Calcutta High Court (Appellete Side)
Palash Kazi & Ors vs State Of West Bengal on 14 March, 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.84 of 2014
Palash Kazi & Ors.
Versus
State of West Bengal
For the appellants : Mr. Sekhar Basu, Ld. Sr. Advocate,
Mr. Souvhik Mitter,
Mr. Antarikhya Basu
For the State : Mr. Ranabir Roy Chowdhury
Heard on : 07/12/2016, 30/01/2017, 31/01/2017, 03/02/2017, 07/02/2017, 09/02/2017
& 10/02/2017
Judgment on: 14/03/2017
Debasish Kar Gupta , J. :
This appeal is preferred by the appellants against judgment and order of conviction dated January 8, 2014 and sentence dated January 9, 2014 passed by the learned Additional Sessions Judge, 1st Fast Track Court Kandi, Murshidabad in Sessions Trial No.03 (March) of 2011 arising out of Sessions Case No.43 of 2011. By the impugned judgment and order of conviction the appellants were convicted for commission of offence punishable under Sections 147/148/302 read with Section 149 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and each of them were sentenced to suffer rigorous imprisonment for life for each of four (4) offences of murder as also to pay fine of Rs.10,000/-, in default, to suffer rigorous imprisonment for two years for the offence punishable under Section 302 of the I.P.C. read with Section 149 of the I.P.C. as also to suffer rigorous imprisonment for two years and to pay fine of Rs.1,000/- only, in default, to suffer rigorous imprisonment for six months for the offence punishable under Section 147 of the I.P.C. and to suffer rigorous imprisonment for three years as also to pay fine of Rs.1,000/-, in default, to suffer rigorous imprisonment for six months for the offence punishable under Section 148 of the I.P.C. All the aforesaid sentences of substantive imprisonment were directed to run consecutively.
The fact of case in a nutshell is as under:-
On September 12, 2010 at about 08.45 hours an information was received in Khargram Police Station, District-Murshidabad from an unknown person of village-Budhrapara, District-Murshidabad, over telephone regarding quarrel in between two rival groups. The above information was diarised in the above police station under G.D. Entry No.480 dated September 12, 2010. On receipt of the above information PW 17, the then Officer-in-Charge of Khargram police station, District-Murshidabad, left the police station with his force after making a G.D. Entry No.481 dated September 12, 2010 at 08.55 hours.
After reaching at this spot he found four dead bodies of Ajibar Rahaman, Bajal Sk., Salam Sk. and Jamatuddin respectively. A written complaint was handed over to him by one Bulbul Sk. (PW 1) at 10.15 hours which was forwarded to the Khargram police station, District-Murshidabad, through Constable Monoranjon Chatterjee. After making of G.D. Entry No.483, a formal FIR being Khargram P.S. Case No.213/10 dated September 12, 2010, was registered in the police station against 12 accused persons at 11.45 hours initiating a case against them for commission of offence punishable under Sections 447/307/302/440/34 of the I.P.C. and 25/27 of the Arms Act. The above FIR was forwarded to the Court of learned Additional Chief Judicial Magistrate at Kandi, Murshidabad on September 13, 2010.
According to the above written complaint, on September 12, 2010 Bulbul Sk. (PW 1) of village- Budhrapara, police station Khargram, District-Murshidabad went to their agricultural land situated at Budhrapara Paschim Math to weed paddy with Jamatuddin (father), Bajal Sk. (uncle), Ajibar Rahaman (uncle) and Salam Sk. (cousin). At about 07.15 hours he found (1) Israil Molla, (2) Piyarul Sk., (3) Jamirul Sk, (4) Mirajul Sk, (5) Ansar Sk, (6) Hasai Sk, (7) Amarul Sk, (8) Palash Kazi, (9) Nural Sk, (10) Baral Sk, (11) Amirul Sk and (12) Najir Sk armed with weapons namely, hasua, pistol, sutter were running with their associates towards the aforesaid paddy field. The PW 1 fled away for hiding him in the paddy field and watched the entire incident which took place in their aforesaid agricultural field situated at Budhrapara Paschim Math therefrom. The above written complaint contained that the aforesaid Jamirul Sk opened fire from his pistol aiming at the ear of Ajibar Rahaman. Thereafter, Israil Molla, Piyarul Sk, Mirajul Sk, Hasai Sk, Amarul Sk, Palash Kazi, Nural Sk also opened fire aiming at Jamatuddin. Piyarul Sk, Mirajul Sk and Ansar Sk opened fire aiming at Bajal Sk. And Salam Sk. Then the aforesaid appellants started dancing taking the aforesaid dead bodies. They also uprooted paddy from the field.
