Calcutta High Court
State Of West Bengal vs Habu Gorain @ Habul Gorain And 12 Ors. on 28 November, 2006
Equivalent citations: 2007(3)CHN270
JUDGMENT P.N. Sinha, J.
1. This appeal has been preferred by the State of West Bengal assailing the judgment and order of acquittal of respondents passed by the learned Additional Sessions Judge, 1st Court, Suri in Sessions Trial No. 1 of December, 1986 (Sessions Case No. 20 of 1986). 13 accused respondents faced the trial with the charge for committing offences under Section 148/302/307 of the Indian Penal Code (in short IPC) and, the learned Trial Court by his judgment dated 22.4.87 acquitted 12 respondents in respect of all the charges and convicted the respondent No. 3 Tarun Mondal for the offence under Sections 148 and 302 of the IPC for causing murder of Amrita Dome and sentenced him to suffer imprisonment for life under Section 302 of IPC and held him not guilty in respect of the charge of murder of Sultan Khan. The State has preferred the appeal being aggrieved by, and dissatisfied with, the order of acquittal of 12 respondents in respect of all the charges and acquittal of respondent Tarun Mondal for the charge under Section 302 of IPC for causing murder of Sultan Khan. In this connection it requires to be mentioned here that respondent No. 3 Tarun Mondal preferred an appeal before this Court against his conviction under Sections 302 and 148 of IPC for causing murder of Amrita Dome but the appeal preferred by him being CRA No. 189 of 1987 was dismissed by a Division Bench of this Court on 8th July, 1992.
2. The prosecution case, in short, is that on 26.4.84 corresponding to 13th Baisakh, 1391 B.S. at about 12 hours the accused persons forming an unlawful assembly with deadly weapons were proceeding on foot taking away Amrita Dome and Sultan Khan with them along the kuchha road in village Pechaliya within P.S. Khairasole, and all the accused persons were assaulting the said two persons. Some of the prosecution witnesses, who were relatives of the deceased Amrita Dome tried to save Amrita Dome, but they were assaulted by the respondents and the informant Sadananda Dome (P.W. 1) was shot at by a pipegun and he sustained injuries. While the respondents were proceeding with the said two persons, Amrita Dome managed to escape from the clutches of the respondents and took shelter in the house of Monohar Mondal @ Manu Mondal (P.W. 2). The respondents chased Amrita Dome and brought him out of the house of Manu Mondal and killed him in the passage or pathway lying between the house of Manu Mondal and his nephew Sahadeb Mondal. Sultan Khan was left injured in front of Durga temple in village Pechaliya which was close to the house of Monohar Mondal. After murdering a Amrita Dome the respondents went to Durga temple and murdered Sultan Khan and carried away his deadbody to 'garubathan' i.e. grazing field and left his body there. Over that incident the verbal statement of Sadananda Dome (P.W. 1) was reduced into writing by the police officer on 26.4.84 at 6.05 p.m. and it was treated as FIR (Ext.3). It was sent to police station and was received there at 7.25 p.m. and on the basis of such FIR Khairasole P.S. Case No. 10 dated 26.4.84 under Section 147/148/149/323/302 of the IPC and Sections 25/27 of the Arms Act was started against the respondents. After completing investigation the police submitted chargesheet against the respondents and the case was committed to the Court of Sessions.
3. In the trial that followed 16 witnesses were examined by the prosecution namely, P.W. 1 Sadananda Dome (brother of deceased Amrita), P.W. 2 Monohar Mondal, P.W. 3 Smt. Menoka Dome (wife of deceased Amrita Dome), P.W. 4 Smt. Bela Badyakar, P.W. 5 Shankar Dome (father of deceased Amrita), P.W. 6 Narayan Dome, P.W. 7 Nitai Dome (brother of deceased Amrita), P.W. 8 Smt. Sailabala Dome (mother of deceased Amrita), P.W. 9 Ejahar Ali, P.W. 10 Naresh Chandra Bauri, P.W. 11 Smt. Pramila Dome (wife of brother of deceased Amrita), P.W. 12 Dr. S. Nath (autopsy surgeon), P.W. 13 Kamal Kanta Porel, P.W.14 A.K. Ghosh (police officer) and the Investigating Officer (in short I.O.) P.W. 15 Ram Lal Dey. One witness namely D.W. 1 Joydeb Garain was examined on behalf of the accused respondents. We have already mentioned the background of this appeal against the order of acquittal.
4. Mr. Tapan Dutta Gupta, the learned Advocate appearing for the State submitted that there were several eye-witnesses in the trial namely, P.W. 1, P.W. 2, P.W: 3, P.W. 4, P.W. 8 and P.W. 11 and there was no ground to disbelieve the evidence of the eye-witnesses. The witnesses uttered the names of the assailants and also stated about the weapons used by the assailants which were found in their possession. P.W. 2 is a neighbour and not a relative of deceased and in his house the deceased Amrita Dome took shelter after he managed to escape from the clutches of the accused persons. Some of the accused persons thereafter entered into the house of P.W. 2 and after fastening Amrita Dome with a rope around his waist dragged him out of the house of P.W. 2 and brought him on the pathway lying between house of P.W. 2 and Sahadeb Mondal and murdered him there. The evidence of autopsy surgeon (P.W. 12) clearly tallies with the evidence of the eye-witnesses relating to nature of injuries as well as places of injuries on the person of deceased Amrita Dome and Sultan Khan. There was no serious contradiction in the evidence of the witnesses and there was also no serious contradiction between the evidence and the FIR.
