Calcutta High Court (Appellete Side)
Santanu Das And Ors vs The State Of West Bengal on 16 May, 2017
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
Form No. J. (1)
(kc)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice:- Rakesh Tiwari
And
The Hon'ble Justice:- Shivakant Prasad.
C.R.A. 803 of 2005
Santanu Das and Ors.
-Versus-
The State of West Bengal
For Appellants: Mr. Tapan Deb Nandi,
Mr. Saryati Datta.
For State: Mr. Saibal Bapuli,
Mr. Arijit Ganguly.
Heard on:- 16th May, 2017
Judgment on: 16th May, 2017.
Justice Shivakant Prasad:
The instant appeal is directed against the judgment and order of conviction
and sentence dated 5th October, 2005 and 6th October, 2005, passed by learned
Additional Sessions Judge, 11th Court, Alipore, South 24-Parganas in S.T. Case
No. 1(7) of 02, convicting the appellants for the charges under section 302/34 of
the Indian Penal Code.
Factual matrix of the prosecution case is that the defacto complainant,
Subarna Mandal lodged a complaint on 30th November, 2000 with the Officer-in-
charge, Canning Police Station, alleging that on 30th November, 2000, at about
11 a.m. when he was carrying paddy from the field, he saw near Bersagachi more
that Bhutto, Shantanu, Mannan, Noche and Mahindra etc. being armed, were
proceeding along the street. He also saw blood stained dao in the hand of
Bhutto, a pistol in the hand of Santanu and guns in the hands of others. Bhutto
pushed him and said "Could you save Jatin?" and Santanu asked Bhutto to kill
him. At that time, Ganesh, the elder brother of Bhutto rushed there and rescued
the complainant. Thereafter, the complainant proceeded towards the shop of
Joga and saw a large number of people assembled in the potato field of Jhoro
Mondal. He proceeded there and found that his cousin brother Jatin Mondal was
lying with neck cut and gun shot injuries on his person. He could understood
that Jatin was dead. From the persons present there, he came to know that
Bhutto, Santanu, Mannan, Mahindra and Nache had murdered Jatin. It is
alleged that prior to the date of incident there was a hot altercation and Jatin
Mondal was threatened to be murdered.
A written complaint was scribed by Rezaul Khan, P.W. 10, as per
instruction of the defacto complainant and on that basis, specific police case,
being Canning Police Station case no. 147/2000 dated 30th November, 2000
under section 302/34 and 120B of Indian Penal Code read with Sections 25/27
of the Arms Act was started against the accused persons.
The investigation was endorsed to S.I. Jahar Lal Roy Chowdhury by the
Officer-in-charge on 30th November, 2000. According to the Investigating Officer,
P.W. 8, he visited the place of occurrence and on the basis of the written
complaint, formal FIR was drawn. He prepared a sketch map with explanatory
index, examined ocular witnesses and arrested the accused persons and
forwarded them to the Court of learned S.D.J.M., Alipore. During the course of
investigation, he held inquest over the dead body of Jatin Mondal in presence of
the witnesses which report has been proved as Exbt. 2/1. The dead body was
sent to autopsy surgeon for post-mortem and the post-mortem examination
report was collected by him. The Investigating Officer seized some blood stained
earth and controlled earth under a seizure list dated 30th November, 2000, which
is proved as Exbt. 3/1. He has also seized the wearing apparels of the deceased
and other articles on 2nd December, 2000 under seizure list (Exbt. 5). After
completion of investigation, he submitted charge-sheet under section
302/34/120B of the Indian Penal Code against the accused persons on 26th April, 2001 showing two accused persons as absconder.
After the charge-sheet was submitted, taking cognizance of that, learned S.D.J.M., Alipore committed the case to the Court of Sessions at Alipore and in turn, the case was transferred to the Court of learned Additional District and Sessions Judge, 11th Court, Alipore for trial and disposed.