The case was handed over to S.I. Shyamal Dutta (PW 18) for investigation. PW 18 prepared inquest reports of the dead bodies of aforesaid deceased persons at the aforesaid agricultural land in village-Budhrapara in between 10.20 hours to 11.55 hours on that date with reference to U.D. Case No.34/10, 34A/10, 34B/10 and 34C/10 all dated September 12, 2010. Subsequently, the investigation of the above case was handed over to PW 19 on September 25, 2010 by an oder passed by the Superintendent of Police, Murshidabad,C.D. According to the preliminary investigation as recorded in the aforesaid inquest reports, there was a dispute among the relatives of the deceased persons regarding cultivation of the land in question. On the date of occurrence the deceased persons were murdered by those relatives when they had visited the agricultural land in the morning. The aforesaid dead bodies were sent to Kandi Sub Divisional Hospital through Constable Narendra Nath Dey (PW 12) for post mortem of those dead bodies.
The post mortem examinations over the aforesaid four dead bodies were conducted by Dr. Tapas Chandra Das (PW 16) on September 12, 2010. According to the opinion of PW 16, the causes of deaths of the deceased were the effects of head injuries subject to detection of final cause of death on receipt of visceral report of the forensic laboratory.
Though FIR was lodged against 12 accused persons, charge sheet no. 343 was filed on December 10, 2010 against 14 accused persons alleging commission of offence punishable under sections 447/307/302/440/212/34 IPC. Supplementary charge sheet no. 226/12 dated September 10,2012 under sctions447/307/302/440/212/34 IPC and 25(1)(a)/35 Arms Act and Supplementary charge sheet no. 266/12 dated November 14, 2012 under sections 447/307/302/440/212/34 IPC and 25(1)(a)/35 Arms Act were also filed against appellants, amongst other accused persons. Till the time of submitting charge sheet 8 accused persons were arrested. Subsequently, on February 17, 2011 accused Nural Sk was arrested.
Charge against 9 accused person (appellants) was framed on March 31, 2011 for commission of offence punishable under sections 147/148/149/302 IPC causing rioting with deadly weapons and murdering Jamatuddin Sk and Ajibar Rahaman intentionally. The trial commenced against the 9 appellants on and from August 8, 2012.
Subsequently, the charge was altered against the appellants by an order dated September 1, 2012, for commission of offence punishable under sections 147/148/149/302 IPC causing rioting with deadly weapons and murdering Jamatuddin Sk, Ajibar Rahaman as also Bajal Sk and Salam Sk.
After receiving two supplementary charge sheets as mentioned hereinabove, the charge framed against the appellants by aforesaid order dated September 1, 2012, was altered once again by an order dated January 29, 2013 for adding Sections 25(1)(a)/27 of the Arms Act, to the charges which had already been framed against the appellants.
After considering the oral evidence of 19 prosecution witnesses and documentary evidences as also the statements of the accused persons recorded under Section 313 of the Cr.P.C. the impugned judgment, order of conviction and sentences were passed.
It is submitted by Mr. Sekhar Basu, learned Senior Advocate, appearing on behalf of the appellants that the charges framed against the appellants were not proved beyond all reasonable doubts for the following reasons:-
(i) The prosecution failed to prove the place of occurrence beyond reasonable doubt in view of the contradictions in the evidence of purported eyewitnesses as also with the place of occurrence mentioned in the FIR and the charges.
(ii) The prosecution failed to remove the serious doubt with regard to commission of offence by the appellants due to non-disclosure of the names of the appellant by the PW 8 and PW 9 (purported eyewitnesses) before the investigating officer in course of preliminary investigation at the time of inquest examinations over the dead bodies of the deceased persons though the appellants were known persons to the aforesaid witnesses.