5. Mr. Dutta Gupta contended before us that the learned Trial Court failed to appreciate the evidence of the witnesses and committed serious error. The learned Trial Court gave much importance on motive. In a murder case motive is not always a vital factor. The learned Trial Judge disbelieved the evidence of the prosecution witnesses that deceased Amrita was a teacher of night school and used to write petitions for the bargadars. Mr. Dutta Gupta contended that character of deceased should not be a matter for consideration in a criminal trial. The learned Trial Judge made further mistake by observing that FIR was ante-dated and ante-timed. The learned Trial Court placed much reliance on the inquest report, and observed in his judgment that, in the inquest report names of the respondents or the assailants were not mentioned. Mr. Dutta Gupta submitted before us that purpose of inquest is different and the inquest should reflect only the nature of injuries found on the body of deceased and inquest should not contain names of witnesses of occurrence as well as names of the assailants or the accused persons. The judgment of the Trial Court was perverse and the same amounted to miscarriage of justice. It is a fit case where this Court should interfere with the order of acquittal and after setting aside order of acquittal and on appreciation of evidence should pass the appropriate order.
6. Mr. Debasish Roy, appearing for the respondents submitted that there was no evidence before the Court that the deceased Amrita Dome used to work for the poor and used to write petitions for poor persons. It was also not established that Amrita Dome was a teacher of night school. From the evidence and circumstances motive behind the murder was not established. The FIR was subsequently created and it was sent before the learned Magistrate four days after the incident. The witnesses did not utter names of the respondents, and if the witnesses really had seen the incident and given the details of the incident it remains unexplained why they failed to utter name of the respondents in their evidence.
7. Mr. Roy further submitted that not a single disinterested person was examined in this case and all the eye-witnesses were relatives of Amrita Dome. The conduct of the witnesses show that their evidence is not reliable as they failed to expose normal human conduct. It was not expected that after murder of Amrita Dome his wife and other relatives would go to the Durga temple which was far away from the house of P.W. 2 to see the incident of assault and murder of Sultan Khan. Mr. Roy further submitted that if two views are possible from the evidence the High Court should not interfere with the order of acquittal passed by the learned Trial Court. The learned Trial Court rightly held the respondents not guilty of the offence or offences with which they were charged. The order of acquittal passed by the learned Trial Court is well-reasoned and there is no ground to interfere with the order of acquittal. In support of his contention Mr. Roy cited the decisions in Kunja Muhammed @ Khumani v. State of Kerala reported in 2004 SCC (Cri) 1425, Mahabir Singh v. State of Haryana reported in 2001 SCC (Cri) 1262, State of Haryana v. Ram Singh reported in 2002 SCC (Cri) 350, Dhanna v. State of M.P. reported in 1996 SCC (Cri) 1192, Antar Singh v. State of Madhya Pradesh reported in 1979 SCC(Cri) 147, Malu v. State of Haryana reported in 1976 SCC (Cri) 636, State of Punjab v. Sohan Singh , Ishwar Singh v. State of U.P. and V.N. Ratheesh v. State of Kerala reported in 2006(5) Supreme 262.
8. We have carefully perused the evidence and materials on record and considered the submissions made by the learned Advocates for the parties. We fully appreciate the principles of law pointed before us by Mr. Debasish Roy, the learned Advocate for the respondents. It is well-settled that where two views are possible the High Court should not interfere merely because it feels that sitting as a Sessions Judge, it could have preferred a contrary view. At the same time we differ on appreciation of evidence in appeal, and the correct law is that while deciding an appeal against order of acquittal, the High Court has full power to re-appreciate evidence and come to a conclusion independently. Of course, the High Court should not interfere with the order of the Sessions Judge, if the same is well-reasoned and based on proper appreciation of evidence and materials on record, but the High Court has a duty to reappreciate evidence to avoid miscarriage of justice. The High Court and the Appellate Court is not precluded from reappreciating the evidence in cases where it feels that Sessions Court had erred in its approach or appreciation of law and evidence or when the Court has missed or not read the evidence placed before it. The High Court has full power to re-appreciate evidence and come to a different finding from that of the Sessions Court, if the judgment and order of Sessions Court is perverse and based on wrong appreciation of evidence and law and amounts to miscarriage of justice [See Anil Kumar v. State of U.P. 2004 Cr. LJ 4881 (SC) : 2005 SCC (Cri) 178, State of Karnataka v. Papanaika 2004 Cr. LJ 4667, Haji Khan v. State of U.P. 2006(2) SCC (Cri) 336, State of Punjab v. Ajaib Singh 2005 SCC (Cri) 43 and Ram Swaroop v. State of Rajasthan reported in 2005 SCC (Cri) 61].
