Calcutta High Court (Appellete Side)
Soharab Gazi & Ors vs The State Of West Bengal on 13 September, 2013
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
In the High Court at Calcutta
(Criminal Appellate Jurisdiction)
Appellate Side
C.R.A No. 350 of 1987
Soharab Gazi & Ors
Versus
The State of West Bengal
PRESENT: The Hon'ble Mrs. Justice Nishita Mhatre
&
The Hon'ble Mr. Justice Kanchan Chakraborty
For the Appellant No.1 :Mr. Madhusudan Sur
For the Appellant Nos. 2-5 : Mr. Y. Z. Dastoor
Mr. Debojyoti Deb
For the State : Mr. Prasun Dutta
Mr. Subrata Roy
Heard On : 5.7.2013, 12.7.2013 and 30.8.2013
Judgement On :13.09.2013
Kanchan Chakraborty, J:
1) The challenge in this appeal is to the judgment and order of
conviction and sentence dated 17.7.1987 passed by the learned
Additional Sessions Judge, 9th Court, Alipore, 24 parganas (South)
in Sessions Trial 07(08) of 1986, thereby convicting the appellants
for committing offences punishable under section 302/34 of the
Indian Penal Code and sentencing them to suffer R.I for life.
2) One Bhola Nath Mondal (since deceased) lodged one F.I.R. with
Basanti Police station on 6.8.1983 at 15.00 hours alleging therein
that on 6.8.1983 at about 10.30 A.M. while Ratan Mondal and
Manik Paik were returning to their respective houses after
informing local people to assist them in the cultivation work, the
appellants obstructed Ratan Mondal infront the house of Manik
Paik and assaulted him with dagger on different parts of his body.
The appellants fled away when the lodger of the F.I.R. appeared on
the scene together with his mother, Gopal and Co-villagers. Ratan
Mondal succumbed to the injuries caused by the appellants. The
lodger of the F.I.R. Bhola Nath Mondal was killed after initiation of
the case and, as a result, could not be examined as a witness. The
F.I.R. he lodged was despatched to the nearest Magistrate on
7.8.1983 at 08.00 hours. The case was registered as Basanti Police
station case no. 2 dated 6.8.1983 under section 302/24 of the IPC
against the appellants who claimed not guilty to the charges
framed against them by the learned Trial Court. In Course of trial,
the learned Trial Court recorded evidence of 18 prosecution
witnesses including three eye witnesses, the Doctor who conducted
the post-mortem on the dead body of Ratan Mondal and the
investigation officer of the case. The F.I.R. was marked as exhibit
4. The inquest report of the dead body of Ratan Mondal was also
admitted into evidence and marked as Exhibit 5. The sketch map
of the Place of occurrence prepared by the investigation officer was
marked as Exhibit 8. The statement of Manik Ali Paik (P.W. 1)
recorded under section 164 of the Cr.P.C. was admitted into in
evidence and marked Exhibit 9.
3) The learned trial Court, upon consideration of the evidence
recorded by it and upon consideration of documentary evidence
placed before it came to a conclusion that the prosecution brought
home the charges against the appellants and, accordingly,
recorded their conviction and sentence which is impugned in this
appeal.
4) Mr. Dastoor, learned Counsel appearing for the appellant Nos. 2 to
5 attacked the judgement on manifold grounds. The first point
raised by him is that no such incident of murder had actually
taken place on that particular date, time and place and in the
manner it has been alleged. He contended that the evidence of the
Doctor who conducted the post-mortem on the dead body of Ratan
Mondal makes it abundantly clear that the alleged incident had
not taken place on 6.8.1983 at 10.30 hours. He has taken us to
the cross-examination of the P.W. 12, Doctor Ashok Kumar Maitra
and contended that if the opinion of the P.W. 12 regarding the
advance stage of decomposition of the dead body is accepted, the
alleged incident obviously had taken place before 6.8.1983. Mr.