(iii) There was serious departure from the prosecution case as made out in the FIR, evidence adduced by PW 1 in Court with the evidence adduced in Court by other purported eyewitnesses read with the evidence of the medical expert (PW 16) with regard to nature of injury sustained by all the deceased persons. According to the FIR and the evidence of PW 1, the causes of death of the deceased persons were gunshot injuries while according to the oral evidence of the other purported eyewitnesses read with the post mortem report and the evidence of medical expert (PW 16) the caused of death were head injury caused by weapons other than firearm. No firearm or bullet was brought on record.
(iv) Fair trial was denied to the appellants causing prejudice to them consequent upon denial of extending the opportunity of cross-examining the PW 1 to PW 8 recalling them after modification of the charges on two occasions. PW 1 to PW 5 were examined in course of trial before modification of the charge for the first time on September 1, 2012 and PW 6, PW 7 and PW 8 were examined partially in course of trial before alteration of charges on January 9, 2013 for the second time. Though there was cosmic compliance of principle of natural justice asking the learned advocate appearing on behalf of the appellants to submit the questions in writing before the learned trial Judge which would be put to the aforesaid witnesses.
(v) There was failure to disclose all incriminating circumstances to the appellants while recording their respective statements recorded under Section 313 of the Cr.P.C. causing great prejudice to them.
Reliance is placed by Mr. Basu on the decisions of Mamfur Chowdhury & Ors. vs. King Emperor, reported in AIR 1924 Cal 323, Syed Ibrahim vs. State of Andhra Pradesh, reported in JT 2006 (6) SC 597, Paresh Chandra Mondal & Anr. vs. The State of West Bengal, reported in (2016) 2 CAL LT 400, unreported judgment dated January 11, 2016 passed in CRA 840 of 2013 with CRA 892 of 2013, State of Gujarat vs. Patel Mohan Mulji & Anr., reported in 1994 CRI. LJ 280, Mobarak Sk. @ Mobarak Hossain vs. State of West Bengal, reported in (2011) 1 C Cr LR (Cal) 687, Fanil Das & Ors. vs. State of West Bengal, reported in 2014 (3) CLJ (Cal) 108, Sanjay vs. State of Uttar Pradesh, reported in AIR 2016 SC 282, Nankaunoo vs. State of U.P., reported in AIR 2016 SC 447, Machander vs. State of Hyderabad, reported in AIR 1955 SC 792, Anil Kumar Jha @ Laltu vs. State of West Bengal, reported in (2016) 2 CAL LT 101, Lakshmi Singh & Ors. vs. State of Bihar, reported in (1976) 4 SCC 394, Sunil Kundu & Anr. vs. State of Jharkhand, reported in (2014) 1 C Cr LR (SC) 49 and Prakash vs. State of Karnataka, reported in 2014 (3) Supreme 460 in support of his above submissions.
It is submitted by Mr. Ranabir Roy Chowdhury, learned advocate appearing on behalf of the State respondent that the place of occurrence is proved beyond any reasonable doubt from the evidence of eyewitnesses as also G.D. Entry Nos.480, 481 both dated September 12, 2010, the FIR, inquest reports, seizure lists in respect of seizure of blood stained earth, controlled earth, firearm and life bullets, challan sending the dead bodies to Kandi Sub Divisional Hospital morgue.
According to Mr. Roy Chowdhury, the cause of injury appeared from the evidence of PW 2, PW 3, PW 8 and PW 11. The deceased persons were assaulted with the help of bamboo stick, wooden lathi, sickle/hasua, lathi etc. According to the evidence of PW 1, though bullets were fired from the firearms by the appellants, no injury arising out of such firing was mentioned in his evidence. According to the evidence of PW 4, though he had heard the sound of firing he could not say whether any of the bullets hit the deceased persons. The above evidence was corroborated by the post mortem reports.
According to him, the description of wearing apparels as surfaced from the inquest reports were corroborating with Exbt.-7.
Regarding the non-disclosure of the names of the appellants in the inquest report by the PW 8 and PW 9, it is submitted by Mr. Roy Chowdhury that the preliminary investigation as recorded in the inquest reports revealed that the commission of offence was by the relatives of the deceased persons due to existence of dispute in between them regarding the land in question.
