Calcutta High Court (Appellete Side)
Kamal Sk. Alias Kamaluddin Sk. & Ors vs The State & Anr on 16 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 20 of 1996
Kamal Sk. Alias Kamaluddin Sk. & Ors.
-vs-
The State & Anr.
For the appellant : Mr. Sandipan Ganguly, Sr. Adv.
Ms. Sreyashee Biswas
For the State : Mr. Arun Kr. Maity
Mr. Anjan Datta
Heard on : 16.01.2018
Judgement on : 16.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 19th January, 1996 passed by the learned Additional Sessions Judge, 2nd Court, Murshidabad in Sessions Trial No. 1(2)94 arising out of Sessions Serial No. 6 of 1990 convicting the appellants for commission of offence punishable under Sections 304 Part II read with Section 34 of the Indian Penal Code and directing them to suffer rigorous imprisonment for ten years each and pay a fine of Rs.5,000/- each, in default to suffer rigorous imprisonment for six months more.
The prosecution case as alleged against the appellants is to the effect that Ziller Rahaman, P.W. 1 herein, along with his brother Amrul Haque was proceeding to attend the festival at the residence of Ansar situated at Daskhin-Pakurdiar on 17.07.1986 at about 7P.M. When they reached near the residence of Mansur Sk. (P.W. 4), at Dakshin- Pakurdiar, the appellants along with other accused persons viz. Ismile Sk. Rofejuddin, Rajimuddin, Ahasan, Josimuddin, Anesur, Mojibur Rahaman, Jamaluddin, Kamaluddin, Jahangir and Karim Mondal and others assaulted the victim with lathi, hasua and fala etc. Ziller Rahaman managed to flee away and from a distance saw the assault on his brother Amrul by the accused persons. On the cry of Ziller, Jan Mahammad (P.W. 2) and Moslem Sk. (P.W. 8) and others came to this spot and witnessed the incident. Thereafter the accused persons left the spot with the bicycle. Complaint was lodged by Ziller Rahaman with the police resulting in registration with Jalangi Police Station Case No. 11 dated 18.07.1986 under Sections 302/34/379 of the Indian Penal Code against the appellants and other accused persons. In conclusion of investigation, charge-sheet was filed against the appellants and other accused persons and the case was committed to the Court of Sessions and was transferred to the Court of Additional Sessions Judge, 2nd Court, Murshidabad for trial and disposal. Charges were framed under Sections 304/34 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined eighteen witnesses and exhibited a number of documents. The defence of the accused persons was of innocence and false implication. The specific defence of the accused persons is that the incident did not occur in the manner and the course as narrated by the prosecution witnesses. The victim Amrul was a person of bad character and had been murdered by unknown assailants. The appellants have been falsely implicated in the instant case due to long standing land dispute. In conclusion of trial, the trial court by judgement and order dated 19th January, 1996 convicted and sentenced the appellants, as aforesaid. However, the court acquitted the other accused persons from the charges levelled against them.
Mr. Ganguly, learned senior Counsel with Ms. Biswas, appearing for the appellants submits that presence of P.W. 1 at the place of occurrence is doubtful. P.W. 7, the dafader who had first informed the police about the incident did not find P.W. 1 at the place of occurrence and his evidence is corroborated by P.W. 9, a local witness. Evidence of P.W. 2 and P.W. 12 who claimed to be eye-witnesses did not support the prosecution case against the appellants at all. There is no explanation as to why their evidence is ignored by the learned trial judge in coming to a finding of guilt against the appellants. It is also submitted that other eye-witnesses viz. P.W. 8 and P.W. 11 did not give out the names of the appellants at the earliest opportunity to the police. He accordingly prayed for acquittal of the appellants.
Mr. Maity, learned Additional Public Prosecutor, along with Mr. Dutta, learned advocate appearing for the State argued that the evidence of P.W. 1 is corroborated by P.Ws. 8 and 11. They have consistently spoken about the assault by the appellants on the victim resulting in his death. Evidence of P.Ws. 2 and 12 ought to be discarded as they are unreliable witnesses. He prayed for dismissal of the case.
Analysis of the evidence on record particularly that of the purportedly eye-witnesses viz. P.Ws. 1, 8, 11 and 12 gives rise to a peculiar state of affairs. While P.Ws. 8 and 11 spoke of assault on the victim by the appellants, P.Ws. 2 and 12 had categorically deposed that some other persons had assaulted the victim resulting in his ultimate death. Hence, it is important to analyse their evidence as to whether such dichotomy may be harmonised in the facts of the case or not.
P.W 1 Jiller Rahaman is the brother of the de facto complainant. He deposed that on 17.7.86 at about 7 p.m. he along with his brother Amrul was proceeding to attend a festival in the residence of one Ansar at Daskhin Pakurdiar. They were riding in a bicycle and when they reached at the residence of Mansur Sk., Ismile Sk, Rofejuddin, Rajimuddin, Ahasan, Josimuddin, Anesur, Mojibur Rahaman, Jamaluddin, Kmaluddin, Jahangir, Rajjak, Rokeb, Karim Mondal and Yasin surrounded them with deadly weapons. Two of the accused persons took him to a side and asked him to sit down and thereafter Rofejuddin, appellant no. 4, struck his brother with a lathi on his head. As a result his brother fell down from the cycle. The other accused persons Rokeb, Rejjak and Yasin asked him to remain seated and threatened him if he moved he would face dire consequences. Other accused persons conjointly struck his brother with lathi, kural etc. He shouted for help. As a result one Jan Mohammad (P.W 2), Musaruddin Sk. (P.W 11), Arsad (P.W 12) and others came to the place of occurrence. They requested the accused persons to spare his brother from the assault. The accused persons thereafter left the spot. Within a few minutes his brother died on the spot. The relationship between them and the accused persons were already strained over land dispute. He lodged FIR on the following day as he was afraid to lodge the FIR immediately. He proved the written FIR and his signature on it. He stated that Mejobabu of Jalangi P.S wrote down the FIR and he signed on it. He proved signature of the witness on the FIR (Ext. 1/1).
