Calcutta High Court (Appellete Side)
Mukhtar @ Moktar Mondal & Ors vs The State Of West Bengal on 22 November, 2017
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 634 of 2008
Mukhtar @ Moktar Mondal & Ors.
Vs.
The State of West Bengal
With
CRA No. 660 of 2008
Pintu Roy & Ors.
Vs.
The State of West Bengal
With
CRA No. 673 of 2008
Rejaul Mondal @ Reja Bokra
Vs.
The State of West Bengal
With
CRA No. 732 of 2008
Pralay Roy Chowdhury @ Puchke @ Pinku
Vs.
The State of West Bengal
For the Appellants in CRA 634/2008, : Mr. Milon Mukherjee, Ld. Sr. Advocate
CRA 673/2008 & CRA 732/2008 Ms. Priyanka Dutta, ld. Adv.
Ms. Paulomi Banerjee, ld. Adv.
Mr. Rahul Ganguly, ld. Adv.
For the Appellants in CRA 660/2008 : Mr. Jayanta Narayan Chatterjee, ld. Adv.
Mr. Balaram Sardar, ld. Adv.
Mr. Apalak Basu, ld. Adv.
Mr. Dwaipayan Biswas, ld. Adv.
Ms. Jolly Dey, ld. Adv.
Mr. Amit Biswas, ld. Adv.
Ms. Moumita Pandit, ld. Adv.
Mr. Tirthankar Dey, ld. Adv.
Ms. Priyanka Ghosh Chowdhury, ld. Adv.
Mr. Emon Bhattacharya, ld. Adv.
: Mr. Ranabir Roychowdhury, Ld. Advocate
Mr. Mainak Gupta
For the State
Heard on : 18.07.2017, 19.07.2017, 24.07.2017, 25.07.2017,
26.07.2017, 27.07.2017, 28.07.2017, 31.07.2017, 01.08.2017,
02.08.2017, 03.08.2017, 04.08.2017, 7.8.2017, 8.8.2017.
Judgment on : 22.11.2017
Md. Mumtaz Khan, J. :
These appeals have been preferred by the appellants assailing the judgment and order of conviction and sentence dated August 29, 2008 and August 30, 2008 respectively passed by the learned Additional Sessions Judge, Bongaon, North 24-Parganas in Sessions Trial No. 1(1)08 arising out of Sessions Case No. 1(11)07. By virtue of the impugned judgment appellants were convicted and sentenced to suffer imprisonment for life and to pay a sum of Rs. 1,000/- each in default of which each of them to suffer rigorous imprisonment for one month for commissioning of the offence punishable under Section 302/120B of the Indian Penal Code (hereinafter referred to as IPC) and in addition to that appellants Pintu Roy, Madhabi Roy and Pralay Roy Chowdhury @ Puchke @ Pinku were also convicted and sentenced to suffer rigorous imprisonment for one year each for the commission of the offence punishable under Section 379 IPC and rigorous imprisonment for one year each for the commission of the offence punishable under Section 411 IPC while appellants Miaraj Mondal, Malek Mondal @ Khalek, Sawkat Mondal were also convicted and sentenced to suffer rigorous imprisonment for 3 years each and to pay fine of Rs. 1,000/- each in default of which each of them to suffer rigorous imprisonment for one month more for commission of the offence punishable under Section 25(1)(a) of the Arms Act and each of them to also suffer rigorous imprisonment for 3 years each and to pay a fine of Rs. 1,000/- each in default of which each of them to suffer rigorous imprisonment for one month more for commission of the offence punishable under Section 27(1) of the Arms Act with a direction that substantive sentences shall run concurrently.
The case of the prosecution, in brief, is as follows:
On June 10, 2007, one telephonic information regarding the death of the victim, Subhas Biswas was received by Officer-in-charge of the Gopal Nagar P.S. (P.W.31). He then after diarizing the said information in the P.S register instructed S.I. Gopal Chandra Naskar (P.W.30) to proceed to that place and investigate the matter. Thereafter, both P.W.30 and P.W.31 proceeded to the place of occurrence and on reaching there they found the dead body of the victim lying in a bleeding condition. One written complaint was then handed over by P.W.1 to P.W.31, stating therein that on that date at about 7.30 p.m. his deceased father Subhas Chandra Biswas set out from his STD booth at Akaipur market to his house at Aitpara by riding a motor cycle bearing No. WB - 26/8228. Thereafter, at about 7.50 p.m. he heard a sound of firing bullet and bomb blast and came to learn that his father had been murdered. He then proceeded towards his house along with some local people and when they reached near the house of Chitta Biswas, he saw his father lying dead with fatal bleeding injuries. It was his firm belief that Dilip (Kalu) Roy, Sanjit Roy, Jharu Roy and Kamal Hossain who set out towards his village by cycle 05 minutes before the departure of his father and who used to intimidate his father to murder him have murdered his father with the assistance of others by bombs, bullets and sharp cutting weapons.
On receipt of the said complaint, P.W.31 forwarded it to Gopal Nagar P.S. through constable Biswanath Mukherjee for starting a case. P.W.23 then on the receipt of the said written complaint started Gopal Nagar P.S. Case No. 134 dated June 10, 2007 under Section 302/34 IPC, 25/27 Arms Act and 9(B) of the Indian Explosive Act against the appellant Sanjit Roy, one Jharu Roy, Dilip Roy @ Kalu, Kamal Hossain and unknown others.
P.W.30 held inquest over the dead body of the victim in presence of P.W.5, P.W.6, P.W.9 and one Arijit Kumar Mondal and thereafter dead body was sent to the Bongaon Sub-Divisional Hospital through P.W.25 along with dead body challan for post mortem examination.