Trial commenced with the framing of charge against the accused persons, appellants herein, which was registered as S.T. case no. 1(7)02. Prosecution examined as many as 10 witnesses in order to bring home the charges levelled against the accused persons. After closure of evidence, learned Additional Sessions Judge examined the accused persons under section 313 Cr.P.C. to which each of them declined to adduce any evidence in their defence.
After hearing the parties to the case, being the prosecution and the defence, the learned Sessions Judge recorded his finding by the impugned judgment holding the accused persons, namely Santanu Das, Mahinder Halder, Bhusan Halder, Nasim Ali Gazi, Nachey and Manan Ali Gazi guilty of the charged offence punishable under section 302/34 of the Indian Penal Code and thereby convicted them under the provision of section 235(2) of Cr.P.C. However, the accused Amulya Sardar was found not guilty of the offence of the charge under section 302/34 of the Indian Penal Code and thereby he was acquitted under section 235(1) Cr.P.C.
The convicted persons were sent to jail for reflection and segregation on the question of sentence and produced on 6th October, 2005 for hearing them on the point of sentence. After hearing the convicted persons they were sentenced to suffer rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each, in default, to suffer rigorous imprisonment for another one year.
The judgment and order of conviction and sentence has been assailed by the appellants, inter alia, on the first ground that the eye witnesses as per prosecution case, viz. P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 7 being witnesses closely related to the deceased are largely interested witnesses and conviction cannot be recorded based on their version. The defacto complainant, P.W. 1, is a post-occurrence witness and P.W. 6 is though no doubt a villager and an independent witness but he cannot be said to be an eye witnesses.
In the second fold argument, learned counsel for the appellants submits that the post-mortem doctor was not examined before the trial Court and the post-mortem report (Exbt. 6) is a photostat copy of the original and is not admissible in evidence and accordingly it should not be used in corroboration of the prosecution case.
It is submitted by learned counsel for the appellants that the alleged incident took place on the potato field of Jhoro Mondal at about 11/11.30 a.m. It is in evidence of P.W. 1, Subarna Mondal, P.W. 3, Amal Mondal and P.W. 4, Soumen Mondal that there are about 9 houses in between Besagachir more and the potato land of Jhoro Mondal. According to P.W. 1 and P.W. 3, there are about 18/20 houses but according to the P.W. 4 there are 5/6 houses between Besaghachir More and potato field of Jhoro Mondal and that though the place of occurrence is surrounded by many houses but the inmates of those houses have not been examined, save and except the closed relatives of the deceased, who cannot be said to be independent witnesses and it would not be safe to record the order of conviction on the basis of evidence of such witnesses.
In third fold of argument, it is pointed out inviting our attention to the inquest report that there are as many as 4 witnesses who have put their signatures on the inquest report, so to say, that they were present at the time when inquest was held by the investigating officer over the dead body of the deceased but save and except Amal Mondal, P.W. 3, other 3 witnesses to the inquest report, namely, Sheikh Mosarrof Hossain, Phalguni Halder and Sannyasi Kayal, were not examined by the investigating officer.
It is true that the aforesaid three witnesses to the inquest report were not examined by the investigating officer but that does not take away the prosecution case. The object of inquest is of seeing to it the situation in which the deceased's body was found at the spot and the time. It is not the requirement of law under section 174 of Cr.P.C. to mention the name of accused persons and the weapons carried by them in the Inquest report. It is confined to the ascertainment the apparent cause of death. The details of the overt acts are not necessary to be recorded in the Inquest report.
With regard to interestedness of witnesses, it has been pointed out that P.W. 2, Ashima Mondal, the eye witness is the wife of the deceased.