Dastoor has also drawn our attention to the evidence of the
Investigation Officer (P.W. 17) that the dead body of Ratan was
found lying on the pathway infront of the shop of Manik Paik
where he conducted inquest over the body and that he found the
entire body of Ratan was covered with mud. Mr. Dastoor has
drawn our attention to the statement of the P.W. 17, the I.O., that
on 6.8.1983, he was informed by Manik Paik (P.W. 1) at about 11
a.m. that a person named Ratan Mondal was murdered infront of
his shop. He recorded that information in the general diary book
and went to the place of occurrence. After reaching there at 11.20
A.M, he came to know that Bhola Nath Mondal had already lodged
one F.I.R. He conducted the inquest of the dead body of Ratan
infront of the house of Manik Paik and prepared a sketch map of
the place of occurrence. Mr. Dastoor contended that the dead body
of Ratan was found lying on the pathway according to the
statement of the Investigating officer and inquest report (Ex. 5)
But, almost all the prosecution witnesses stated that lower part of
the dead body was hanging inside the tank and remaining upper
portion of the body was lying on the pathway. Mr. Dastoor also
contended that some of the witnesses informed the I.O. that the
dead body was pulled out of the pond and kept on the pathway.
Mr. Dastoor contended that a careful scrutiny of the evidence of
the post-mortem Doctor,(P.W. 12) the Investigating officer(P.W. 17)
and other witnesses altogether establishes that the alleged murder
had not taken place infront of the house of Manik Paik at 10.30
A.M. on 6.8.1983 as alleged but much earlier than that time and
the dead body was actually floating on the tank which was pulled
out subsequently on 6.8.1983. He further contended that the
learned Trial Court relied on the testimonies of P.W. 1, P.W. 2 and
P.W. 3 sacrosanct and recorded conviction of the appellants
ignoring the inconsistencies in major factual aspects of the case
and ignoring completely the evidence of P.W. 12 i.e. the post-
mortem Doctor and the P.W. 17, the investigating officer of the
case. He categorized the P.W. 1,2 and 3 as the witnesses highly
interested in implicating the appellants as they and deceased
Ratan and his brother Bhola Nath who was killed afterwards were
belonging to a group of dacoits.
5) The next point raised by Mr. Dastoor is that the P.W. 1 Manik Paik
informed the police officer of local outpost about the incident and
that information was diarised. The P.W. 1 in his evidence, in his
statement recorded under section 164 of the Cr.P.C. and the I.O.
(P.W. 17) in his evidence admitted that fact. But, said diary was
not placed before the Court to verify the contents of the same.
According to Mr. Dastoor, a valuable piece of evidence was
withheld by the prosecution and thereby a strong doubt is created
which the learned Court failed to take into consideration.
6) Next submission of Mr. Dastoor was that the P.W. 1,2,3 and 9 were
some way connected with deceased Ratan and Bhola and involved
in Criminal activities. Ratan and Bhola had good member of
enemies. The P.W. 1,2, 3 and 9 being interested witnesses cannot
be relied on especially when the sister of deceased Ratan (P.W. 4)
stated categorically that there was inimical relation between them
and the appellants.
7) Mr. Dastoor contended further that the appellants were not
properly examined under section 313 of Cr.P.C. resulting in
serious prejudice to them.
8) It was further been contended by Mr. Dastoor that contents of the
inquest report mentioning the names of the appellants as
assailants vis-a-vis time of inquest, time of making entry in the
general diary, time of lodging of the F.I.R., appears to be
suspicious and afterthought . He has drawn our attention to
various inconsistencies in the evidence adduced by the witnesses
and submitted that where there are two possible views, the one
which goes in favour of the accused/appellant has to be accepted.
9) Mr. Dastoor also contended that the statement of Manik Paik (P.W.
1) recorded under section 164 of Cr.P.C. is not free from doubt.
Manik Paik was in the police station for three days before he made
the statement before Magistrate. Much might have happened in
three days between the date of incident and the date he was
produced before Magistrate for recording his statement under
section 164 Cr.P.C.