Post-mortem examination over the dead body of the victim was conducted by P.W.20, Dr. Dipak Maitra on June 11, 2007 and during post-mortem examination he found two gunshot wounds measuring 1/3'' x 1/3'' each one above the other just above the right ear (over parietal bone being wound of entry and one wound of exit (of two entry) measuring 3/4'' x 3/4'' x 1½'' posterior to it (wound of exit) another gunshot wound over left axilla, wound of entry measuring 1/3'' x 1/3'' and wound of exit over right axilla measuring 3/4'' x ¾',incised wound over right anterior abdominal wall measuring about 4'' x 1½'',three incised wounds over right shoulder back (back of the right shoulder) one above another all measuring 3'' x ½'',both lower lobe of lung pierced by bullet and free blood present in thorax chest cavity of diaphragm and death in the opinion of the doctor was due to cardio respiratory failure which was due to severe haemmorrhage and shock due to above injuries, homicidal and ante mortem in nature. According to the doctor the above injuries were sufficient to cause instantaneous death of a person.
P.W.30 also took up investigation of the case and during investigation seized the motor cycle, some blood smeared brick chips with earth, plain brick chips with earth, a portion of wooden butt of katari, remnants of bomb materials, one blood stained bullet head, three 8 mm empty cartridges from the place of occurrence by a seizure list (Ext. 3) in presence of witnesses and also examined the complainant, (P.W.1) and other witnesses and thereafter made over the case diary to P.W.31 for further investigation. P.W.31 then investigated the case and thereafter on completion of investigation submitted charge sheet bearing No. 146 dated August 31, 2007 under Section 302/379/411/120B/34 IPC against 15 accused persons, namely, appellants of CRA 634/2008, CRA 660/2008, CRA 673/2008 and CRA 732/2008 besides Kalu Roy @ Dilip, Jharu Roy @Prasanta, Kamal Hossain Molla, Billal Mondal, Ruhul Amin Mondal @ Rulu @ Rul Amin, and Provat Biswas showing them absconder. Accordingly, after issuance of warrant, proclamation and attachment case was filed for the present against the accused Kalu Roy @ Dilip, Jharu Roy @Prasanta, Kamal Hossain Molla, Billal Mondal, Ruhul Amin Mondal @ Rulu @ Rul Amin, and Provat Biswas on September 3,2007.
Subsequently a supplementary charge sheet bearing No. 231 dated December 19, 2007 was submitted under Section 25/27/35 Arms Act against Sawkat Ali Mondal, Miaraj Mondal @ Mia and Malek Mondal @ Khalek appellants in CRA 634/2008.
On January 29, 2008 charge was framed under Section 302/34, 379 and 120B IPC against the appellants(appellants in CRA 634/2008, CRA 660/2008, CRA 673/2008 and CRA 732/2008) . On the same date charge under Section 411 IPC was also framed separately against the appellants Pintu Roy, Madhabi Roy and Pralay Roy Chowdhury @ Puchke @ Pintu @ Tinku and in addition to that charges under Section 25/27/35 Arms Act were also framed against the appellants Sawkat Ali Mondal, Miaraj Mondal and Malek Mondal @ Khalek. Thereafter, on being denied by the appellants of their involvement in the crime, trial commenced.
Prosecution examined 31 witnesses and also produced and proved the FIR, seizure lists, rough sketch map, inquest report, PM report, FSL report, statements leading to recoveries, sanction for prosecution under the Arms Act etc. and thereafter on completion of trial and after examination of the appellants under Section 313 Cr.P.C. learned trial Judge passed the impugned judgment.
It is submitted by Mr. Milon Mukherjee, learned senior advocate appearing for the appellants in CRA no. 634/2008 as defence counsel and as amicus Curiae in CRA No. 673 of 2008 and 732 of 2008 that the impugned judgement, order of conviction and sentence cannot be sustained in law as the FIR was anti-dated and the delay of four days in sending the FIR to the court had not been explained. Even the GDE in question which was recorded after getting information of the incident was not produced nor the UD case which was recorded before the lodging of the complaint which casts doubt with regard to the prosecution story.
According to Mr. Mukherjee, there was no allegation in the FIR against any of the appellants of CRA 634 of 2008, CRA No. 673 of 2008 and 732 of 2008 and the inquest report was also silent with regard to the history of the incident and the involvement of the appellants in the commission of the alleged offence. According to him, incident in question took place in the dark night and there was no electricity light at the place of occurrence and the torch lights by which appellants were reportedly identified were not seized which completely demolishes the prosecution case.
According to Mr. Mukherjee, FIR was completely silent with regard to the folio bag and the alleged theft as also with regard to conspiracy and demand of money and so also the inquest report though P.W.1 and P.W.5 had the knowledge of the same but even then they did not say so to the I.O. during investigation which clearly shows that it was an afterthought.
According to Mr. Mukherjee, there was a doubt with regard to the search and seizure as the prosecution has not explained the reason behind the delay in alleged recovery from the date of the reported disclosure made to the I.O. and even the witnesses of the reported seizure have not supported the prosecution story.
According to Mr. Mukherjee, the incident as projected by the prosecution did not occur in the manner, time and place.
Reliance is placed by Mr. Mukherjee on the decisions of Mehraj Singh(L/Nk) Vs. State of U.P. with Kalu Vs. State of U.P. and Others reported in (1994)5 Supreme Court Cases 188, Thanedar Singh Vs. State of M.P. reported in (2002) Supreme Court Cases 487, Mobarak Sk @ Mobarak Hossain and Others Vs. The State of West Bengal reported in (2011)1 C Cr LR(Cal)687 and an unreported judgement in the matter of Asraf Biswas Vs. State of West Bengal (CRA 840 of 2013) with Jaahiruddin Molla and Others Vs. State of West Bengal (CRA 892 of 2013) in support of his submissions.
It is submitted by Mr. Jayanta Narayan Chatterjee, learned advocate appearing for the appellants in CRA 660 of 2008 that there was a doubt with regard to the identification of the appellants in the dark night and the source of light by which appellants were reportedly identified by the witnesses was not seized.
According to Mr. Chatterjee, inquest report did not contain any history nor has disclosed the name of the appellants and the motive behind the murder of the victim, as claimed by the prosecution witnesses, was not proved beyond doubt and there was also doubt with regard to the search and seizure. According to Mr. Chatterjee, involvement of the appellants in the commission of the alleged offence was not proved beyond reasonable doubt.