It is also submitted by him that the common object of unlawful assembly of the appellants for commission of murder of the deceased persons was proved from the evidence of PW 1 and PW 11 that after commission of murder the appellants started dancing at the place of occurrence with the dead bodies of the deceased persons.
According to him, sufficient opportunity was given to the learned Counsel appearing for the appellants by the learned trial Judge in his order no.38 dated September 1, 2012 granting liberty to him to furnish questions in writing which might have been put to the witnesses in course of their further cross- examination. No step was taken by the learned Counsel appearing on behalf of the appellants in response thereto nor any objection was raised. So, there was no question of the appellants being prejudice consequent upon alteration of the charges framed against them in view of the provisions of Section 464 of the Cr.P.C.
It is submitted by Mr. Roy Chowdhury that all questions relating to incriminating circumstances were asked to the appellants including the place of occurrence while recording their statements under Section 313 of the Cr.P.C.
It is submitted by him that the prosecution case was proved beyond all reasonable doubts from the evidence on record and the trial was not vitiated since Exbts.-1, 2 and 8 relating to seized weapons had not been proved due to the fault on the part of the investigating agency.
Reliance is placed by Mr. Roy Chowdhury on the decisions of Bhupendra Singh & Ors. vs. State of U.P., reported in 2009 (12) SCC 447 and Yogesh Singh vs. Mahabeer Singh, reported in 2016 (10) JT 332 in support of his above submissions.
A. Place of occurrence:-
In the written complaint, "Budhrapara Paschim Math" District- Murshidabad was described as place of occurrence. The inquest examinations on the dead bodies of all the four (4) deceased persons were conducted at the agricultural land of village-Budhrapara, District-Murshidabad.
According to the prosecution case, 8 persons, namely, PW 1, PW 2, PW 3, PW 4, PW 5, PW 8, PW 9 and PW 11, witnessed the commission of offence of murder of the deceased persons. Out of them PW 1 was the FIR maker. According to his evidence, the place of occurrence was the paddy field of the deceased lying and situated within Eroali mouza where they were weeding paddy on September 12, 2010 at 07.15 hours, i.e. the date and time of the incident of murder of the aforesaid four persons.
The above portion of evidence that the place of occurrence was the paddy field/agricultural field of the deceased and the incident of their murder took place while they were weeding their above field on September 12, 2010 at the time of incident, was fully corroborated by the evidence of the other 7 eyewitnesses though each of them described the place of occurrence in his own way. According to the evidence of PW 2, the incident occurred while the deceased persons were weeding their land in the contiguous north-east corner of Chhatar Pukur. According to the evidence of PW 3, the incident took place when the deceased persons were weeding their field. According to the evidence of PW 4, the incident occurred when the deceased persons went to weed their field on the date of incident. In cross examination he deposed that the distance of the place of occurrence from Chhater Pukur was 3 bighas. Similarly, PW 5 stated in evidence that the incident took place when the deceased were weeding their field on the date and time of the incident. While there was corroboration of the above evidence with that of the PW 8, he added that it was near Chhater Pukur. Similarly, the evidence of PW 9 was in corroboration with those of the other eye witnesses. He added that he was weeding the field from the western side to eastern side and the appellant came to the place of occurrence from his back side. According to him, the place of occurrence was on the western side of Budhrapara village. While the evidence of the PW 11 was in corroboration with the other witnesses, he added that the he heard the noise from his backside when he was weeding his field from the western side facing eastern side.
From the evidence of PW 18, it was evident that the place of inquest examination over the dead bodies of the deceased persons was cultivation fields of Budhrapara.
Conjoint reading of the aforesaid evidences revealed that the deceased persons went to their paddy field for weeding. The aforesaid paddy field was lying and situated at the western side of Budhrapara village within Eroali Mouza, P.S.-Khargram, District-Murshidabad and known as Budhrapara Paschim (Western) Math. The place of occurrence was situated near Chhatar Pukur Math. So, the impugned judgement does not require interference in respect of the place of occurrence.