10) Mr. Dastoor, referred to the following decisions in support of
his contention:
i) Babu & Ors. Vs. State of Uttar Pradesh reported in
(1983) 2 Supreme Court Cases 21.
ii) Ram Narain Singh & Ors. Vs. State of Punjab reported
in (1975) 4 Supreme Court Cases 497.
iii) Raghunandan Vs. State of U.P. and Ganga Sahai &
Ors. Vs. State of U.P. reported in (1974) 4 Supreme
Court Cases 186.
iv) Machander Vs. Hyderabad Vs. State reported in AIR
1955 SC 792.
v) Ishwar Singh Vs. State of U.P. reported in (1976) 4
Supreme Court Cases 355.
vi) Balaka Singh & Ors. Vs. The State of Pubjab reported in
(1975) 4 Supreme Court Cases 511.
11) Mr. Madhusudhan Sur, learned Counsel on behalf of
appellant no. 1 submitted that he had nothing to add to what Mr.
Dastoor has submitted. He adopted the submission of Mr. Dastoor.
12) Mr. Prasun Dutta, learned Counsel on behalf of the
respondent/state of West Bengal contended that this is a fool proof
case where prosecution could able to examine three eye witnesses and one post ocular witness. There is no evidence that those witnesses had any reason to implicate the appellants falsely in this case. He contended that apart from the evidence of the eye witnesses and post ocular witness, the evidence of post-mortem Doctor supported the prosecution case. There was no reason for the trial Court to ignore the statements of the eye witnesses and, therefore, the judgement impugned is not required to be interfered with. He prayed for dismissal of the appeal.
13) We have carefully gone through the oral evidence recorded by the learned Trial Court, the inquest report, the evidence of post- mortem Doctor, evidence of the investigating officer, the sketch map of the place of occurrence and statement of the P.W. 1 Manik Paik recorded under section 164 of the Cr.P.C. There is no denial of the fact that death of Ratan Mondal was anti-mortem and homicidal in nature. There is no denial also of the fact that the injuries detected by the inquest officer and post-mortem Doctor were the cause of his death.
14) According to Mr. Dastoor, the incident alleged did not happen on 6.8.1983 at 10.30 hours as stated in the F.I.R. and stated by the witnesses in Court. He relied heavily on what the post-mortem Doctor (P.W. 12) stated in his cross-examination. The statement of P.W. 12 in his cross-examination is set out below.
" When I found the dead body of Ratan Mondal for P.M. examination, I found magots at natural orificese and crowling over the body. Rigor morties usually sets in three or four hours after the death - Rigor morties continues to 18 to 24 hours. Thereafter, early decomposition starts.
Thereafter, advanced state of decomposition comes. In summer time the advance stage of decomposition starts after about 48 hours after the end of Rigor morties. It is not a fact that it was not possible for me to hold P.M. examination as I received the dead body in advance stage of decomposition."
15) The statement above of the P.W. 12 suggests that he received the dead body of Ratan Mondal in the advanced stage of decomposition. If so, the death of Ratan was caused about, at least, 66 hours prior to holding of post-mortem. The P.W. 12 denied the suggestion put to him that it was not possible for him to hold P.M. examination because of the fact that the dead body was in the advanced stage of decomposition. On perusal of the evidence of P.W. 12 we find that he stated categorically in his examination-in-chief that the body was in the advanced stage of decomposition. If a simple calculation of time is done, keeping in mind the post-mortem was held on 8.8.1983 at 1.30 p.m., the death of Ratan cannot be said to have been caused on 6.8.1983 at 10.30 a.m. but much earlier because the body was in the advanced stage of decomposition when the P.M. was held.
16) Time of occurrence is an important factor in case of murder. If it is found that death was caused earlier than the time mentioned in the F.I.R. and stated by the prosecution witnesses, a doubt automatically comes in. In Babu & Ors. Vs. State of U.P (Supra), the Apex Court in a different factual context accepted the view of the trial Court based on the post-mortem examination report regarding time of causing of death. In Ram Narayan Singh Vs. State of Punjab(Supra), the Apex Court also take a similar view putting much importance on the time of death basing on of the post-mortem report.