9. In Anil Kumar v. State of U.P. (supra) the Supreme Court observed that, "Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilty of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not [See Bhagwan Singh v. State of M.P. 2002 SCC (Cri) 736]. The principle to be followed by the Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 SCC (Cri) 1033, Ramesh Babulal Doshi v. State of Gujarat 1996 SCC (Cri) 972, Jaswant Singh v. State of Haryana 2000 SCC (Cri) 991, Raj Kishore Jha v. State of Bihar 2004 SCC (Cri) 212, State of Punjab v. Karnail Singh 2004 SCC (Cri) 135, State of Punjab v. Phola Singh 2004 SCC (Cri) 276 and Suchand Pal v. Phani Pal 2004 SCC (Cri) 220.
10. Let us enter into discussion of the evidence to consider whether the approach of the Trial Court was correct and proper and whether the view taken by the Trial Court was well-reasoned on the basis of evidence and materials on record. P.W. 1 Sadananda Dome is the brother of deceased Amrita Dome and he lodged the FIR. His evidence reveals that on the date of incident at about 12 at noon while he was in his house he heard a hue and cry and came out of his house. He found some persons capturing his brother Amrita Dome and one Sultan Khan entering into their village from Babuijore along the kuchha road and in that process those persons were assaulting Amrita Dome and Sultan Khan. Out of the said persons he recognised Balaram, Kristo, Bimal, Amal, Jiten, Manik, Sunil, Tarun, Madhu, Khadu, Guiram, Bijan, Habu, Kalo Manik and Madhai of their village and another person of Babuijore village whom he could not recognise. The accused persons were armed with bhojali, axe, pipegun, dagger etc. Amrita Dome somehow managed to escape from the clutches of the accused persons and took shelter in the house of Manu Mondal. The accused persons kept Sultan Khan half dead in front of the Durga temple. His elder brother Amrita Dome was taken out of the house of Manu Mondal and was assaulted by the accused persons with lathi, dagger, bhojali etc. on the 'gali' i.e. pathway lying between the house of Manu Mondal and his nephew Sahadeb Mondal. He tried to save his elder brother but was shot at by a pipegun which caused injury on his shoulder. Menoka Dome, Beli Dome, Narayan Dome, Sailabala Dome, Manu Mondal, Sanatan Mondal were present at the time of assault on his brother Amrita. The accused persons after murdering his brother Amrita went to the Durga temple and there they murdered Sultan Khan. Accused Kristo Gorain cut the throat of Sultan Khan and thereafter they brought the deadbody of Sultan Khan to 'garubathan' i. e. grazing field and left the body there. He was examined by doctor at Nakrakonda hospital and was given medicine. His elder brother Amrita was a teacher of night school in their village. Amrita also used to work as a day labourer and he used to write down petitions for poor cultivators claiming their barga rights. Guiram Mondal, the accused had grudge against his brother Amrita over this matter.
11. The cross-examination of P.W. 1 reveals that the accused persons were coming from the eastern side of the village assaulting Amrita and Sultan Khan. They fell on the feel of the accused persons to save the life of Amrita Dome, but the accused persons paid no heed. He admitted in cross-examination that in FIR he did not mention that they fell at the feet of the accused persons for the life of his brother and that Kristo Mondal cut the throat of Sultan Khan. He did not state the name of the accused persons who took away deadbody of Sultan Khan from the Durga temple to the grazing field. He admitted that there are 2/3 groups in their village and they belong to the communist party whereas the accused persons belong to congress party. He denied the defence suggestion that Amrita Dome and Sultan Khan were running away after snatching and men of different villages chased them and assaulted them.
12. P.W. 2, P.W. 3, P.W. 4, P.W. 8 and P.W. 11 who are the eye-witnesses of the incident fully corroborated the evidence of P.W. 1 relating to incident of assault on Amrita and Sultan Khan and their murder. These witnesses are more specific by fixing the fact of murder of Amrita Dome on six accused persons by stating in their evidence the specific parts played by six accused persons namely, Madhu, Guiram, Kalo Manik, Madhai, Kristo and Tarun. P.W. 2 stated in his evidence that on that day he was in his cowshed when he heard hue and cry emanating from the road. He came inside his residential portion and found that Amrita Dome had taken shelter in his house. Six accused persons namely, Madhu, Guiram, Kalo Manik, Madhai, Kristo and Tarun entered into his house and forcibly took away Amrita Dome out of his house. He requested those accused persons not to assault Amrita, but he was pushed away by the accused persons. After coming out of his house he found that Amrita was dead and his body was lying on the pathway between his house and house of Sahadeb Mondal. His cross-examination reveals that the six accused persons entered inside his house through the cowshed and door of his house.