Since there was no failure on the part of the prosecution to prove the place of occurrence beyond any reasonable doubt, the decisions of Mamfru Chowdhury (Supra), Syed Ibrahim (Supra), Paresh Chandra Mondal (Supra) and Asraf Biswas (Supra) donot help the appellants .
B. Non-disclosure of names of the appellants at the time of preliminary investigation during inquest examinations over the bodies of the deceased persons:-
According to the principles of law settled by the Hon'ble Supreme Court in Pedda Narayana & Ors. vs. State of Andhra Pradesh, reported in (1975) 4 SCC 153, the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appeared to be foreign to the ambit and scope of the proceeding no consideration by the Apex Court under Section 174 of the Cr.P.C. Neither in practice nor in law was it necessary for the police who mentioned those details in the inquest report.
It was observed by the Hon'ble Supreme Court in the matter of Amar Singh vs. Balwinder Singh & Ors., reported in (2003) 2 SCC 518 that the basic purpose of holding an inquest was to prepare a report regarding the cause of death, namely, whether it was suicidal, homicidal, accidental or by some machinery.
Upon consideration of the evidence on record we find that the PW 18 received the letter of complaint on September 12, 2010 at 10.15 hours in course of his visit at the place of occurrence containing the names of appellants, amongst others, as persons responsible for commission of murder of four deceased persons. After forwarding the above written complaint to the police station for registration of formal FIR, the PW 18 started inquest examinations over the dead bodies of the deceased persons. After formal registration of the FIR bearing Khargram P.S. Case No.213/10 dated September 12, 2010 at 11.45 hours the same was forwarded to the Court of learned Additional Chief Judicial Magistrate, Kandi, Murshidabad, on the next date i.e. on September 13, 2010.
Therefore, the names of the appellants as assailants came to the knowledge of the PW 18 before starting inquest examinations over the dead bodies. In the inquest reports, though it was recorded that the deceased persons were murdered by their relatives as a result of a dispute amongst those relatives and the deceased persons regarding the cultivation of the land in question, the names of the accused including the appellents were not mention specifically therein.
There was no dispute regarding the fact that though PW 8 and PW 9 were the signatories of the inquest reports as witnesses, who were eyewitnesses according to the prosecution case, the names of the appellants were not incorporated in the inquest reports. But PW 8 stated in cross examination that he had disclosed all the facts to the police and had put his LTI on the paper written by the police. He could not say what was written in that paper because he was an illiterate person. In examination in chief, the PW 9 disclosed the relationship of the appellant with Merina, the wife of the appellant Palash Kazi. According to his evidence, after the death of his first wife Chandnehar Bibi the deceased Azizur Rahaman had married Merina on condition that 3 bighas of land would be given to him. Subsequently, Marina married appellant Palash Kazi due to love affairs. The deceased Azizur went to the place of occurrence on the date of incident to take possession of the land in question on the strength of a decree and as per salishi.In his cross examination, he disclosed that the accused were known to him as relatives of the deceased. He further disclosed that he had been interrogated by police near the dead bodies. Admittedly, PW 18 had received the written complaint from PW 1, who was an eyewitness of commission of murder of the deceased persons according to the prosecution case.
In view of the above evidence on record, PW 18 was admittedly responsible for non-incorporation of the names of the appellants in the inquest report while recording the report of the preliminary investigation therein. Therefore, in view of the above facts and circumstances of this case, absence of the names of the appellants in the inquest reports could neither be termed to be fatal nor it would warrant a benefit to the accused persons resulting in dismissal of the prosecution case.
The decision of a Division Bench of this Court in Mobarak Sk. @ Mobarak Hossain (supra) does not help the appellants in this case in view of the distinguishable facts and circumstances that in the aforesaid case though the names of the assailants had been transpired and they were named in the FIR before commencement of the inquest examinations over the dead bodies, the assailants were mentioned as unknown miscreants in the inquest report unlike the case in our hand. In the case in our hand, though the names of the assailants/appellants were not mentioned in the inquest report, it was recorded that the deceased persons were murdered by their relatives due to a dispute in respect of the land in question.