The said P.W. 2 has categorically stated on oath that her house is about 50/60 yards off from the potato field of Jhro Mondal and she saw the incident coming out from her house. After seeing the incident she visited the spot and found accused Bhutto armed with 'Da', accused Santanu armed with 'Pistal', accused Mannan armed with 'Pistal. Accused Mahinder and Nachin were also present at the spot. She further stated in clear and crystal term that accused Bhutto cut the neck of her husband with the 'Da' in her presence. Accused persons, namely, Bhusan Halder @ Bhutto, Santanu Das, Nachin, Mahinder, Amulya Sardar and Mannan were present during the trial and were identified by this witness. During cross examination, we do not find the defence having put any such question impeaching the oral testimony of P.W. 2.
P.W. 3, Amal Mondal is the full blood brother of the deceased Jatin Mondal. According to him, his brother Jatin was murdered on 30th November, 2000 and while he was returning home from the field carrying bundle of paddy, he heard sound of firing and found that the accused persons, namely, Santanu, Bhutta, Mannan, Nochey, Mahindra and Bishnu were chasing his brother Jatin and due to such chasing, Jatin fell on the potato land of Jhoro Mondal. Then Ashima Mondal, wife of Jatin came to the spot and she embraced her husband to rescue him and accused Bhutto cut neck/throat of Jatin with 'Ramda'. The other accused persons were armed with gun, pistal, sharp cutting weapons. Then she began to shout and on hearing the shouting, neighbours came to the spot. This witness had also identified the accused persons during the trial.
He is a witness to the inquest report. Obviously prima facie opinion reflected in the inquest report is the knowledge gained from the version of the said witness during Inquest held by the I.O. which finds corroboration by the testimony of P.W. 3. Therefore, the inquest report cannot be said to have been impeached and not hit under section 162 Cr.P.C.
P.W. 4, Soumen Mondal, is the son of deceased Jatin Mondal. According to him, he was returning home from field carrying a bundle of paddy and when he reached at Jagor More at about 11/11.30 a.m., he heard sound of firing and noticed accused Santanu along with pistal, Bhutta being armed with Da, Nache, Mannan and Mahendra being armed with gun to be present there. He saw accused Bhutta @ Bhusan to cut neck/throat of his father Jatin with 'Da' and that accused Bhutta kicked his mother when she came to rescue his father. He put his signature on the recorded statement and has also put his signature as witness to the seizure list dated 30th November, 2000 in respect of the blood stained soil and controlled soil which were seized by the investigating officer. This witness had also identified the accused persons during trial.
The evidence put forward by the defence during cross examination of this witness does not impeach the credence of the oral testimony of the said prosecution witness.
P.W. 5, Mandakini Mondal, is also an eye witness to the occurrence. According to her, the deceased was her brother-in-law and on the date of occurrence, after hearing the sound of firing, she came out and noticed Jatin being surrounded by the accused Santanu, Bhutta, Nache, Mahindra and Mannan. Her 'Ja', Asima Mondal came to rescue Jatin when the accused Bhutto kicked her and cut neck/throat of Jatin with 'Ramda'. During cross examination, she has stated that she had noticed the accused persons on the potato field of Jhoro Mondal and also had noticed Jatin lying on the potato field. She denied all the defensive suggestions put to her by the defence. However, there appears some exaggeration with regard to explosion of bomb but such minor exaggeration by the prosecution witness was not sufficient to shake her oral testimony.
P.W. 6, Phatik Mondal is a post-occurrence witness. According to him when he was returning home from the paddy field, he saw accused Bhutta with blood stained 'Ramda', accused Santanu armed with gun and accused Mannan with a bag of bomb and they were fleeing away. He also noticed that Jatin was lying on the potato field of Jhoro Mondal with throat cut injury.
So, obviously he may not have seen the accused persons inflicting injuries on the deceased but the accused persons were seen by him with blood stained weapon. This witness also identified the accused persons during trial. A suggestion was put to him that he has been tutored by the police and was instructed to give false evidence to which he has vehemently denied.