Reliance is placed by Mr. Chatterjee on the decisions of State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru reported in 2005 SCC (Cri) 1715, State (Government of NCT of Delhi) Vs Nitin Gunwant Shah reported in (2016) 1 SCC (Cri) 361,State of Gujrat Vs. Kishanbhai and Others reported in (2014)5 SCC 108, Baliya Alias Bal Kishan Vs. State of Madhya Pradesh reported in (2013) 1 C.Cr.L.R. (SC) 1 and an unreported judgement in the matter of State of West Bengal Vs. Md. Jamiluddin Nasir and Others passed in CRA 425 of 2005 in support of his submissions.
Mr. Ranabir Roy Chowdhury, learned advocate appearing for the State submitted that FIR was lodged on the same day, seizure and inquest was also held on the same date in connection with the Bongaon P.S. Case and on the very next date FIR was forwarded before the Magistrate but unfortunately same was placed before the Magistrate only on June 14, 2007 but mere delay in placing the FIR before the Magistrate was not fatal for the prosecution case.
According to Mr. Roy Chowdhury though there was darkness at the place of occurrence but the appellants were identified by the witnesses in the torch light but due to fault of the I.O. in not seizing the torch light prosecution case will not suffer.
According to Mr. Roy Chowdhury there was a land dispute between the appellant Madhabi Roy and Pintu Roy with the victim and also on account of removal of Madhabi Roy from school and also between Kalu and his brothers with the victim in the matter of arrest of Kalu for which there was a threat of life of the victim and the appellants Miaraj, Sawkat, Malek, Provat, Moktar, Rejaul, Billal, Pralay @ Puchke used to visit and stayed in Pintu's house and accordingly they in furtherance of their common intention and conspiracy committed the offence of murder. According to Mr. Roy Chowdhury, leading to the statement of the appellant Madhabi Roy driving license of the victim was recovered from her house, voters ID Card and LIC premium receipt was recovered from Pintu Roy leading to his statement and mobile phone of the victim was recovered leading to the statement of Paralay Roy @ Puchke from his house which shows their involvement in the commission of the offence.
According to Mr. Roy Chowdhury, weapon of offence, namely, katari was recovered from a pond, leading to the statement of appellant Sanjit Roy and other weapon of offence namely one pipe gun was recovered leading to the statement of Sawkat Ali, one another pipe gun was recovered leading to the statement of appellant Miaraj Mondal and another pipe gun was recovered leading to the statement of Malek Mondal and as per the FSL report those pipe guns on examination were found in working condition and the bullet head found at the place of occurrence and the empty cartridges on examination by the expert were found fired from those pipe guns.
Mr. Roy Chowdhury, fairly submitted that appellants Moktar, Rejaul and accused Kamal Hossain were not identified by the witnesses during trial and their involvement in the commission of the offence was based on assumption.
Reliance is placed by Mr. Roy Chowdhury on the decisions of Shyamal Ghosh Vs. State of West Bengal reported in 2012 (7) SCC 646, Kulwinder Singh Vs. State of Punjab reported in 2015 (6) SCC 674 and Firozuddin Basheeruddin Vs. State of Kerala reported in 2001(7) SCC 596 in support of his submissions.
We have considered the submissions advanced by learned Counsels for both sides. We have also given our thoughtful consideration to the evidence of the prosecution witnesses and other materials-on- record for examining the propriety of the impugned judgement, order of conviction and sentence passed by the learned court below.
It was not in dispute that the victim, Subhas Chandra Biswas, died on June 10, 2007 and his death was unnatural. It was evident from the evidence of the doctor (P.W.20) and the PM report (Ext.12) that on June 11, 2007 during post mortem examination, doctor found three gunshots injuries two above right ear over parietal bone and one over left axilla and four incised wounds, one over right anterior abdominal wall and three on the back of the right shoulder on the person of the victim and in the opinion of the doctor death was due to cardio respiratory failure which was due to severe haemorrhage and shock due to the above injuries which was homicidal and ante mortem in nature. Interestingly he was not challenged by the defence on this score. Defence did not dispute or deny the injuries found on the person of the victim by the doctor, P.W.20, on June 11, 2007 at the time of conducting post-mortem examination and/or the cause of his death.
The history behind the gruesome murder of the victim, as narrated by P.W.1, was that during tenure of his father, the victim, as secretary of ICDS and Sishu Shiksa Kendra, father of appellant Pintu Roy gifted 5 decimals of land to the government West Bengal on behalf of ICDS Centre but they assumed that he had gifted only 2 decimals of land and as such when the victim and other villagers went to that land for raising construction there was disturbance and a case was filed by Pintu Roy against the victim and thereafter Pintu Roy, Madhabi and others threatened to murder his father if he raised any construction on that land. Appellant Madhabi who used to teach at Sishu Shiksa Kendra was dismissed from the school by the victim when he became secretary and thereafter Madhabi and Pintu started giving out threats that they will murder the victim. Appellants Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and accused Billal and Provat used to stay in Pintu's house and they also threatened his father. Once accused Kalu @ Dilip Roy was arrested in the murder case of Buddo of Nowda and for this victim was held responsible by Kalu who threatened that he would murder his father as he was responsible for his arrest and Kalu's brothers Sanjit and Jharu also used to threaten his father. Accordingly, on the relevant date at about 7.30 p.m. when his father left his STD booth at Akaipur for home by his motor cycle and 5/7 minutes prior thereto he saw Kalu Roy, Dilip Roy, Sanjit Roy, Jharu Roy, Kamal Hossain Molla proceeding towards his house by cycle and at about 7.45/8 p.m. when he heard from the people that his father had been murdered, then it was his firm belief that the appellants along with other accused persons have murdered his father.
