Calcutta High Court (Appellete Side)
Md. Kamar Raja @ Raju vs The State Of West Bengal on 21 April, 2017
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
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.745 of 2012
Md. Kamar Raja @ Raju
Versus
The State of West Bengal
For the appellants : Mr. Souvik Mitter,
Mr. Avishek Sinha,
Ms. Aindrila De
For the State : Mr. Ranabir Roy Chowdhury
Mr. Mainak Gupta
Heard on : 07/04/2017 & 11/04/2017
Judgment on: 21/04/2017
Debasish Kar Gupta , J. :
This appeal is directed against a judgment and order of conviction dated October 10, 2012 convicting the appellant for commission of offence punishable under Section 302 I.P.C. and sentence dated October 11, 2012 to suffer rigorous imprisonment for life as also to pay fine of Rs.3000/- in default to suffer further rigorous imprisonment for one year.
According to the prosecution case, on July 2, 2003, at about 18.30 hours, one Md. Salim (the deceased) was returning home with his two friends namely, Nurul Hoda (PW 6) and Salauddin, on foot across G.T. Road after consuming country liquor. When they came in front of a saloon at G.T. Road, suddenly the appellant caught hold of the deceased. The aforesaid friends of the deceased made attempts to rescue the deceased but the appellant brought out a 'Khur' from the waist of his 'Lungi' and asked the aforesaid associates of the deceased not to come forward. Then there was an altercation in between the appellant and the deceased. The appellant assaulted the deceased with the help of the 'Khur' on his throat and ran away. The deceased went to a nursing home, namely, Medicare Nursing Home after sustaining the aforesaid injury. The nursing home authority sent him to Howrah District Hospital in their ambulance car. The deceased was admitted in the above hospital. Subsequently, he succumbed to the above injury.
On the basis of a written complaint lodged in the Shibpur Police Station by the PW 6 on the next date, formal FIR bearing Howrah P.S. Case No.162 of 2003 dated July 3, 2003, was registered at 10.55 hours after making an entry in the General Diary in the above police station under G.D.E. No.187. It was forwarded to the court after ten days.
In the meantime inquest examination had been conducted on the dead body of the deceased at Howrah District Hospital, Howrah on July 3, 2003, at 9.30 hours by Sri Naran Bhattacharya (PW 2), an Assistant Sub-Inspector of Police attached to the Howrah Police Station and inquest report (Ext.-1) was prepared with reference to Howrah P.S. U.D. Case No.273/03 dated July 3, 2003. The PW 5, maternal uncle of the deceased was witness of the above inquest report. Though there was reference of the FIR bearing Howrah P.S. Case No. 162/03 dated July 3, 2003, at the bottom of the above inquest report, no name of accused person was mentioned in the above report.
The dead body was brought and identified by one Sankar Ghosh, Constable- 2335, attached to Howrah Police Station, for post mortem examination. The post mortem report was prepared by PW 3 on the dead body of the deceased on the same day, i.e., on July 3, 2003, at 14.30 hours with reference to Howrah P.S. U.D. Case No.273/03 dated July 3, 2003, as also FIR bearing Howrah P.S. Case No. 162/03 dated July 3, 2003. According to the opinion of the PW 3, the death was due to the effects of injuries mentioned in the post mortem report which was ante mortem and homicidal in nature.
The PW 7 was appointed as investigating officer to investigate into the case. The appellant was arrested on July 7, 2003. One razor, one blood stained shirt and one 'Lungi' of the accused were also seized. Charge-sheet no.191/03 dated September 15, 2003 was submitted in Court by the I.O. against the appellant for commission of offence under Section 302 I.P.C.
Charge dated April 6, 2006 was framed against the appellant for commission of offence punishable under Section 302 I.P.C. Since the appellant pleaded not guilty and claimed to be innocent, the trial commenced against the appellant.
After considering the evidence of seven prosecution witnesses and the documentary evidences, the impugned judgment, order of conviction and sentence were passed.
It is submitted by Mr. Souvik Mitter, learned advocate being assisted by Mr. Avishek Sinha and Ms. Aindrila De, learned advocates appearing on behalf of the appellant, that on account of infirmities as noticed from oral and documentary evidences on record in this case, the FIR appeared be recorded after due deliberations and consultations. It was forwarded to the Court ten days after the occurrence of the incident and there was no explanation for such inordinate delay in sending the FIR to Court.
According to him, the PW 5, the maternal uncle of the deceased, stated in Court that he had reached the Howrah District Hospital on the date of the incident after receiving the information regarding the incident. It had also been stated in Court by him that his source of information about the incident was PW 6 and one Sallauddin. Though he was the witness of the inquest report, the name of the appellant was not mentioned in that report on the basis of preliminary investigation.