17) It is important to look at the inquest report and sketch map of the place of occurrence, i.e., exhibit 5 and exhibit 8 which show the place where the dead body was found lying. The exhibit 5 indicates clearly that the dead body was lying on the path way in front of the shop of one Ansar Ali Paik. The F.I.R. (exhibit 1) shows that incident had taken place in front of the house of Manik Paik (P.W. 1). P.W. 1 Manik Paik has stated that on the relevant date at about 10.30/11 A.M. while he was sitting in the Varandah of his shop, he found the appellants coming along the path way and assaulted Ratan in front of his shop with Bhojali. The P.W. 2 Lalbanu Bibi is the wife of brother of P.W. 1. She said that on 06.8.1983 at 10 a.m. she found Ratan was being assaulted by all the appellants in front the shop of P.W. 1. Ratan fell on the land and the appellants hit him with weapons. The P.W. 3 is Ijal Bibi, mother of P.W. 1 Manik. She stated that hearing hue and cry, she came out of the house and found Ratan was lying on the land in front the shop of Manik and the appellants were assaulting him with Bhojali and knife. We find that all the P.W. 1, 2 and 3 stated that the incident took place on the path way (land) in front of the shop of Manik. But according to the exhibit 5, i.e., the inquest report the dead body was found in front of the shop of one Ansar Ali Paik beside a pond. The P.W. 1, 2 and 3 did not state that any part of the dead body was lying inside the pond. The P.W. 4, Sister of deceased Ratan Mondal stated that hearing shouting of Manik and his mother, she came out of her house along with brother Gopal and mother, went to the shop of the P.W. 1 and found the dead body of Ratan was lying on the pathway. The P.W. 5 Pratima Mondal, another sister of deceased Ratan who came out of her house together with the P.W. 4 stated in her cross-examination that the legs of Ratan were inside the tank and remaining portion of the body was lying on the pathway. P.W. 6 Gopal Mondal is the brother of deceased Ratan Mondal who also came to spot together with P.W. 4 and P.W. 5. He found lower portion of the body of Ratan was inside the tank and the upper portion of the body was lying on the pathway. The legs of Ratan were hanging. He denied that he told police that he found Ratan in the water of the tank and Ratan was pulled out of the water to the path way. The P.W. 4 also denied that she told police that she found Ratan in the water of the tank and it was pulled out therefrom. P.W. 7 is a local person. He stated that on the fateful date at about 10 A.M. the incident took place infront the shop of P.W. 1. He accompanied Bhola Nath Mondal (since deceased) to the police station where Bhola Nath Mondal lodged one F.I.R. The P.W. 9, a local man, stated that he found the appellants fleeing toward village satkara with Bhojali and other weapons. After sometime he heard hue and cry and came to know that Ratan was murdered. He found dead body of Ratan lying in front of the house of P.W. 1 Manik. Some portion of the body was in the tank and remaining portion of the body was on the land. The P.W. 10 is mother of deceased Ratan. Although P.W. 3, 4 and 5 stated that mother of Ratan (P.W. 10) came to the spot together with them, she has not supported that fact. She simply stated that Ratan was murdered and she found the dead body of Ratan lying in front of the shop of Manik Paik. The P.W. 13, a local man, stated that on the relevant date at about 10.30/11 a.m., hearing hue and cry, he came out of his house and found P.W. 1 Manik was coming towards his house. Manik told him that Ratan was murdered. Hearing that, the P.W. 13 went to the place, i.e., front side of the shop of Manik where the dead body of Ratan was lying. The P.W. 1 Manik has stated that he informed Niranjan Mondal (P.W. 13) about the incident and thereafter informed mother of Ratan about the incident. So, it appears to us that Niranjan Mondal, i.e., P.W. 13 had been to the place of occurrence before the P.W. 4, 5, 6 and 10 could reach there. The P.W. 14, a local man, stated that he found legs of Ratan were inside the khal and body was on the land. The P.W. 17, the investigating officer of the case had been to the place of occurrence at 11.20 a.m. and came to know that the F.I.R. had already been lodged by the elder brother of deceased Ratan. He held inquest of the dead body of Ratan infront of the house of P.W. 1 Manik. In his cross-examination, he stated that he found the dead body of Ratan lying on the path way infront the shop of Manik and entire body of Ratan was covered with mud. The P.W.17 stated also that one witness Bharati told him that she found the body of Ratan in the tank and that she and Gopal (P.W. 6) lifted the body of Ratan to the path way. The P.W. 17, the I.O. further stated that Gopal (P.W.