P.W. 7, Putul Mondal, is also an eye witness, who happens to be also related to the deceased, as the deceased was her uncle-in-law (Kaka Sashur), who was murdered on 30th November, 2000. She had deposed that on that date after hearing the hue and cry when she came out from her house, she noticed that the accused Santanu, Bhutta, Nache, Mannan and Mahindra, being armed with weapons were chasing Jatin and accused Santanu shot fire to Jatin by a gun from the back side when Jatin fell on the potato field of Jhoro Mondal and then accused Bhutta cut throat/neck of Jatin by 'Ramda'. She also saw that her Sasuri Asima Mondal embraced her husband Jatin Mondal when accused Bhutta gave a kick to her. The accused Bhutta cut throat/neck of Jatin after arrival of Asima Mondal at the spot.
The written complaint (Exbt. 1/2), was scribed by P.W. 10, as per instruction of P.W. 1 and thereafter it was lodged with the Canning Police Station on the basis of which formal FIR was drawn up by A.S.I. Somnath Banerjee, P.W. 8, who had started Canning P.S. case no. 147 dated 30th November, 2000 under section 302/34/120B of IPC and section 25/27 of the Arms Act against one Bhutto and four others after filling up the formal FIR, which has been proved as Exbt. 4 with his signature and the endorsement made on the written complaint (Exbt. 1/1).
The investigating officer took up the investigation and examined witnesses who have corroborated the prosecution case through and through. We are of the view that prosecution has been able to substantiate the charges levelled against the accused persons, the appellants herein.
With regard to interestedness of witnesses, learned counsel for the State referred to a decision in the case of Israr -vs- State of U.P., reported in AIR (SC) 249 and relied on paragraph 12 of the cited decision, wherein it has been observed thus:
"We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."
The long standing decision in the case of Dalip Singh and Ors. -vs- The State of Punjab, reported in AIR 1953 SC 364 is also held pat on the point in which it has been held thus:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
Therefore, relationship of a witness with a deceased cannot be said to be a factor to affect the credibility of the prosecution witnesses who have corroborated by their ocular testimony about the incident of crime taking place at the potato field of Jhoro Mondal.
Reference has also been made to a decision in the case of State of U.P. -vs- Ballabh Das and Ors., reported in (1985) 0 (SC) 1384, wherein it has been categorically observed that in case where a murder takes place in a village where there are two factions bitterly opposed to each other, it would be idle to expect independent persons to come forward to give evidence and only partisan witnesses would be natural and probable witnesses to the incident. In such a case, it would not be right to reject their testimony out of hand merely on the ground that they belonged to one faction or another. Their evidence has to be assessed on its own merits. In paragraph 5 of the cited decision it has been observed :
"The dominant question to be considered in he instant case is whether the witnesses, despite being interested, have spoken the truth and are creditworthy. Once it is found by the court, on an analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone."
Therefore, we do not agree with the contention raised by learned counsel for the appellants that the evidence of the prosecution witnesses cannot be relied upon in this case being interested witnesses.
With regard to medical evidence, as emerges from the post-mortem report, which has been proved as Exbt. 6, but without examining the autopsy surgeon, learned counsel for the appellants refers to a decision in the case of Vijender, Devinder @ Bhinder and Mukesh Kumar -vs- State of Delhi, reported in (1997) 6 SCC 171, wherein it has been observed in paragraph 19 as follows:
"It passes our comprehension how the trial Judge entertained the post-mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the post-mortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post-mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of PW 21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the original report but only a carbon copy thereof and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post-mortem report did not come within the purview of any of the clauses of Section 65 it was not admissible on this score also."
In respectful consideration of the decisions cited on behalf of the appellants, we are of the view that in the instant case no objection was raised on behalf of the defence with regard to admission of carbon copy of post-mortem report in evidence without original being produced in Court. Here, our attention is invited to order no. 54 dated 30th April, 2004 passed by learned Additional Sessions Judge in S.T. Case no. 1(7) of 2002 and also to the list of documents, the articles admitted in evidence on behalf of the prosecution which shows that Exbt. 6, being the carbon copy of the post-mortem examination report was taken on evidence without objection.