Learned court below took into consideration the evidences of mainly P.W.1, P.W.3, P.W.4, P.W.5, P.W.6, P.W.8, P.W.11 besides the evidence of the doctor, the IO and the disclosure statements to arrive at the conclusion that prosecution had been successful in proving beyond doubt that the appellants along with other accused persons in furtherance of their criminal conspiracy caused the death of the victim and thereby committed an offence punishable under Section 302/120B IPC and besides that appellants Pintu, Madhabi and Pralay Roy Chowdhury committed theft of folio bag of the victim containing mobile phone, voter's I/D card, LIC Premium receipt, driving licence and other documents which were recovered leading to their statements from their possession and thereby committed an offence punishable under Section 379/411 IPC and appellants Miaraj Mondal, Malek Mondal @ Khalek and Sawkat Mondal used fire-arms in the commission of the offence which was recovered leading to their statement and thereby committed an offence punishable under Section 25 (1) (a)/27(1) of the Arms Act.
Admittedly, none of the witnesses examined by the prosecution are the witness to the occurrence and the entire case is based on the circumstantial evidence, reported recovery of personal belongings of the deceased and the weapons of offence pursuant to the disclosure statements as also the motive. It is the settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the offence of the accused. The chain of circumstances should be of a conclusive nature and must be completed and most clearly point out to the guilt of the accused. Reference may be made to the decision of Hanumant Gobind Nargundkar and another vs. State of Madhya Pradesh, reported in A.I.R. 1952 Supreme Court 343 and Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Cri) 755. This principle of law has been elaborately discussed by us in the matter of Biswajit @ Buro Roy vs. State of West Bengal reported in (2015)4 Cal LT 120(H.C.) as also in (2016)1 C Cr LR (Cal)396.
So, the circumstances the prosecution has tried to prove against the appellants are that they were seen near the site of murder by P.W.3, P.W.4, P.W.5, P.W.6, P.W.8 and P.W.11, personal belongings of the deceased namely folio bag containing mobile phone, voter's I/D card, LIC Premium receipt, driving licence and other documents recovered from the appellants Pintu Mondal, Madhabi Mondal and Pralay Roy Chowdhury @ Puchke leading to their statements from their house and the weapons of offence namely Katari and firearms recovered pursuant to the disclosure statements of appellants Sanjit Roy, Miaraj Mondal, Malek Mondal @ Khalek and Sawkat Mondal and the motive behind the murder.
So, the first circumstances alleged against the appellants is that they were seen at or near the site of murder by P.W.3, P.W.4, P.W.5, P.W.6, P.W.8 and P.W.11. According to P.W.3, on the relevant date and time on hearing the sound of bomb explosion when he along with P.W.8, P.W.12, P.W.29, Sumanta Roy and others rushed towards that place they saw in the flash of torch light Madhabi, Pintu and Puchke who on seeing them moved away to the side and on proceeding further they saw Jharu, Sanjit, Kamal and others in the flash of torch who threatened to open fire if torch light was flashed again. But neither P.W.12 nor P.W.29 supported his above claim. Interestingly, during investigation he stated to the investigating officer that he saw many people were fleeing away by ail of the field. Admittedly many persons arrived at the place of occurrence prior to their arrival. Victim was his cousin brother and according to his own admission he along with victim and other villagers looted the house of Dulal Biswas of Aitpara. The credibility of this witness appears to be doubtful. According to P.W.4, on hearing the sound of bomb explosion he along P.W.8, Mithu, Nirmal and many others rushed to the place and found Madhabi Roy standing by the side of the bamboo grove near the house of Nikhil Ray and after proceeding further in the flash of torch light they saw Kalu, Jharu, Sanjit, Pintu Roy, Kamal, Billal, Puchke and others. Admittedly, he did not state all these to the investigating officer immediate after the occurrence and narrated only after more than 15 days but did not state before him that Madhabi was standing by the side of the bamboo grove near the house of Nikhil. During cross-examination he stated that P.W.8, Mithu, Nirmal and many others were with him and they found Kalu, Jharu, Sanjit, Pintu, Kamal, Billal and Puchke on the southern side of the road. He admitted that victim belonged to CPM party and he was also supporter of that party. He also admitted that they did not find anyone near the dead body of Subhas Biswas. So, according to him only Madhabi was seen near the house of Nikhil and on proceeding further Kalu, Jharu, Sanjit, Pintu, Kamal, Billal and Puchke were seen at another place on the southern side of the road whereas P.W.3 had claimed that Madhabi, Pintu and Puchke were seen at one place and on proceeding further they saw Jharu, Sanjit, Kamal and others. According to P.W.5, son of the victim,on hearing the sound of bomb explosion and gun shot he along with P.W.3, P.W.4, P.W.9 and many others rushed there and in torch lights they found Pintu's wife standing at the entrance of their village who on seeing the flash of torch lights moved away on the road. They also flashed their torch lights in different directions and saw Malek, Miaraj, Sawkat and Provat, Kalu, Sanjit, Jharu and Pintu Roy, Kamal Hossain, Billal, Muktar, Puchke, Reja Bukra and Rulamin. They then tried to chase them but they threatened them to fire and proceeded towards the jute field. Interestingly, at nowhere P.W.3 or P.W.4 had stated that P.W.5 was with them and/or that they tried to chase the miscreants. According to P.W.6, on hearing the sound of bomb and gunshot he rushed to the place and while rushing to the place of occurrence he saw Madhabi Roy and Pintu Roy standing by the side of the road and when he flashed the torch light they moved away. He also saw Jharu, Kalu, Sanjit, Billal, Kamal, Puchke and many others and when they flashed their torch lights they chased them and shouted to fire at them. But he did not state to I.O., P.W.31, that when he flashed the torch they moved away here and there and/or that when they flashed the torch light they chased them and threatened to fire. According to P.W.8, on hearing the sound of bomb he rushed there and found Madhabi Roy near the house of Nikhil Roy near bamboo groves who seeing them stepped down and stood aside. They proceeded further and flashing the torch light on the left they found Pintu Roy, Kalu, Sanjit, Jharu, Kamal, Billal, Puchke, Malek, Muktar Reja Bokra, Sawkat, Provat and others and on seeing them they stepped to the pit and left when they shouted "dhor dhor". Admittedly, he did not state to the police officer when police came there though he was present nor he produced his torch light. According to P.W.11, on hearing the sound of bomb and gunshot he rushed there along with others and saw some people were fleeing away and saw in the torch Jharu, Kalu, Pintu and many others who entered the jute field. According to him when torch light was flashed on them they threatened to kill them if they proceed towards them. According to his own admission he did not make any statement to the investigating officer. Interestingly, none of the above witnesses had not spelt out the role played in the crime by any of the appellants and/or their presence at the scene of the crime nor stated all these to the investigating officer during investigation. On scrutiny of the evidences of the above witnesses, we find several contradictions in their statements with regard to the exact location where the appellants were reportedly seen and the distance from the place where dead body was found. Be that as it may, it was a dark night and there was no electricity light at the place of occurrence and the villagers rushed there from all side on hearing the sound of firing and bomb explosion. Appellants were reportedly seen in the torch light near the site of murder on the relevant night by the above witnesses but not a single torch light was seized and produced in support of their above claim. The observation of the learned court below that it is but natural for the villagers having no electricity to carry torch at night while setting out from the house does not appear to be based on sound footing as presumption can not take the place of proof. Moreover, there was no evidence on record that there was no electricity in the Aitpara village. In view of the above and in the light of the evidence, their claim that the appellants were seen near the site of murder while fleeing away did not appear to be believable. In such circumstances no presumption could be drawn on the issue. That being the position, we are of the view that prosecution has failed to prove the last seen theory against the appellants.