6) also told him that he found the dead body of Ratan on the tank and lifted the body to the path way.
18) We have carefully scrutinized the above statement of the witnesses and the contents of the inquest report and sketch map of the place of occurrence. There are, no doubt, inconsistencies in the statement of the witnesses regarding the place where the dead body was found lying. According to some of the witnesses, lower portion of the body was lying in the tank while the upper portion of the body was lying on the land infront of the shop of Manik. According to the inquest report the dead body was lying infront of the shop of Ansar Ali Paik. According to the sketch map of the P.O., the dead body was lying on the path way in between the shop of Manik and the pond. The P.W. 17, the investigating officer of the case, categorically stated that the P.W. 6 and another witness told him that the dead body of Ratan was in the popnd which they lifted and placed on the path way. This inconsistency together with the fact that the dead body was placed before the P.W. 12 for post- mortem in advanced stage of decomposition creates a strong doubt as to the time, date and place of alleged commission of murder.
19) We are constrained to observe that the trial Court did not take all these factors into consideration. If medical evidence completely rules out the possibility of the prosecution story being correct, the Court would be at liberty to throw out the evidence of the eye witnesses if the inconsistency between the medical evidence and that of the eye witnesses cannot be reconciled. When the medical evidence completely rules out the possibility of the death of the deceased having taken place at about 10.30 a.m. on 6.8.1983, and if it is so, it would not be possible for the Court to act on the oral evidence for the prosecution witnesses which is directly in conflict with the medical evidence regarding the same occurrence and the manner of occurrence.
20) The F.I.R. (exhibit 4) shows that deceased Ratan Mondal and the P.W. 1 Manik Paik had been returning to their houses after making arrangement for cultivation of their land on the relevant date and time and when they reached infront of the house of Manik (P.W. 1), the appellants assaulted Ratan and caused his death. The P.W. 1 Manik stated that at the relevant date and time while he was sitting in the Varandah of his shop-cum-house, he found the appellants were coming along the pathway. He stated further that Ratan was standing infront of his shop. The appellants hit Ratan and caused his death. In his statement under section 164 Cr.P.C. (exhibit 1/d series), he stated that on the relevant date and time he was sitting in the Varandah of the shop of his brother Ansar Ali Paik. Five/seven (5/7) minutes, thereafter, Ratan came infront of his house and suddenly the appellants attacked Ratan, hit him and caused his death. The fact stated in the F.I.R. that deceased Ratan and Manik (P.W. 1) were coming together at the relevant time has not been supported by the P.W. 1 either in his statement before Magistrate or in course of trial. Again, his statement in course of trial that he was sitting on the Varandah of his shop-cum-house at the relevant time is not tallying with what he has stated before the Magistrate under section 164 Cr.P.C. There is inconsistency in his statement regarding his presence in the scene. In his statement under section 164 Cr.P.C., the P.W. 1 stated that one Mir Nur Islam helped the appellants to cross the river Hatakhali by his boat after the incident. That fact has not been stated by him in Court. Mir Nur Islam could be an important witness in this case. But, he was not cited and examined as a witness.
21) According to the prosecution case, Manik Paik (P.W. 1) informed the P.W. 17 about the incident of murder at about 11 A.M. The P.W. 17, after taking note of that information in the general diary proceeded to the place of occurrence and reached there at 11.20 A.M. The General diary entry so recorded by the P.W. 17 upon information of murder of Ratan given by Manik ( P.W. 1) was not placed before the trial Court and the trial Court had no opportunity to go through the contents of the said G.D. entry. Non-production of G.D. entry which disclosed murder of Ratan would have been a good piece of evidence. But, the prosecution did not produce the same before the Court.