13. P.W. 3, the wife of deceased Amrita Dome, P.W. 4, a neighbour, P.W. 8, mother of deceased Amrita and P.W. 11 wife of brother of Amrita in their evidence disclosed the same fact fully corroborating the evidence of P.W. 2. All of them in their evidence stated that hearing the hue and cry they came out of their respective homes and found that about 15 accused persons were proceeding to the eastern side of the village coming from the western side of the village and they were assaulting Amrita Dome and Sultan Khan. The deceased Amrita Dome managed to escape from the clutches of the accused persons and took shelter in the house of Manu Mondal to save his life. They requested the accused persons not to assault Amrita Dome, and P.W. 3 even fell down at the feet of accused persons for the life of Amrita Dome but the accused persons paid no heed, and P.W. 3 was kicked by accused Tarun @ Taru. Accused Taru, Madha, Kristo, Guiram, Madhu and Kalo Manik taking a rope entered inside the house of Manu Mondal and brought out Amrita Dome from inside the house by fastening rope around the waist of Amrita Dome. These six accused persons brought Amrita on the eastern pathway and murdered him by axe, knife, bhojali etc. P.W. 3 stated that accused Kristo stabbed her husband on the neck and throat and her husband expired. Thereafter the accused persons went to the Durga temple and there they assaulted Sultan Khan and accused Kristo assaulted on the back side of head of Sultan Khan with axe and the other five accused persons also assaulted him and murdered him. Accused Madha, Guiram, Madhu, Kalo Manik and Bijan carried the deadbody of Sultan Khan from that place and left his deadbody at the grazing field. All of them stated that Amrita Dome was a teacher of night school and he helped the poor in different matters.
14. Cross-examination of these witnesses reveal that the defence side took contradictions between their evidence in Court and the statements made to I.O. during investigation which were recorded under Section 161 of Cr. PC. We do not find any serious cross-examination of these witnesses concerning assault on Amrita Dome and Sultan Khan and also cross-examination concerning manner of assault on them and the weapons used by these six accused persons in assaulting and murdering them. P.W. 3 denied that she did not state to I.O. about bringing of her husband by the accused persons from house of Manu Mondal fastening him with a rope on waist. She denied that she did not tell I.O. specific name of these six accused persons and the name of the persons who carried away deadbody of Sultan Khan to the grazing field. She denied that her husband was a dacoit, thief or snatcher and that her husband used to take help of Sultan Khan in committing crime.
15. P.W. 4 in her cross-examination also stated that she saw the incident of taking away Amrita and Sultan along the kuccha road near her house and they fell at the feet of the accused persons for their lives but they were pushed aside. Cross-examination of P.W. 4 reveals that Sultan Khan's house was near the place of murder of Amrita Dome. P.W. 8 in her cross-examination stated that she herself, Bela, Sadananda and Menoka entered into the house of Manu Mondal when the accused persons entered into house of Manu Mondal to take away Amrita Dome from there. Amrita was fastened with a rope around his waist and thereafter he was taken out of the room and was brought on the pathway and there he was assaulted. Manu Mondal tried to save Amrita, but the accused persons kicked Manu and he fell down on his courtyard. Even after murder of Amrita Dome the rope remained on the waist of the body of her son Amrita. She denied the defence suggestion that her son was a dacoit, thief, snatcher and antisocial.
16. Cross-examination P.W. 11 reveals that the police officers came to their house on that very evening and recorded their statements. Amrita Dome and Sultan Khan were first taken to Durga temple and from there Amrita managed to escape through the first lane and took shelter in the house of Manu Mondal. The accused persons entered into the house of Manu Mondal and Manu Mondal requested the accused persons not to assault Amrita, but he was kicked aside. Amrita was brought to a lane lying between the house of Manu Mondal and Sahadeb and he was murdered there. Amrita was assaulted by axe on his head.
17. P.W. 10 was a Pradhan of Babuijore Gram Panchayat and he in his evidence stated that he knew both Amrita Dome and Sultan Khan. On the date of incident at evening he came to village Pechaliya when police arrived there and he was present at the time of holding inquest on the deadbody of Amrita Dome and also on the deadbody of Sultan Khan. His evidence reveals that inquest on the deadbody of Amrita Dome was made over a lane lying between the house of Manu Mondal and Sahadeb and the inquest on the deadbody of Sultan Khan was made at the grazing field of cattle. He denied the defence suggestion that the accused persons were falsely implicated in this case out of political rivalry.
18. P.W. 12 is the autopsy surgeon who held post-mortem examination on the deadbody of Amrita Dome on 27.4.84. On examination he found the following:
1) One incised wound on right lateral aspect of forehead 2 1/2" X 2" X 1/2"; 2) one incised wound in mid region of forehead 3" X 2" X 1/2"; 3) one incised wound on lower lip (left lateral aspect) 3" X 2 1/2" X 2"; 4) one incised wound 3" below the mid point of chin 4" X 2" X 2 1/2" larynx and trachea cut off; 5) fracture of 4th, 5th and 6th ribs on the right side; 6) fracture of 4th and 5th ribs on the left side; 7) right lung ruptured; 8) fracture of right lateral aspect of frontal bones.