Further the decision of Mobarak Sk. @ Mobarak Hossain (supra) was based on the settled principles of laws decided by the Hon'ble Supreme Court in the matter of Meharaj Singh vs. State of U.P., reported in 1994 SCC (Cr) 1390 on the observation of the Supreme Court which had been upheld by a three judges Bench of the Apex Court in the case of Thanedar Singh vs. State of M.P., reported in (2002) 1 SCC 487. In the case of Thanedar Singh (supra) the Hon'ble Supreme Court took into consideration the fact that the absence of the details of FIR in the inquest report was indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape in view of the further fact that the FIR came to be recorded later on after due deliberations and consultations and was therefore ante-timed to give it colour of a promptly loded FIR. Needless to point out that the case in our hand, the FIR was registered on the date of the incident and subsequently forwarded to the Court on the next date without any delay and any laches on the part of the investigating agency containing the names of the appellants therein. The post mortem examination was conducted over all the 4 dead bodies on the date of incident with reference to the aforesaid FIR. For the same reason the decisions of Patel Mohan Mulji (Supra) and Fanil Das (Supra) do not come to the aid of the appellants.
So, there is no substance in this contention of the appellants.
C. Serious departure from the prosecution case as made out in the FIR, evidence adduced by PW 1 in Court with the evidence adduced in Court by other eyewitnesses as also evidence of medical expert:- Using of the lathi, hansua/sickle as weapons of offence by the appellants for commission of offence in question was common in the evidence of PW 2, PW 3, PW 4, PW 8 and PW 11 who were the eyewitnesses according to the prosecution case. PW 2, PW 4, PW 8 and PW 11 further stated in their respective evidences that the appellants were carrying firearms with them apart from lathi, hansua/sickle. According to the evidence of PW 8 and PW 11, the appellants assaulted the deceased persons with the gun apart from lathi and hansua/sickle.
PW 1 only stated that some of the appellants opened fire arriving at the place of occurrence and assaulted the deceased persons with henso. He further stated that appellant Israil Molla and Baral Sk opened fire from their firearms aiming at his father Jamatuddin Sk. Subsequently, appellant Piyarul Sk also opened fire at his aforesaid father.
According to the evidence of PW 4, he heard the sound of firing from the place of occurrence at the material point of time. But he could not say whether any of the deceased person sustained gunshot injury. From the evidence of the first I.O. (PW 18) it appeared that on the date of occurrence i.e. on September 12, 2010 in between 14.30 hours to 15.45 hours one improvised pipe gun, one improvised musket, .12 bore live ammunitions and two rounds of .303 live ammunitions were seized from the cultivated paddy field of Budhrapara under Eroarli Mouza situated on the western side of Budhrapara village. The above evidence was corroborated by those of PW 13 and PW 14, the witnesses of the aforesaid seizure lists.
According to the evidence of PW 16, the cause of death was due to effect of shock and heamorrhage consequent upon sustaining head injuries and poly trauma. According to his evidence and post mortem report none of the deceased persons sustained gunshot injury.
From the aforesaid evidences, no doubt could be cast on prosecution case that the appellants came to the place of occurrence with firearms apart from lathi and hansua/sickle and there was also seizure of firearm and live bullets from the place of occurrence on September 12, 2010. But the cause of death of none of the deceased persons was gunshot injury.
It would not be out of context to observe that it was not the evidence adduced by the PW 1 that any of the deceased person sustained gunshot injury though the appellant Jamirul Sk opened fire aiming at Ajibar Rahaman, appellant Israil Molla and Baral Sk opened fire aiming at Jamatuddin Sk and subsequently appellant Piyarul Sk also opened fire aiming at the aforesaid Jamatuddin Sk.
Inview of the distinguished facts and circumstances of the case in hand, the decisions of Sanjoy (Supra), Nankaunoo (Supra), Laksmi Singh (Supra), Sunil Kundu (Supra) and Prakash (Supra) have no manner of application in this case.
Therefore, the impugned judgment does not require our interference on this ground.