22) According to the P.W. 1 and P.W. 17, that information of murder of Ratan was given at about 11 p.m. The incident allegedly taken place at 10.30/11 a.m. The P.W. 17 reached the place of occurrence at 11.20 a.m. and came to know that Bhola Nath Mondal (since deceased) had already lodged one F.I.R. This fact cannot be accepted because the police station, according to the exhibit 4(F.I.R.) was 31 Km. away from the place of occurrence and it has nowhere been mentioned how Bholanath could reach police station so quickly before 11.20 a.m. especially when he and other witnesses appeared in the scene after murder of his brother Ratan. The fact that Bhola Nath Mondal had already lodged one F.I.R. before the P.W. 17 reached the P.O. at 11.20 a.m. does not appear to be correct because the exhibit-1 shows that the matter was reported at 15.00 hours on 6.8.1983 by Bhola Nath Mondal. These discrepancies in the time of lodging of the F.I.R., presence of the P.W. 1 at the P.O., non-production of the G.D. entry altogether casts shadow of doubt on the version of the prosecution. We have noticed that the trial Court did not take these discrepancies into consideration.
23) P.W. 1 Manik Paik stated categorically that he was in custody of police from 6.8.1983 i.e. the date of incident till his statement under section 164 Cr.P.C. was recorded on 9.8.1983 by the Magistrate. It is not clear or prosecution has not given explanation as to why the statement of Manik was not recorded under section 164 Cr.P.C. immediately after the incident when he was in police custody on that particular date or on the next date. The possibility of P.W. 1 being tutored by police cannot be ruled out. It is not also clear why Manik was kept in police custody for three days.
24) According to the P.W. 17, he reached the place of occurrence at 11.20 a.m. and held inquest of the dead body of Ratan. The exhibit 5 is the inquest report which contains a paragraph showing that the P.W. 17 learnt on the spot that at about 11.30 the appellant attacked Ratan Mondal and killed him with knife. If, the I.O. i.e. P.W. 17 reached the place of occurrence at 11.20, it is not understood, how he could take note in the inquest report that the incident alleged took place at 11.30 i.e. after he reached the P.O.? This appears to be absurd to us. The trial Court did not take that fact into consideration also.
25) The P.W. 2 and 3 tried to suppress the fact that Ratan and his elder brother Bhola Nath (since deceased) were connected with criminal activities and many cases were pending against them and Manik P.W. 1. The P.W. 6, sister of deceased Ratan stated that Ratan and Bhola Nath had long standing dispute over landed properties with the appellants. She also admitted in her cross- examination that she, Ratan and others were arrested in connection with a Criminal case. Therefore, the prosecution version that the P.W. 1, 2 and 3 had no reason to implicate the appellant falsely in this case cannot also be accepted.
26) The P.W. 9 is a post ocular witness who had seen the appellants running towards village Satkara with bhojali and other weapons while he was standing infront of his house at about 10/11 A.M. Sometime thereafter he heard a hue and cry and asked the people who were running away as to what happened. They replied that Ratan was murdered. The P.W. 9 has not stated who told him that Ratan was murdered. None of the witnesses also has taken his name as the person to whom he disclosed about the murder of Ratan. His evidence appears to be hearsay and cannot be admitted into evidence.
27) From the discussion above, we find that there are many inconsistencies in the prosecution version which altogether casts a strong shadow of doubt as to the date, time and place of incident and credibility of the witnesses as well. We also find that a second possible view can well be taken from the facts and circumstances of the case as well as the evidence recorded by the trial court that Ratan was not murdered on the date, time and place as alleged but an earlier point of time ,date as well as at different place. The statements of the witnesses before the I.O. regarding floating of dead body of Ratan on the pond and pulling it out therefrom are also the factors enough to create a second possible view. It is settled principle of law that where there are two possible views, the one which goes in favour of the accused has to be accepted. Suspicion however strong it might be cannot substitute "proof". In such a situation, the appellant should have been given benefit of doubt by the trial Court.