Another circumstances which the prosecution has tried to prove against the appellants is the reported recovery of personal belongings of the deceased from the house of appellants Pintu Mondal, Madhabi Mondal and Pralay Roy Chowdhury @ Puchke pursuant to their disclosure statements and the weapons of offence namely Katari and firearms recovered pursuant to the disclosure statements of appellants Sanjit Roy, Miaraj Mondal, Malek Mondal @ Khalek and Sawkat Mondal. In this regard prosecution has relied on the evidences of P.W.6 and P.W.12 reported to be the witnesses to the seizure of driving licence of the victim and one deed (Mat.Exts. XIII & XIV) from the house of the Madhabi Roy, P.W.4 and P.W.8 to be the witnesses to the seizure of one folio bag , Voter Identity Card and LIC premium receipt(Mat. Exts. II, XI & XII) from the house of the appellant Pintu Roy, P.W.15 and P.W.16 to be the witnesses to the seizure of the nokia mobile phone (Mat. Ext.V) from the possession of Puchke @ Paralay Roy Chowdhury, P.W.11 and P.W.13 to be the witnesses to the recovery of one katari/dao (Mat. Ext.XV) from the pit by the side of the road pursuant to the disclosure statements by appellant Sanjit Roy, P.W.14 and one Samar Ghosh reported to be the witnesses to the recovery of one country made improvised pipe-gun (Mat. Ext.XVI) pursuant to the disclosure statements of appellant Sawkat Mondal, P.W.17 and P.W.18 to be the witnesses to the recovery of one country made improvised pipe-gun (Mat. Ext.XVII) pursuant to the disclosure statements of appellant Miraj Mondal and P.W.19 and P.W.21 to be the witnesses to the recovery of one country made improvised pipe-gun (Mat. Ext.XVIII) pursuant to the disclosure statements of appellant Malek Mondal though the appellants have denied the same during their examination under section 313 Cr.P.C.
P.W.6 who claimed to be the witness to the seizure of deed and driving licence of the victim from the house of appellant Madhabi Roy and had identified his signatures on the seizure list and the label as also the documents in question but during cross-examination by the defence he admitted that nothing was written on the paper (seizure list) when he was asked to sign by the police and he also could not say when and where his signature was taken by the police and what was written in the seizure list. P.W.12 though claimed that police took them to the house of Madhabi and she brought out one driving licence and a deed from her room and handed over the police and he signed on the seizure list and the label but during cross-examination he pleaded his ignorance about the contents of the documents on which he had singed. According to him many people assembled when police came to the house of Pintu and Madhabi. So, from the evidence of above witnesses it was evident that they are merely signatories to the seizure list in question and that too without knowing the contents of the same. There is nothing in their evidence to suggest that they even entered into the room in question where the reported documents were concealed and/or the exact place where from those were reportedly brought out and handed over to the police. There was no explanation why nearby local people were not called to become witness to the seizure in question though available. To add further reported seizure (Ext.6) was made only on July 3,2007 on the basis of disclosure statements made on June 29,2007 but there was no explanation for the delay in the alleged recovery from the date of reported disclosure to the I.O.
According to P.W.4 on June 27, 2007 in between 12/12-15 p.m. while he was at his house a police vehicle came there and he was called near that vehicle where he saw Pintu Roy and as per instruction of police he along with one Ananda Biswas (P.W.8) went to the house of Pintu Roy and they stood in the varanda of his house and thereafter on being shown and pointed out by Pintu Roy police recovered a bag from beneath the cot of his room and after opening that bag, ID card and LIC documents were recovered and thereafter police prepared the seizure list on which they signed. During cross-examination he admitted that victim was his cousin brother and that surrounding house owners of Pintu Roy assembled there. He also admitted that he couldn't read and write and can only sign his name. He pleaded his ignorance as to what was written on the document in question. On the other hand P.W.8 claimed that both he and P.W.4 entered into Pintu's room and that 30/40 people had assembled in the house of Pintu. He also claimed that Pintu Roy produced the bag. This shows contradictions in between the statements of P.W.4 and P.W.8 with regard to the recovery and seizure in question from the house of the appellant Pintu Roy. Admittedly, P.W.4 and P.W.8 are not the adjoining house owners. There was no explanation why independent persons of the locality or the adjoining house owners though available were not called at the time of reported search and seizure. The reported seizure (Ext.4) was made only on June 27, 2007 on the basis of disclosure statements made on June 21, 2007 but there was no satisfactory explanation for such long delay in the alleged recovery from the date of reported disclosure to the I.O. Taking into account the evidence of P.W.4 and P.W.8 a doubt has been casts as to the reported search and seizure from the house of the appellant Pintu Roy. Moreover, appellants Pintu Roy and Madhabi Roy are the husband and wife residing in the same house. The folio bag reportedly contained the documents of the victim such as driving licence, deed, voters ID card, LIC premium etc. So, it was not expected that the documents contained in the bag and of no use for the others could be divided between husband and wife and part recovered from husband and part recovered from wife from the same house on two different dates inspite of conducting raid at their house on five days i.e. on June 21, 2007, June 22, 2007, June 26, 2007, June 27, 2007 and July 3, 2007. All these create doubt with regard to the alleged recovery from the possession of the appellants Pintu Roy and Madhabi Roy.