19. P.W. 12 opined that the death was due to the effect of the head injury and associated injuries and ante-mortem and homicidal in nature.
20. He also held post-mortem examination on the deadbody of Sultan Khan and found the following:
1) One incised wound 3" X 2" X 1" on back portion of head; 2) one incised wound on left lateral aspect of the neck 2" X 1 1/2" X 1"; 3) one incised wound 4" X 3" X 5" - 4" below the mid point of chin-larynx and trachea cut off; 4) fracture of 4th, 5th, 6th and 7th ribs on the right side; 5) fracture of 4th, 5th and 6th ribs on the left side; 6) fracture of occipital bone; 7) both the lungs ruptured.
21. P.W. 12 opined that the death was due to the effect of the head injury and associated injuries and was ante-mortem and homicidal in nature.
22. We find that practically there was no serious cross-examination of P.W. 12. Still his cross-examination reveals that when he examined the deadbodies rigor mortis was absent, but decomposition of the deadbody did not start.
23. P.W. 13 is a constable who and Sunil took away the deadbody of Amrita Dome and Sultan Khan to the morgue from the village Pechaliya for the postmortem examination. P.W. 14 is the police officer who simply submitted chargesheet in this case.
24. P.W. 15 is the Investigating Officer (in short 1.0.) who held the main investigation in this case but could not submit chargesheet due to his transfer. His evidence reveals that on 26.4.84 at 4.45 p.m. he received one R.T. message from Bera camp to the effect that there was great tension in village Pechaliya over the assault on two persons. Receiving the information he proceeded to the place of occurrence by a jeep and reached village Pechaliya at 17.45 hours. He found two deadbodies in the village - one in a passage and the other at the extremity of the village. Sadananda Dome (P.W. 1) gave verbal statement to him and he reduced the same into writing and it was the FIR (Ext. 3). He held inquest over deadbodies of Amrita Dome and Sultan Khan in presence of witnesses. He also seized blood-stained earth, controlled earth from a place near the body of Amrita Dome by preparing a seizure list and also seized bloodstained earth and controlled earth from the place near Durga temple. He prepared a rough sketch map with index showing the place of occurrence. On the same day he examined some of the witnesses. He sent the deadbody of those two persons through constable to the morgue for post-mortem examination.
25. His cross-examination reveals that the R.T. message received by him was noted in the general diary. In the inquest report name of two assailants namely, Tarun Mondal and Madhai were mentioned and it was also mentioned that 10/12 other persons were there. He did not find any used cartridge near the tubewell or near the house of Monohar Mondal. He did not examine the chowkidar of the village Pechaliya. He made enquiries about the existence of night school but he did not find any register. He also made enquiries about writing petitions by deceased Amrita Dome for the poor, but he did not get any information that Amrita Dome used to write petitions. His evidence reveals that Amrita used to side with the bargadars for recording their names. He found P.W. 1 Sadananda with injuries and sent him to Nakrakonda PHC. He did not find any pellet injury on the deadbody of Amrita Dome and also on the deadbody of Sultan Khan at the time of holding inquest.
26. It further transpires from his cross-examination that contradictions relating to evidence of the witnesses and their statements recorded under Section 161 of the Cr. PC were taken by the defence. The contradictions taken are not worth mentioning and those were not serious or vital which can impair the value of evidence of the witnesses. The contradictions taken relate to uttering names of specific six accused persons in the murder of Amrita Dome and entering inside the house of Manu Mondal by the eye-witnesses and fastening of Amrita Dome by a rope around his waist. These contradictions have not shaken the veracity of the eye-witnesses and such contradictions being minors and ignorable do not make the witnesses untrustworthy and unreliable.
27. Carefully scrutinising the aforesaid evidence and on appreciation of such evidence and considering the principles of law against acquittal, we find that the learned Trial Court was completely in error by overlooking important evidence and placing much reliance on non-mention of name of accused persons in the inquest report. The approach of the learned Trial Court on inquest report was against the settled principle of law. The constant view of the Supreme Court is that the inquest report should not contain the manner in which the incident took place or the names of eye-witnesses as well as names of accused persons. In Amar Singh v. Balwinder Singh the Supreme Court while discussing the evidentiary value of inquest report held that the inquest report should not contain the manner in which the incident took place or the names of the accused.
28. In Radha Mohan Singh @ Lal Saheb v. State of U.P. reported in 2006(1) SCC (Cri) 661 the Supreme Court held that scope of the inquest is limited and is confined to ascertainment of apparent cause of death. It was held by the Supreme Court that the inquest is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. The details of overt acts need not be recorded in the inquest report. Question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who were the witnesses of the assault is foreign to the ambit and scope of the proceedings under Section 174 of the Cr. PC. There is no requirement in law to mention details of FIR, names of accused or the names of eye-witnesses or the gist of their statements in inquest report, nor is the said report required to be signed by any eye-witness.