D. Denial of fair trial consequent upon denial of extending the opportunity of cross-examining the PW 1 to PW 8 recalling them after alteration of charges on two occasions:-
On March 31, 2011 charges were framed against the appellants for commission of offence under Sections 147, 148, 320/149 of the I.P.C. By order no.38 dated September 1, 2012 the charge framed against the appellants was altered by incorporating the name of Salam Sk as deceased person taking into consideration that names of three other deceased persons out of four deceased persons had been mentioned in the charge framed on March 31, 2011. Though the learned Judge was of the view that no new fact or question of law had been incorporated in the charge and it would not be re-examine or cross-examine further to the witnesses who had already been examined liberty was given to either of the parties to file petition by September 11, 2012 i.e. the next date of hearing of the trial mentioning the question for examination or further cross- examination of witnesses who had already been examined relating to modification and alteration of charge only. No petition was filed by either of the parties availing of the aforesaid opportunity. By order no.52 dated January 29, 2013 the charge was further altered by adding Sections 25 (1) (a)/27/35 of the Arms Act with the previous charges under Sections 147/148/149/302 of the I.P.C. None of the appellant was convicted for commission of offence punishable under Sections 25(1)(a)/27/35 of the Arms Act.
In order to adjudicate this contention of the appellants the provisions of Section 217 of Cr.P.C. is quoted below:-
"217. Recall of witnesses when charge altered.- Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed-
(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material."
Section 217 of the Cr P C purports that whenever a charge is altered or added to by the court after commencement of the trial it cannot be presumed, unless the court passes a specific order that a new trial has commenced, that a new trial has commenced only because of an alteration or addition to a charge which has been read over and explained to the accused. That apart, any direction given by the court has to be judged on the touchstone of prejudice to the accused or prosecution. Reference may be made to the decision of Ranbir Yadav Vs. State of Bihar, reported in (1995) 4 SCC 392 and the relevant portion of the above decition is quoted bellow :-
"23. . . . . . Section 217 of the Code provides that whenever a charge is altered or added to by the court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the court for reasons to be recorded in writing considers that the desire to recall or re-examination such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the court may think to be material. On a combined reading of the above two sections it is, therefore, evident that after an alteration or addition of the charge the interest of the prosecution and the accused has to be safeguarded by permitting them to further examine or cross- examine the witness already examined, as the case may be, any by affording them an opportunity to call other witnesses. It is undoubtedly true that discretion has been given to the court to direct a new trial after addition or alteration of any charge, but it does not mean that every such addition or alteration in the charge which has been read over the explained to the accused would lead to inevitable inference that the court has directed a new trial for them. It, therefore, follows that unless the court passes a specific order and directs a new trial it cannot be presumed that a new trial has commenced only because an alteration or addition to a charge which has been read over and explained to the accused has been made. Indeed the order dated 30-4-1987 shows that while directing the prosecution to examine the 4 witnesses afresh the 5th Court adjourned the case for further trial and did not direct fresh trial. This apart, any such direction given by the court has to be judged on the touchstone of prejudice to the accused or the prosecution. In the instant case, as has already been noticed after the addition of charges the prosecution expressly stated that they did not want to further examine the four witnesses already examined but they were willing to produce them if the accused so wanted. The accused, however, did not avail of this opportunity in accordance with Section 217 of the Code and, therefore, it is too late in the day for them to raise a grievance on that score. We hasten to add that even if we had found that there was any irregularity in the continuation of the trial against the appellants after the additional charges were framed, we would not have been justified in setting aside the impugned judgment on that ground alone for there is not an iota of material on record wherefrom it can be said that a failure of justice has occasioned thereby. To put it differently, in our view in such a case Section 465 of the Code would have squarely applied."
(Emphasis supplied) Now coming back to the evidence available on record in this case it is evident that by order no.38 dated September 1, 2012 opportunity was given to either of the parties to file petition by the next date of hearing mentioning the question for re-examination or further cross-examination of the witnesses. Admittedly, the appellants did not avail of that opportunity in accordance with the provisions of section 217 Cr.P.C. Nor prejudice has been pleaded in the Memorandum of Appeal in this regard. Therefore, it is too late in the day for the appellants to raise grievance on that ground in course of hearing of the appeal. Regarding the alteration or addition of Section 25 (1) (a)/27/35 of the Arms Act with previous charges under Sections 147/148/149/302 of the I.P.C. in accordance with the provisions of Section 216 of the Cr.P.C. by order no. 52 dated January 29, 2013 none of the appellants is convicted for commission of offence punishable under Section 25 (1) (a)/27/35 of the Arms Act. Further, no ground is taken in the memorandum of appeal with regard causing prejudice to the appellants consequent upon denial of opportunity to the accused for re- examining any of the prosecution witnesses in view of the settled principles of law as discussed hereinabove. Or in other words, It would not be justified to set aside the impugned judgement on this ground alone for there is not an iota of material on record showing failure of justice.