P.W.15 and P.W.16 were reported to be the witnesses to the seizure (Ext.9) of the nokia mobile phone from the possession of Puchke @ Paralay Roy Chowdhury on the basis of disclosure statements but in course of examination before court P.W.15 failed to identify Puchke who reportedly produced the mobile phone clearly stating that he does not know any Puchke and even went on to say that he did not mention the name of Puchke to the police officer. Interestingly he was not declared hostile by the prosecution. P.W.16 even failed to identify the mobile phone in question and even went on to say that he did not know why police asked him to sign on the paper and that he singed on a blank paper. He even did not whisper the name of appellant Puchke nor could be able to identify him before court. The reported seizure (Ext.9) was made on June 28, 2007 on the basis of disclosure statements made on June 20, 2007 but there was no explanation for such long delay in the alleged recovery from the date of reported disclosure to the I.O. These also create doubt with regard to the reported recovery from the possession of appellant Puchke @ Paralay Roy Chowdhury.
P.W.11 and P.W.13 reported to be the witnesses to the recovery of one katari/dao (Mat. Ext. XV) from the water in a pit by the side of the road reportedly on the basis of the reported disclosure and being led by appellant Sanjit Roy but P.W.13 failed to say where from the said Katari/dao was recovered though claimed that the same was produced by Sanjit. So the claim of P.W.11 that katari was recovered from inside water of a pit by the accused Sanjit did not found corroboration from P.W.13. Admittedly, P.W.11 did not make any statements to the I.O. To add further, the Katari in question had the wooden butt whereas according to the P.W.30, portion of a butt of a Katari besides other articles were seized by him from the P.O. There was no evidence on record that portion of the butt seized from the P.O. had any connection with the katari seized on the basis of the reported disclosure statements of appellant Sanjit Roy. To add further according to I.O. katari in question was seized from a pond whereas P.W.11 claimed that it was recovered from a pit. Furthermore, the reported seizure (Ext.9) was made only on July 14, 2007 though the reported disclosure statements was made on July 9, 2007 and no explanation was given for such long delay in the alleged recovery from the date of reported disclosure to the I.O. These also create doubt with regard to the alleged recovery.
P.W.14 and one Samar Ghosh were reported to be the witnesses to the seizure (Ext.8) of one country made improvised pipe-gun (Mat. Ext. XVI) on the the basis of the reported disclosure statements made by appellant Sawkat Mondal. But from the evidence of P.W.14 it was evident that he did not support the prosecution case with regard to the alleged recovery of the pipe-gun in question on being led by appellant Sawkat Mondal. Though he admitted his signature on the seizure list and label but pleaded his ignorance as why he signed therein and went on to say that he is seeing that pipe-gun in court for the first time. He was declared hostile by the prosecution and was cross-examined but nothing came out contrary to his statements-in- chief. Even if the P.W.31 is believed with regard to statements made by P.W.14 then also there was nothing to show that this witness implicated this appellant. He was even not asked by the prosecution to identify the appellant on dock to be the person who lead the I.O. to recover the pipe-gun in question. The other witness Samar Ghosh was not examined at all by the prosecution. Furthermore, the reported seizure(Ext.8) was made only on June 28, 2007 though the reported disclosure statements was made on June 22, 2007 and no explanation was given for such long delay in the alleged recovery from the date of reported disclosure to the I.O.
P.W.17 and P.W.18 were reported to be the witnesses to the recovery and seizure (Ext.10) of one country made improvised pipe-gun (Mat. Ext.XVII) on the the basis of the reported disclosure statements made by appellant Miraj Mondal. But from the evidence of P.W.17 and P.W.18 we find that though they have identified their respective signature of the seizure list but pleaded their ignorance as why they signed therein and went on to say that they are seeing that pipe-gun in court for the first time. They were also declared hostile by the prosecution and were cross-examined but nothing came out contrary to their statements-in- chief. Even if the P.W.31 is believed with regard to their statements made during investigation then also there was nothing to show that they at all implicated this appellant. They were even not asked by the prosecution to identify the appellant on dock to be the person who lead the I.O. to recover the pipe-gun in question. Furthermore, the reported seizure (Ext.10) was made only on July 10,2007 though the reported disclosure statements was made on July 6,2007 and no explanation was given for such long delay in the alleged recovery from the date of reported disclosure to the I.O.
P.W.19 and P.W.21 were reported to be the witnesses to the recovery and seizure (Ext.11) of one country made improvised pipe-gun (Mat. Ext.XVIII) on being led by appellant Malek Mondal. But from their evidence we find that though they have identified their respective signature of the seizure list but they too pleaded their ignorance as why they signed therein and went on to say that they are seeing that pipe-gun in court for the first time. They were also declared hostile by the prosecution and were cross-examined but nothing came out contrary to their statements-in- chief. They even did not identify the appellant on dock. Even if the P.W.31 is believed with regard to their statements made during investigation then also there was nothing to show that they at all implicated this appellant. In view of the above the claim of recovery of weapon of offence from the possession of the above appellants appears to be doubtful. Therefore, this link in the chain of circumstances is also not established by the prosecution.
The learned court below did not take into consideration the above fact of this case to apply the settled principles of law.