29. The principle of law concerning the scope of inquest report disclosed above would make it clear that in the inquest report only the apparent cause of death is to be mentioned and it should contain whether the death was accidental, suicidal or homicidal or caused by any animal and in what manner or by what weapon or instrument the injuries on the body of the deceased appear to have been inflicted. The inquest report need not contain the overt act of accused persons or the manner in which the accused persons assaulted the deceased and the names of the accused persons or the names of the eye-witnesses. Strange enough, the learned Trial Court disbelieved the prosecution story by observing that in the inquest report names of only two accused persons were mentioned and names of other accused persons were not mentioned. More funny is that, the inquest report itself was not admitted in evidence and was not marked exhibit. When a document was not admitted in evidence and was not marked exhibit the Trial Court could not have placed reliance on such document. The manner and approach of the Trial Court in disbelieving the prosecution story by placing reliance on the inquest report was thus wholly erroneous and bad in law.
30. We are unable to agree with the views of the learned Advocate for the respondents that FIR was ante-dated, ante-timed and was subsequently created and was a fabricated document. The verbal statement of P.W. 1 Sadananda Dome was reduced into writing by P.W. 15 and it was treated as FIR (Ext. 3). The formal FIR was marked Ext. 3/3. From these documents it is evident that the incident took place on 26.4.84 at about 12 hours and the FIR was recorded at village Pechaliya at 6.05 p.m., and after it was sent to the Khairasole P.S. it was registered as Khairasole P.S. Case No. 10 dated 26.4.84 at 7.25 p.m. From formal FIR we find the that distance of police station from place of occurrence was 22 K.M. west. After such brutal incident of double murder the inmates of deceased Amrita Dome were busy with his deadbody and they were in great shock. In such a situation it is idle to expect that the inmates would rush to the police station to lodge the FIR. Evidence of P.W. 15 reveals that he got information of the incident by radio transmission message at about 4.45 p.m., and over that, a general diary was recorded and thereafter he left for the village in question and the FIR was recorded in village Pechaliya after his arrival. The FIR contains name of the accused persons which has been corroborated by the witnesses in their evidence. We do not find any ground to come to the conclusion that FIR was ante-dated, ante-timed and was a manufactured and fabricated document. Merely that the FIR was placed before the learned Magistrate on 30.4.84, three days after registration of FIR, is not a ground to suspect the prosecution case as doubtful and to hold that FIR was ante-dated and ante-timed, and was not genuine. No question was put to the I.O. as to the cause of delay in sending FIR to the Magistrate. There was no possibility at all for false implication of the accused persons in this case and accordingly mere delay in sending FIR to the Magistrate is not at all fatal for the prosecution case. In State of Jammu & Kashmir v. S. Mohan Singh reported in 2006 Cr. LJ 1691 : 2006(2) SCC (Cri) 484 the Supreme Court observed that, "It is well-settled that mere delay in sending the First Information Report to a Magistrate cannot be a ground to throw out prosecution case if the evidence adduced is otherwise found credible and trustworthy." After considering the entire evidence, circumstances and materials on record we find that FIR is not a fabricated document nor it was ante-dated and ante-timed.
31. P.W. 5 in his evidence did not state that he submitted written FIR at thana. But the learned Trial Court disbelieved the FIR holding that it was not the FIR and the real FIR was the information given by P.W. 5. Scanning the evidence of P.W. 5 we find that P.W. 5 went to Bera village whether there was a police camp and he informed that camp concerning incident and told police personnel to come to village. This gets support from evidence of the I.O. (P.W. 15) who in his evidence stated that he received R.T. message from Bera camp concerning tension in village Pechaliya. In our opinion, any information or telephonic message given to the police station cannot be regarded as FIR and in this case there was only a camp of police in Bera village and it was not even outstation of police. The law is well-settled that any information or telephonic message given to the police station which is cryptic and does not contain all the essential requirements of FIR cannot be regarded as FIR. In Ramsinh Bavaji Jadeja v. State of Gujarat reported in 1994 Cr. LJ 3067 the Supreme Court held that every telephonic information about commission of a cognizable offence irrespective of nature and details of such information cannot be treated as FIR.
32. We are not at one with the submission of the learned Advocate for the respondents that all the witnesses were relatives of Amrita Dome and not a single independent witness was examined for which prosecution case is shrouded with doubt, and that, the witnesses examined failed to behave like a normal human being as even after murder of Amrita Dome they went to see assault on Sultan Khan at Durga temple. From evidence we find that Durga temple is inside the village and is near the house of Manu Mondal and Sultan Khan. There was no abnormality in conduct of the villagers running to Durga temple which was very near to their residence to see assault on Sultan Khan. From the evidence of witnesses it appears that Durga temple was visible from the house of Manu Mondal and very near to their houses. This cannot be treated as abnormal conduct of witnesses to make them untrustworthy and unreliable.
33. Merely a witness is a relative is not at all a ground to discard his evidence. The entire gamut of the case, the totality of evidence and the surrounding circumstances are to be considered. It is idle to expect presence of independent witnesses in village where there are two factions bitterly opposed to each other. Political colour cannot be a ground to disbelieve witnesses when due to political rivalry there are two groups in village bitterly opposed to each other.
