the impugned judgment did not require our interference on the above grounds.
With regard to the omission as to the demand of money, source of light and use of any arm in the FIR, it is the settled proposition of law that the main purpose of FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same itself is not the proof of a crime but is a peace of evidence which can be used for corroborating prosecution case. FIR need not be an encyclopaedia of all facts and circumstances on which the prosecution relies. In view of the above, such omissions were not of material dimension going to the root of the case making the prosecution case doubtful nor can it render the evidence of eye witness invalid. Moreover, such omissions are generally due to normal errors of memory due to mental disposition such as shock and horror at the time of occurrence and the like.
Similarly, the provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of witnesses. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. Moreover, inquest report is not a substantive piece of evidence and contents thereof can not be treated as evidence. In view of the above, such minor discrepancy is not going to the root of the case making the prosecution's case doubtful.
Therefore, our interference with the impugned judgment is not required on the above grounds.
With regard to contradiction as to the place of occurrence, we find from the written complaint (Ext.1) that the victim was forcibly taken away from his house near a canal. Eye witnesses had also given vivid and consistent account of the place of occurrence starting from the house of the victim to the land of Amalendu Pal. The evidence of eye witnesses appears to worthy of reliance to fix the scene of occurrence. From the rough sketch map (Ext. 16) it was evident that place of occurrence had been shown a land beside a canal. In view of the above, the submission of the learned advocate for the appellants that there was doubt with regard to the place of occurrence did not appear to be correct.
Therefore, the impugned judgment need not require our interference on the above ground.
We must observe that the investigation in this case has been most unsatisfactory and the investigating officer was not conscious of his responsibilities. The investigating officer did not seize any torch light or any document with regard to the electricity connection in the house of the victim or in the farm house of P.W.7 and P.W.8 nor he send the seized lathis or the wearing apparel of the victim to FSL for examination but that itself will not render the prosecution case doubtful. These are lapses on the part of the investigating officer. It is settled law that for certain defects in investigation, lapses on the part of the investigating officer, the accused persons can not be acquitted and it is the obligation on the part of the Court to scrutinies the prosecution evidence de hors such lapses to find out whether such lapses affect the object of finding out truth. It was observed by the Hon'ble Supreme Court in Karnel Singh vs. State of M.P., reported in (1995) 5 SCC 518 that in cases of defective investigation the court has to circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect. Otherwise it would amount to depending in the hands of the investigating officer in the event the investigation is designedly defective. It has also been held by the Hon'ble Supreme Court in the matter of Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518 that in a case where the prosecution case is fully established by the direct testimony of the eyewitness, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.
In the present case all the eye witnesses have categorically stated that they identified the appellants in the electricity light and some of them had torch lights and the lathis as the weapon was used in the commission of the offence beside fists, blows and kicks in causing injuries on the person of the victim and the wounds noticed by the doctor, P.W.20, and his opinion about the type of weapon which can cause such type of injuries also throw a considerable light on this aspect. Thus, we find that prosecution case was fully established by the direct testimony of the eyewitness, which was corroborated by the medical evidence.
Therefore, our interference with the impugned judgment is not required on the above ground.
The fact of recovery and seizure (Exts.3, 4, 5, 6, 7 and 9) of the weapon of offence namely six lathis (Mat. Ext.I) by P.W.15 leading to the statements (Exts.17, 18, 19, 20, 21 and 22) of the appellants Madhab Dewan, Asgar Ali, Sk. Babulal Ali, Sk. Golam Ambia, Uday Hazra and Haru Hazra from their hideouts was proved by seizure witnesses P.W.1,P.W.8 and P.W.9. The injuries sustained by the deceased as a result of assaulting him by the appellants with the participation of other miscreants were corroborated by the post mortem report of dead body of the deceased. In Raju @ Narinder Kumar vs. State of Haryana, reported in (2011) 14 SCC 636, the Apex Court took into consideration the fact of recovery of weapon of offence at the disclosure of the accused, nature of injury sustained and the post mortem report to arrive at a conclusion that both the Court below committed no error in awarding life imprisonment to the appellant.
In Bakhshish Singh vs. State of Punjab & Ors., reported in (2013) 12 SCC 187, the Hon'ble Supreme Court took into consideration the testimony of the doctor who had prepared the post mortem report that the injuries of the deceased had been caused by a sharp-edged weapon, to arrive at a conclusion that it was quite consistent with the use of dagger for the offence.
On perusal of the evidence on record, particularly the evidence of eye witnesses to the occurrence, we find that the appellants took active part in assaulting the victim by fists, blows, kicks and lathis. The statements of sons, daughter and wife of the victim were sufficiently corroborated from surrounding facts and circumstances as revealed from the deposition of other independent eye witnesses examined by the prosecution and that apart recovery of the weapon of offence namely lathis leading to the statements of the appellants lends sufficient support to the prosecution case against the appellants.
With regard to the absence of motive, we do not find any substance in the contention of the learned advocate for the appellants in view of the ocular evidence. It is also well settled that when independent testimony is available to prove the murder charge against the accused persons the question of motive becomes more or less academic. Moreover, absence of motive does not disprove a murder charge.
In the instant case the learned trial Court took into consideration the evidence of eye witnesses, sufficiently corroborated from surrounding facts and circumstances as revealed from the deposition of several witnesses examined by the prosecution, the injuries detected on the body of the deceased and cause of death of the victim as recorded in the post mortem report, the evidence of the doctors concerned, weapon namely the lathis recovered and seized leading to the statements and being led by appellants, which had been produced before the Court during trial together with seizure lists, to arrive at a conclusion that the aforesaid weapon had been used by the appellants for commissioning the offence under reference. The motive behind such gruesome killing as narrated by the eye witnesses was also taken into consideration by the learned trial Court. We do not find any impropriety in the decision making process of the learned trial Court in this regard.
In view of the above, we are of the opinion that the impugned judgment, order of conviction and the sentence do not require our interference.
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellants.
Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)