With regard to the motive behind the murder, we find that the learned court below took into consideration the evidence of P.W.1, P.W.3, P.W.5, P.W.6 and P.W.8 to arrive at the conclusion that appellants Madhabi Roy and Pintu Roy harboured ill feeling towards the deceased as he after becoming Secretary of Sishu Shiksha Kendra and ICDS got the service of Madhabi terminated from the Sishu Shiksha Kendra where she was teaching and over the dispute as to the quantum of land gifted by the father of Pintu and the appellants Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and others who used to stay in Pintu's house had also threatened the victim for dire consequences while Kalu and his brothers Sanjit and Jharu harboured ill feeling towards the deceased for the arrest of Kalu in connection with murder case of Buddo of Nowda as his role was suspected for his arrest.
It was evident from the evidence of P.W.1, that he was not the witness to the occurrence and his claim of involvement of the appellants in the murder of his father was based on assumption allegedly on account of previous threat to life of his father. But while lodging the complaint he made allegations only against Dilip Roy @ Kalu, Sanjit Roy, Jharu Roy and Kamal Hossain alleging that they used to intimidate his father to murder him and that on the relevant date 05 minutes prior to departure of his father they set out towards the village by cycle and incident took place, so it was his belief that they have murdered his father with the assistance of others. With regard to the alleged bone of contention in between the Pintu and Madhabi with the victim surrounding the alleged gift, P.W.1 on being challenged during cross- examination could not say when the reported gift deed was executed by the Pintu's father nor any documents was produced to show that Pintu had filed any case against his father over the same. With regard to the reported termination of service of Madhabi from the school no document was produced to show that Madhabi was at all a teacher at Shisu Shiksa Kendra nor he could say where that Shisu Shiksa Kendra was situated. He also could not say the date, month or year when Pintu, Madhabi and others threatened to murder his father. He even admitted that during investigation he did not state to the IO nor he mentioned in the FIR that Madhabi and Pintu started giving out threats that they would murder his father nor he made any complaint to the P.S. or to the SDPO or SP concerned. According to his own admission he had prior acquaintance with appellants Malek, Moktar, Sawkat and Miaraj as they used to visit Pintu's house for which he had some suspicion against them. He admitted that his father was a political person and he had both enemies and friends and that his father was an accused in the Raghu's murder case and was convicted. Interestingly, during investigation he did not state to the I.O. that his father was a Secretary of Shisu Shiksa Kendra and Madhabi used to teach children at Shisu Shiksa Kendra and when his father became Secretary at Shisu Shiksa Kendra he dismissed Madhabi from that school. He also did not state to the I.O. that Pintu, Madhabi and others threatened to murder his father if he raised construction over 5 decimals of land. He also did not state to the I.O. that Malek, Miraj, Provat, Mukhtar, Rejaul and others used to stay in Pintu's house and threatened his father. P.W.3 though stated about termination of Madhabi from Shisu Shiksa Kendra by the deceased and her threat for the same but during cross-examination he went on to say that Government dismissed Madhabi as she was not of required age. On being challenged he could not say the year Madhabi was dismissed and/or the date, month or the year when she started threatening the victim. Interestingly, he went one step further and claimed that once police apprehended Pintu in connection with a kidnapping case for which he started giving out threat to the victim to murder him, though not claimed by the complainant, but on being challenged he could not say the date, month or year of such arrest of Pintu and/or the alleged threat. He even did not say all these to the I.O. during investigation. He also did not whisper anything with regard to any such dispute and/or litigation between the victim and Pintu over any gift of land by the father of Pintu for which victim was threatened for his life nor about any such threat by Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and others nor about any ill feeling and threat by Kalu and his brothers Sanjit and Jharu over reported arrest of Kalu in connection with murder case of Buddo of Nowda as claimed by P.W1. According to his own admission he is the cousin brother of the victim by distant relation and once he along with the victim and other villagers looted the house of Dulal Mondal. P.W.5,son of the victim, while supporting the claim of his brother, P.W.1, with regard to the grudge of Pintu and Madhabi against their father over gift of land and for dismissal of Madhabi from the school by his father and that of Kalu and his brothers over arrest of Kalu in the murder case of one Budo went one step farther and claimed that one/two days prior to the incident there was whispering that Pintu and Madhabi gave R. 50,000/- to Malek, Miaraj, Sawkat, Muktar, Kamal, Billal, Rulamin, Reja Bokra and Puchke to murder his father but surprisingly he did not state this to the I.O. during investigation or to the police officer during the inquest held in his presence nor stated from whom he heard this. According to P.W.6, Madhabi Roy used to give out threats that they would murder Subhas Biswas as there was some dispute between them over ICDS school but did not whisper regarding any gift or dismissal of Madhabi from school service. He even claimed that he stated to the I.O. that two days prior to the incident there was a meeting in the house of Pintu where a monetary transaction of Rs. 50,000/- took place for murdering Subhas but admitted that he was not present in that meeting nor could say how he came to known that there was a meeting in the house of Pintu Roy where a monetary transaction of Rs. 50,000/- took place for murdering Subhas Biswas. He even did not state all these to the I.O. during investigation. Furthermore, he did not support the allegation of the complainant and his brother with regard to the reported threat by Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and others nor about any ill feeling and threat by Kalu and his brothers Sanjit and Jharu over reported arrest of Kalu in connection with murder case of Buddo of Nowda as claimed by P.W1. P.W.8 though stated about the dispute between the Pintu and Madhabi with victim over gift of land and reported termination of service of Madhabi but did not support the claim of the complainant with regard to the reported threat by other appellants. He also could not say the name of the school in question. Admittedly no such paper in connection with service and/or termination from service of Madhabi from school was seized and produced by the I.O. nor any document with regard to any litigation between victim and Pintu over the gift in question. Even the date,month or year with regard to the reported termination of service of Madhabi from school and/or the reported threat of life of the victim was brought on record to show the proximity with the murder. The allegation of the prosecution with regard to the threat of life of the victim by Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and others and/or harbouring of ill feeling towards the victim and threat to his life by Kalu and his brothers Sanjit and Jharu for the reported role of the victim towards arrest of Kalu also fell flat in view of the evidences discussed herein above. In the instant case thus, we find that the circumstances from which the conclusion of guilt is to be drawn have not been fully established. This being the position, we have no option but to hold that the impugned judgement cannot be sustained in law because prosecution had failed to prove this circumstances also.