It would reveal from the post-mortem examination report that the deceased died due to effect of cut throat wound, shot gun wound as well as other wounds noted in various columns of the P.M. report Exbt.-6 with the opinion of the Autopsy Surgeon as to the cause of death of the deceased Jatin Mondal as antimortem and homicidal in nature. We are of the considered view that ocular testimony of prosecution witnesses, namely P.W. 3, P.W. 4, P.W. 5 and P.W. 7 finds corroboration with the medical evidence and the post-mortem report (Exb.t
6) admitted in evidence without being objected to by the defence during trial. In our opinion P.M. report can be considered as a public document and judicial notice can be taken on the same in the given facts of the case where there is no whisper of any objection raised by the defence. Therefore, the above cited decision is not well nigh with the facts and circumstances of the instant case.
Admittedly, there is some defect in the investigation as the investigating officer did not send the seized Alamats to FSL to ascertain as to whether the sample of blood collected is human blood or not or tally with the blood of the deceased. It is true that I.O. did not send the seized Alamat being blood smeared earth and control earth and the wearing apparels of the deceased but that does not go to the root of the prosecution in view of the authority in C. Muniappan & Ors. vs. State of Tamil Nadu reported in 2010(9) SCC 567, wherein it has been observed thus:
"The law on the issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If prima facie is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth."
Therefore, deficiencies in investigation by the Investigating Officer cannot justify the rejection of the prosecution case inasmuch as we have found on appraisal of the evidence on record that ocular testimony of the eye witness are in corroboration with the medical evidence in crystal clear term. We hold accordingly that the prosecution has been able to substantiate the charges levelled against the accused persons/appellants herein, beyond shadow of reasonable doubt, we thus, find no ground to interfere with the judgment and order impugned by which the appellants were convicted and sentenced to imprisonment for life and for payment of fine amount with default clause.
It is submitted by learned counsel for the appellants that Amulya Sardar was acquitted from the case. Santanu Das, the appellant no. 1 was arrested on 25th May, 2001 and since then he is in custody. Bhusan Halder, the appellant no. 3 was also arrested on 23rd March, 2001 and in custody. So both the appellant nos. 1 and 3 are in incarceration in jail for last 17 years. Mahinder Halder, the appellant no. 2 was arrested on 23rd March, 2001 and was enlarged on bail on 28th February, 2008 on his sentence being suspended. So he has already suffered imprisonment of 7 years in jail. Similarly, Nasim Ali Gazi @ Nochay, appellant no. 4 was arrested on 22nd March, 2001 and was enlarged on bail on 22nd February, 2008 on his sentence being suspended. So, he has also spent 7 years in custody. Mannan Ali Gazi @ Mannan, appellant no. 5 was arrested on 23rd March, 2001 and was bailed out on 17th July, 2014, during the pendency of this appeal and had suffered 14 years in custody.
Thus, learned counsel for the appellants submits that the sentence imposed may be reduced to the period already undergone by them. Having regard to the discussion made in the foregoing paragraphs and considering the ocular testimony of the eye witnesses and the gruesome murder of the deceased Jatin Mondal, we are of the opinion that the intention to kill Jatin was writ large in the minds of the accused persons/appellants herein which came out through their action. So, this is not a case where sentence can be reduced within the fold of section 304(II) of Indian Penal Code.
In the result, the appeal fails and is dismissed.
Appellant nos. 2, 4 and 5, namely Mahinder Halder, Nasim Ali Gazi @ Nochay and Mannan Ali Gazi @ Mannan, who are on bail are directed to forthwith surrender before the learned court below to serve out the sentence.
Let a copy of this judgment along with the lower court records be sent down forthwith to the learned Court below for information and doing the needful.
A copy of this judgment be supplied to the appellants free of cost forthwith.
(RAKESH TIWARI, J.) (SHIVAKANT PRASAD, J.)