E. Failure to disclose or incriminating circumstances of the appellants while recording their respective statements under Section 313 of Cr.P.C. causing great prejudice to them thereby:-
After considering the respective statements of the appellants recorded under Section 313 of the Cr.P.C., we find that identical question nos.3, 4, 5 and 8 were put to all the appellants relating to the date and time and place of occurrence relating to commission of offence, the places where the dead bodies were lying, the manner in which the deceased persons were murdered and the reason behind the commission of the offence, respectively.
Coming back to the case in hand it is evident from the aforesaid question no.3 put to all the appellants that according to the evidence of PW 18 the date and time of commission of murder of 4 deceased persons were disclosed. In question no.4 the attentions of the appellants were drawn to the relevant portion of the evidence of PW 18 relating to the places where the dead bodies of the aforesaid 4 deceased persons were lying with reference to the rough sketch map where the aforesaid dead bodies were lying. The dead body of the deceased Jamatuddin was lying in cultivation land of Afsar Sk of village-Budhrapara, dead body of the deceased Ajibur Rahaman, Bajlu Sk were lying in the cultivation land of Yasin Sk and that of the deceased Salam Sk was lying in the cultivation land of Ajibur Rahaman. From question no.5 it is evident that attentions of the appellants were drawn towards the relevant portion of the evidence of PW 1 that the place of occurrence was the paddy field. The commission of offence by the appellants took place at the aforesaid place of occurrence on September 12, 2010 at about 07.15 hours when the deceased persons with their associates including PW 1 weeding their field. The attention of the appellants were also drawn towards the evidence of PW 1 to the effect that at the aforesaid point of time the appellants arrived at the place of occurrence, started firing as also attacked and assaulted the deceased with henso. In view of the above fact it is clear that attention of the appellants were drawn towards each and every incriminating circumstances properly and fairly for offering explanations to record their statements under Section 313 of the Cr.P.C. In question no.8 the attentions of the appellants were drawn with regard to the motive behind the commission of offence in view of the dispute relating to the title and possession of the land in question.
The Hon'ble Supreme Court in the decision of Wasim Khan vs. The State of Uttar Pradesh, reported in AIR 1956 SCC 400 laid down the law relating to the recording of statement of an accused under Section 313 Cr.P.C. (previously Section 342 of the Old Act) and the relevant portion of the above decision is quoted below:-
"5. We have examined the statement of the appellant recorded under S. 342, Criminal P.C. by the Sessions Judge. At the very commencement of the record of that statement, the Sessions Judge read out the appellant's statement under S. 342, Criminal P.C. before the Committing Magistrate and enquired whether it was correct, to which the appellant replied in the affirmative.
The statement of the appellant before the Magistrate is admissible under S.287, Criminal P.C. The Magistrate pointedly asked the appellant as to whether he along with the other accused murdered Ram Dularey and had taken his property to which the appellant replied in the negative. It was not necessary for the Sessions Judge to specifically repeat the same when the appellant admitted his statement before the Committing Magistrate as correct when read out to him.
Apart from this, when the statement of the appellant to the Sessions Judge is read as a whole, it clearly shows that the appellant knew what the accusation against him was and he offered and explanations for the disappearance of Ram Dularey from his cart and for his possession of the deceased's goods. There is no justification for supposing that there had been any prejudice caused to the appellant on account of improper or insufficient recording of this statement by the Sessions Judge under S. 342 Criminal P.C."
Therefore, on the basis of the aforesaid settled principles of law the impugned judgment does not require our interference upon consideration of the facts and circumstances discussed hereinabove.
This appeal stands dismissed.
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.)