34. The Supreme Court has laid down the law on evidence of a relation observing that in view of the reluctance of the general public to be a witness, a close relative is the only natural witness and the requirement is that testimony of such a witness should be cautiously examined by the Court [State of A.P. v. S. Rayappa 2006(2) SCC (Cri) 353]. Evidence of a relative can be acted upon, if the Court finds that evidence of such witness is believable and trustworthy. In this connection, we place our reliance on some of the decisions of the Supreme Court viz., Seeman @ Veeranam v. State by Inspector of Police , Alamgir v. State (NCT, Delhi) , Dalbir Kaur v. State of Punjab , State of U.P. v. Jodha Singh , Labh Singh v. State of Punjab , Visveswaran v. State represented by S.D.M. 2003 SCC (Cri) 1270. In Badri v. State of U.P. reported in 1975 Cr. LJ 1639 (SC) and in Tameshwar v. State of U.P. the Supreme Court held that, where in a village there are two factions bitterly opposed to each other it would be idle to expect independent persons to come forward to give evidence and only partisan witnesses would be natural and probable witnesses to the incident. Their evidence has to be assessed on its own merits.
35. In this case, P.W. 2 Monohar @ Manu Mondal was not a relative of Amrita Dome. After closely scrutinising the evidence of eye-witnesses namely P.W. 1, P.W. 2, P.W. 3, P.W. 4, P.W. 8 and P.W. 11 we do not find any ground to disbelieve their evidence. In their cross-examinations we have not noticed any serious contradiction, omission, infirmity, defect or lacuna which can make their evidence unbelievable and to make them untrustworthy witnesses. It has not been transpired from evidence and circumstances that these witnesses had grudge against accused persons for which they falsely implicated the accused persons. All the witnesses in their evidence clearly stated that six accused persons namely, Kristo, Madhu, Guiram, Madhai, Tarun and Kalo Manik entered into the house of Monohar Mondal where Amrita Dome took shelter and brought him out by fastening him with a rope around his waist and after bringing him on the passage lying between house of Manu Mondal and Sahadeb Mondal these six accused persons assaulted him and murdered him. The evidence of the eye-witnesses has been fully corroborated by the autopsy surgeon (P.W. 12) relating to the nature of injuries and places of injuries on the person of deceased. We do not find any ground to disbelieve the evidence of so many eye-witnesses and we are clearly of opinion that the Trial Court committed serious error by ignoring such overwhelming evidence of the witnesses and disbelieving their evidence merely on the ground that they were relations of Amrita Dome.
36. We find no substance at all in the submission of the learned Advocate for the respondents that it was not established that Amrita Dome was a teacher of night school or that it was not established that he used to write petitions for poor persons. We find that the learned Trial Court also placed much reliance on these aspects and committed serious error in his judgment. From the evidence of I.O. we find that he did not seize any register to prove that Amrita Dome was a teacher of night school. The evidence of I.O. (P.W. 15) establishes that Amrita Dome used to side with the bargadars for recording their names. The evidence of the witnesses examined in the Trial Court reveals that all of them stated that Amrita Dome was a teacher of night school and he used to write petitions for poor persons and bargadars. We are amazed as to how the Trial Court could ignore such overwhelming evidence of eye-witnesses and other witnesses to the effect that Amrita was a teacher of night school and that he used to write petitions for poor persons and bargadars. The evidence of I.O. himself establishes the fact that Amrita Dome used to side with the bargadars for recording their names. It proves that foundation of the prosecution case was true and believable. Failure of the I.O. to collect or seize register of the night school where Amrita used to perform as a teacher cannot be a ground of acquittal when the witnesses examined in Court stated categorically in clear terms that he used to teach poor persons in night school and used to side with the poor people and bargadars. The Trial Court acted illegally in disbelieving the prosecution case and placing reliance on failure of prosecution to produce register to show that Amrita was a teacher of night school. The Trial Court dealt much on this aspect and considering the entire evidence and circumstances we are of opinion that the Trial Court proceeded completely on wrong angle and committed material illegality.
37. The defence tried to project Amrita as a dacoit, thief or robber. No evidence was produced before the Court from the defence side to prove that Amrita Dome was a dacoit, thief or a robber or that any case was ever started against Amrita concerning such offence. Evidence of D. W. 1 hopelessly fails to prove that Amrita was a dacoit, thief or robber. The defence thus hopelessly failed to prove that Amrita was an antisocial or that he was a dacoit, robber or thief. Against this background, we find that projection of Amrita by prosecution as a person who used to side with poor people is more believable and trustworthy and evidence of I.O. also establishes that Amrita used to side with the bargadars for recording names.
38. The defective investigation cannot be a ground of acquittal of accused, if the Court finds that direct evidence coming from ocular version of witnesses, the medical evidence and the circumstances make the prosecution witnesses trustworthy and thereby establishing prosecution case beyond all reasonable doubts which clearly points to the guilt of the accused [See Dhanraj Singh v. State of Punjab 2004(3) All India Criminal Law Reporter (SC) 353 and Karnel Singh v. State of M.P. ].