28) It has been contended by Mr. Dastoor that the appellants were not examined under section 313 Cr.P.C. in a proper manner and important incriminating circumstance was not sought to be explained by the appellant in course of their examination under section 313 Cr.P.C. The appellants according to Mr. Dastoor, thereby, were highly prejudiced. In Machander Vs state of Hydrabad (Supra), the Apex Court opined that it is the duty of the Court to question the accused properly and fairly, bringing home in his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him and of affording him a chance to explain him if he can and so desires.
29) It is also settled principle of law that every error or omission in complying with Section 313 does not necessarily vitiate trial. But if for not bringing an important incriminating circumstance the accused is prejudiced, the trial stands vitiated (Namdeo Vs. State of Maharastha 1967 Cr.L.J 871). It is also trite law that not possibility of prejudiced but actual prejudice must be shown.
30) In the instant case, we find that the trial Court put two common questions to each and every appellant. The questions are quoted below:-
Question no. 1- " From the evidence of P.W. 1 Manick Paik, P.W. 2 Lalbanu Bibi and P.W. 3 Ijal Bibi, on behalf of the prosecution, it is found that your along with other accused persons on 6.8.1983 at about 10.30/11 a.m. in front of the shop of P.W. 1 Manick Paik, Murdered, Ratan Mondal of 4, Petushkhall within P.S. Basanti, District 24 Parganas with Bhojali etc. will you say anything about this matter?
Question no. 2. From the evidence of P.W. 9 Sambhu Mindha on behalf of the prosecution, it is also found that he saw your along with other accused persons were fleeing away towards village Sathari with Bhojali and other weapons. Will you say anything this about this matter?"
31) It is true that the trial Court did not put the incriminating circumstance separately to each and every appellants when they were examined 313 Cr.P.C. We also take note of the fact that charge framed against the appellants is free from any ambiguity.
The questions put to them in course of their examination under section 313 are in consonance with the charge framed against them. It is also true that they were not asked questions separately by the trial Court regarding their individual role in commission of the offence. But in our opinion, no prejudice has been caused to them which vitiated the trial. The appellants had sufficient knowledge about the charge framed against them for committing murder of Ratan on 6.8.1983 at about 10.30 A.M. They extensively cross-examined all the witnesses who supported the prosecution case. Therefore, simply because explanation for each and every incriminating circumstance was not sought for by putting questions separately, cannot be said to have caused prejudice to them actually. In this context, the decision of Apex Court in Iswar Singh Vs. State of U.P. (Supra) can well be referred to. The Apex Court upon consideration of the charge framed and the question put to the accused by the trial Court under section 313 Cr.P.C. came to a conclusion that the accused was not prejudiced in his trial because the eye witnesses repeated the story that the appellants caused murder in the manner it has been alleged. In the case in hand, the appellants knowing well the substance of the accusations, cross-examined all the eye witnesses and other witnesses extensively. Therefore, non-mentioning specific details, in our view, has not rendered the trial illegal. We, therefore, do not accept this contention of Mr. Dastoor.
32) However, we have already found that two possible views can be said to have arisen from the prosecution case. There is doubt as to time, date, place of commission of the alleged murder and the manner in which it was committed. There are many inconsistencies in the statement of the witnesses on material factual aspects which altogether are sufficient to create cloud of reasonable doubt on the prosecution case. The possibility that death of Ratan was caused on an earlier date and time than that of what has been stated in the F.I.R. cannot be ruled out. The possibility that the dead body of Ratan was found floating on the pond and it was pulled out therefrom on 6.8.1983 cannot also be ruled out. Therefore, we are of opinion that the view which goes in favour of the appellants ought to have been accepted by the trial Court and the appellants ought to have been acquitted on benefit of doubt.
33) We, accordingly, allow the appeal. No order as to costs is passed.
34) The judgement impugned is set aside. The appellants are not found guilty to the charges. They be set at liberty at once and discharged from bail-bonds.
35) Urgent photostat certified copy of the judgement, if applied for, be handed over to the parties on compliance of necessary formalities.
(Kanchan Chakraborty.J) (Nishita Mhatre.J)