According to Mr. Mitter, one alleged eyewitness, i.e. the PW 6 stated in course of his examination-in-chief in Court that there was tussle in between the appellant and the deceased and due to accidental slip of hand of the appellant, the razor struck the throat of the deceased. According to him, the purported claim of the PW 6 to be eyewitness of the incident was not free from reasonable doubt in view of his failure to identify the appellant in Court though he was a person known to him. Mr. Mitter added that according to the evidence of PW 5, there were many persons in the locality concerned named and known as "Raju" apart from the appellant.
According to Mr. Mitter, the enmity of the deceased with the appellant surfaced during the trial from the evidence of PW 5 and PW 6. It is revealed from the facts and circumstances that above allegation was based on hearsay evidence.
It is also submitted by Mr. Mitter that the alleged weapon of offence "razor" was not shown to PW 3 in Court. According to him, it created doubt about the use of alleged weapon of offence.
It is finally submitted by Mr. Mitter that the substantive evidence of the purported eyewitness (PW 6) was not brought to the knowledge of the appellant at the time of recording his statement under Section 313 Cr.P.C.
Reliance is placed by Mr. Mitter on the decisions of Balaka Singh & Ors. vs. The State of Punjab, reported in (1975) 4 SCC 511, an unreported judgment of the Hon'ble High Court in Asraf Biswas vs. The State of West Bengal, Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), reported in (2005) 5 SCC 258, Raja Ram vs. State of Rajasthan, reported in (2005) SCC 272, Ishwar Singh vs. State of U.P., reported in (1976) 4 SCC 355, Mohinder Singh vs. The State, reported in AIR 1953 SC 415 and Bijoy Anand Bera @ Biju & Ors. vs. State of West Bengal, reported in 2015 (4) AICLR 540 (Cal.) in support of his above submissions.
Mr. Ranabir Roy Chowdhury, learned State advocate opposes the above appeal appearing on behalf of the respondents.
We have heard the learned counsels appearing for the respective parties as also have considered the facts and circumstances of this case.
In order to consider the first contention of the appellant, we find from the evidence on record that the date of occurrence of the incident was July 2, 2003, at about 18.30 hours. In this case, the FIR was lodged on the next date, i.e. on July 3, 2003, by the PW 6 at 10.55 hours bearing name of the appellant. There was unexplained inordinate delay of ten days in forwarding the FIR to the court.
Further, the inquest report in respect of dead body of the deceased had been prepared in connection with Howrah P.S. U.D. Case No. 273/03 dated July 3, 2003, at 09.30 hours, i.e. before the above FIR was registered. Surprisingly, the number of the aforesaid FIR was also mentioned at penultimate paragraph of the inquest report. Moreover, the above inquest report was prepared over the dead body of the deceased in presence of and on identification by the witnesses of the report. The PW 5, maternal uncle of the deceased, was one of the aforesaid witnesses who had reached the Howrah District Hospital on receiving the information of the incident. According to the evidence of PW 5, he heard from PW 6 and one Sallauddin on enquiry that one Raju had assaulted the deceased on his neck with a razor. But the name of the appellant was not mentioned in the above inquest report.
In an unreported judgement dated June 28, 2016, passed by this bench in the matter of Asraf Biswas vs. The State of West Bengal (in re: CRA 840 of 2013), while dealing with the similar circumstances, it was observed that there had been failure on the part of the learned trial court to take note of similar infirmities as an alarm for him to examine the prosecution case on the basis of the available evidence more cautiously.
With regard to the next contention of the appellant that the evidence of an eyewitness (PW6) created reasonable doubt about the truthfulness of the prosecution case, we are of the opinion that the learned trial court failed to take note of the statement of PW 6 that he had witnessed a tussle in between the deceased and one Raju and as a result of an accidental slip of his hand the razor struck the throat of the deceased.
There was further failure on the part of the learned trial judge to take note of a relevant part of evidence of the PW 6, an eye witness, that the appellant had not been identified by him in court though he was a known person to the above witness. It will not be out of context to mention here that no prayer was made by the prosecution to declare him hostile. The learned court below further ignored that the doubt regarding the truthfulness of the prosecution case became more strengthened when the PW 5 stated in court that there were many persons named Raju in Shibpur area. Failure on the part of the PW 6 to identify the appellant as the person to assault the deceased created further doubt regarding the prosecution case so far as the question of his alleged enmity with the deceased was concerned.
Our above discussions and observations lead to an irresistible conclusion that impugned judgement, order of conviction and sentence require our interference and those are quashed and set aside.
This appeal is, therefore, allowed. The appellant is directed to be set at liberty unless he is otherwise required in any other case.
Let this judgment together with the Lower Court's records be sent back to the learned Court below expeditiously.
Urgent Photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)