39. Considering the totality of the evidence and circumstances we do not find any ground to disbelieve the evidence of the prosecution witnesses and then-evidence clearly proves that six accused persons namely Madhu i. e. Madhusudan Mondal (respondent No. 4), Guiram i.e. Guhiram Mondal (respondent No. 10), Kalo Manik i.e. Kalo Mondal (respondent No. 5), Madhai (deceased), Kristo i.e. Kristo Gorain (respondent No. 2) and Taru alias Tairo @ Tarun i.e. Tarun Mondal (respondent No. 3) were the assailants who caused the murder of Amrita Dome and Sultan Khan P.W. 3 in Court clearly identified the six assailants and disclosed their names. It has been proved beyond all reasonable doubts from the ocular version of witnesses and the circumstances that these six accused persons and others formed an unlawful assembly and committed the murder of Sultan Khan and Amrita Dome. Prosecution was able to bring home the charge under Sections 148 and 302 of the IPC against these six accused persons and they are guilty of murdering Amrita Dome and Sultan Khan. The charge under Section 307 of the IPC was not established as we do not find sufficient elements from evidence of witnesses as well as from medical evidence in respect of the charge under Section 307 of the IPC. The prosecution has thus been able to prove its case against the respondent No. 2 Kristo Gorain, respondent No. 3 Tarun Mondal, respondent No. 4 Madhusudan Mondal, respondent No. 5 Kalo Mondal and respondent No. 10 Guhiram Mondal. From the evidence of the witnesses it has been established that accused Madhai Mondal has expired and he did not face the trial. Prosecution case against respondent Nos. 1, 6, 7, 8, 9, 11, 12 and 13 were not established as against them evidence is scanty and not convincing to establish that they shared the same common object to cause murder of Amrita Dome and Sultan Khan. Prosecution has not been able to lead sufficient evidence to prove elements of Sections 148 and 302 of IPC against them. No charge was framed against these eight accused persons under Section 323/149 of IPC for formation of unlawful assembly with common object of assaulting Amrita Dome and Sultan Khan. The order of acquittal against these eight respondents accordingly requires no interference in this appeal.
40. Considering the totality of the evidence and circumstances as it appears from the materials on record we are satisfied that the reasoning of the Trial Court for acquitting the abovenamed five respondents was wholly perverse as well as against principles of law. There was no reasonable approach to the appreciation of evidence and as such we find sufficient reasons to interfere with the findings recorded by the learned Additional Sessions Judge, though 22 years have passed in the meantime since the date of incident. The order of acquittal passed by the Trial Court was illegal and it amounted to miscarriage of justice.
41. In the result, we partly allow the appeal and set aside the judgment and order of acquittal of the Trial Court so far as it relates to respondent Nos. 2, 3, 4, 5 and 10. We maintain the order of acquittal passed by the learned Additional Sessions Judge in respect of respondent Nos. 1, 6, 7, 8, 9, 11, 12 and 13, and in our opinion there is no ground to interfere with the order of acquittal in respect of these eight respondents as evidence against them is not sufficient to warrant their conviction.
42. As the prosecution has been able to bring home the charges under Sections 148 and 302 of the IPC against the respondents 2, 3,4,5 and 10 we are of opinion that considering the fact of double murder it would be proper to impose sentence of imprisonment for life on them and also with fine. In our opinion it is not such a rarest of rare case where we can impose death sentence on the respondents. Respondent No. 3 Tarun Mondal was earlier convicted under Section 302/148 of IPC for the murder of Amrita Dome and was sentenced to suffer imprisonment for life, but he did not serve out the full sentence. We were told at the time of hearing of the appeal that after admission of appeal when this Court by order dated 11.8.87 directed that pending hearing of the appeal the respondents be re-arrested and released on bail to the satisfaction of the Chief Judicial Magistrate, Birbhum, the respondent No. 3 Tarun Mondal was also released in view of such order and he did not serve out the full sentence. We hold respondent No. 3 Tarun Mondal guilty under Section 302 of IPC for the murder of Sultan Khan also, but we do not impose separate sentence on him as he has already been sentenced to suffer imprisonment for life for the murder of Amrita Dome. The respondent No. 2 Kristo Gorain, respondent No. 4 Madhusudan Mondal, respondent No. 5 Kalo Mondal and respondent No. 10 Guhiram Mondal are sentenced to suffer imprisonment for life and to pay a fine of Rs. 2000/- each in default to suffer R.I. for six months each for the offence under Section 302 of IPC. We do not impose any separate sentence on the aforementioned four respondents for the offence under Section 148 of IPC. The above five respondents who are on bail are directed to surrender before the learned Additional Sessions Judge, 1st Court, Suri within 30 days from the date of this order to serve out the sentence failing which the Trial Court will take steps in accordance with law against them for their apprehension to serve out the sentence.
43. Criminal Section is directed to send down the lower Court records along with the copy of judgment and order to the Trial Court forthwith for information and necessary action.
P.S. Datta, J.
44. I agree.