Regarding FIR being ante dated, it is the settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstance of delay may lead to serious consequences. In the instant case, the incident in question took place in the night of June 10, 2007, and the FIR was reportedly lodged on the same night, though the same was placed before the Magistrate for obtaining his signature only on June 14, 2007. From the evidence of P.W.23, it appears that prior to his receipt of the complaint at the P.S. he received one information with regard to hurling of bombs and firing at Aitpara and accordingly he made GDE no.429 and informed to the officer-in-charge. He admitted that formal FIR does not mention the time of its despatch to court along with the complaint. From the evidence of P.W.30 and P.W.31, it reveals that on the basis of the information of the incident they proceeded to the place of occurrence. FIR (Ext.13) discloses start of one UD Case being no.11/2007 dated June 10, 2007 at the Gopal Nagar P.S. and even the inquest was held by P.W.30 in connection with that UD Case. Admittedly, time of holding inquest was not mentioned in the inquest report. P.W.31 claimed to had received the complaint on that night at the spot. P.W.2 also deposed that he scribed the complaint where the dead body was lying. But according to P.W.1, FIR was written in his house and he handed over the same to the police in his house. GDE in question was not produced during trial nor the UD case which was recorded before lodging of the complaint. Inquest report though held in presence of son of the victim (P.W.5) and others was completely silent with regard to the history behind the incident and the persons responsible for the same. There has been no explanation for the delay in sending the FIR to Court from the side of the prosecution. Therefore, taking into consideration of the entire facts and circumstances of the case, such delay according to us is the another circumstances which touches the credibility of the prosecution case.
The learned Trial Court did not take into consideration the above aspect of the matter also.
Regarding non-mentioning of the name of any accused/appellant in the inquest report, we find from the record that P.W.30 made inquest over the dead body of the victim in presence of witnesses. It appears from Ext. 5, inquest report, that neither the history nor the name of the assailant was given therein. Be that as it may, the main purpose of holding inquest is to ascertain whether a person has died under the circumstances which were doubtful or an unnatural death and if so what is the cause of death. An inquest report is not a substantive piece of evidence. The non-mentioning of the names in the inquest report can at the most be said to be a lapse or incompetence on the part of the investigating officer. Mere absence of the name of the assailant in the inquest report is not fatal and no inference adverse to the prosecution could be drawn for the same.
Therefore, our interference with the impugned judgment is not required on the above ground.
Regarding omission in the FIR as to the theft of bag of the victim containing his mobile phone, voter's I/D card, LIC Premium receipt, driving licence and other documents, conspiracy and threat to the life of the victim and the name of the appellants of CRA 634 of 2008, CRA No. 673 of 2008 and 732 of 2008, it is the settled proposition of law that the main purpose of FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law and the same itself is not the proof of a crime but is a piece of evidence which can be used for corroborating prosecution case. FIR need not be an encyclopaedia of all facts and circumstances on which the prosecution relies. But at the same time vital omissions in the FIR can make the prosecution case doubtful. According to both P.W.1 and P.W.5 Madhabi Roy and Pintu Roy harboured ill feeling towards their deceased father for terminating the service of Madhabi from the Sishu Shiksha Kendra and over the quantum of land gifted by the father of Pintu and they used to threaten the vicim to murder him and Mairaj, Swakat, Malek, Moktar, Rejaul, Pralay @ Puchke and others who used to stay in Pintu's house had also threatened the victim for dire consequences. Admittedly, P.W.1 did not see to murder his father nor saw the miscreants at or near the place of occurrence. But P.W.5 had claimed that on the relevant night while rushing to the P.O. along with others he saw in torch lights Pintu's wife standing at the entrance of their village who moved away on the road on seeing the flash of torch lights and also saw Malek, Miaraj, Sawkat and Provat, Kalu, Sanjit, Jharu and Pintu Roy, Kamal Hossain, Billal, Muktar, Puchke, Reja Bukra and Rulamin and when they tried to chase them they threatened them to fire and proceeded towards the jute field. P.W.5 came to the P.O. prior to P.W.1 and according to him he had talk with P.W.1 on that night about the incident. P.W.1 also admitted that on that night he spoke with his brother over the incident. But inspite of that name of the accused persons/appellants whom P.W.5 saw on that night and who used to threaten their father to murder him did not figure in the FIR. The reported missing/theft of the bag of the victim containing his mobile phone, voter's I/D card, LIC Premium receipt, driving licence and other documents also did not figure in the FIR though since beginning P.W.1and P.W.5 had the knowledge of the same and it surfaced only during trial. P.W.31 also admitted that prior to the lodging of the complaint name of the assailants were not disclosed to him. Furthermore, both P.W.1 and P.W.3 admitted during trial that Pintu attended the cremation and was invited for Sradh ceremony of the victim and he attended. If the role of Pintu in the death of the victim was doubted since the very night of the incident and he and his wife were reportedly seen on that night in suspicious condition then there was no explanation as to why he was allowed to participate in those ceremonies and why his and his wife's name and names of others who were seen on that night did not figure in the FIR. In view of the above, such omissions were of material dimension going to the root of the case and casts doubt with regard to the credibility of prosecution witnesses and the prosecution story. All these escaped the attention of the learned court below. As such the decision of the learned court below on this score is not sustainable in law.
In view of the discussions and observations made hereinabove, we hold that the prosecution has failed to establish the chain of circumstances which could link the appellants with the crime and as such the conviction of the appellants cannot be sustained.
In view of the distinguishable facts and circumstances involved in this case, as discussed hereinabove, the decision of Shyamal Ghosh (supra), Kulwinder Singh (supra) and Firozuddin Basheeruddin (supra) do not help the prosecution case.
We, accordingly set aside the conviction and sentence of the appellants and acquit them of the charges levelled against them.
All the appeals are, therefore, allowed and the appellants are set at liberty from this case.
Appellants are directed to be released from custody forthwith, if not required to be detained in any other case.
Copy of this judgement along with the lower court records be sent down to the trial court expeditiously.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)