In cross examination, he stated Umar Ali, P.W 7 who is the village dafader came to the place of occurrence around 8/8.30 p.m. He disclosed to Umar Ali that he had seen the accused persons assaulting his brother and also named them. Thereafter he stated that Umar Ali came on the following day at about 8/8.30 a.m. to the place of occurrence. He had left for P.S on foot to inform Darogababu at 3 O'clock in the night and reached the P.S at 4.30 a.m. in the morning. He narrated the incident to Darogababu and thereafter his statement was written down and he accompanied Darogababu in a jeep to the place of occurrence. At the place of occurrence Darogababu made inquest on the dead body of Amrul. On that day Jan Mohammad, Musaruddin, Arsed, Samsuddin and Osman were present during inquest and signed as witnesses. They took breakfast at 7 a.m. At about 11/12 O'clock they took their meal in the day thereafter they did not take any meal.
P.W 8 Moslem Sk. deposed that the victim was murdered 7/8 years ago. Hearing a hue and cry he came to the place of occurrence. He found the appellants were assaulting the victim with lathis. As a result the victim fell down on the ground and the appellants fled away. The victim died on the spot. He did not enquire from anybody about the other assailants. In cross examination, he stated that he came to court in the same bus with Jiller, P.W 1 and Mosaruddin, P.W 11 also accompanied them in the same bus. He did not mention the names of the four accused persons to any other persons. Jan Mohammad was present at the place of occurrence. He did not say anything to Darogababu. During inquest he was present there. Musuruddin and others were also present. Before arrival of Darogababu nobody mentioned the names of the assailants of Amrul.
P.W 11, Abu Mosaruddin Sk. deposed that Amrul was murdered 8 years ago. He came to the place of occurrence hearing hue and cry. He found the appellants were assaulting the victim. The victim died within a few minutes. The appellants fled away. The date of occurrence was a moonlit night. In cross examination he stated that P.W 2, Jan Mohammad is his father. His father was present at the place of occurrence. He had mentioned the name of the assailants to Darogababu. He also informed darogababu that it was a moonlit night.
P.W 2, Jan Mahammd stated that Amrul was murdered 7/8 years ago. The occurrence took place around 6 in the evening. Hearing the hue and cry he came to the place of occurrence and found that some persons wee holding the hands of Amrul and he rescued Amrul from that position. Then Saidul, Afajuddin and Erfan struck him down on the ground. Then all the accused namely Moharam, Latib, Abdul, Bujlu, Akkaj and others assaulted him with lathi.
P.W 12, Md. Asad Ali stated that the occurrence took place in the evening 7/8 years ago. After attending Namaj he was standing by the side of road and found Afajuddin, Erfan and others were holding Amrul and he was assaulted by Erfan, Afajudin, Mograb, Saidul and Lokman with lathis. He stated that persons who were present on dock did not assault the victim.
P.W, 5 Samauddin Ahammed is a witness to the inquest over the dead body of the victim. He proved his signature on the inquest report. He also signed on the seizure list prepared in connection with a seizure of blood stained earth and wearing apparels of the victim.
P.W 7, Md. Ummar Ali deposed that he is a dafader of Faridpur Gram Panchayat. Pakurdiar is situated within the Panchayat. 7/ 7½ years ago Amrul was murdered. He signed on the inquest report (Ext. 2/2). In cross examination he stated that the incident took place at 7/7.30 p.m. He informed the local police at 3 a.m in the night. He did not mention the names of the assailants of Amrul at police station. Darogababu came to the place of occurrence on the following morning ad after reaching the place of occurrence. He prepared inquest report over the dead body of Amrul. When he went first to the place of occurrence at 7.30/7.40 p.m no other persons were present there.
P.W 9, Osman Munshi deposed that Amrul was murdered 8/9 years ago. He found the dead body was lying by the side of his residence. Nobody was present there.
P.W 18 is the medical officer who conduced post mortem over the dead body of the victim. He found the following injuries :
1) Depressed fracture of skull. Several pieces - brain matter lacerated
2) one lacerated wound on right side of forehead measuring about 4" x 3" x skull
3) one lacerated wound on the middle of forehead measuring about 1½ " x ½ " x skull
4) one lacerated wound on back of head measuring about 3 " x 1½ " x skull
5) one lacerated wound on back of right arm measuring about 1 "
x ½ " x bone
6) one lacerated wound on the back of left fore arm measuring about 1 " x ½ " x bone
7) 3 stab injuries on right leg about 1½ " x ½ x bone.
In his opinion, death was due to shock and haemorrhage, as a result of injuries stated above ante mortem and homicidal in nature. He proved the post mortem report (Ext. 7). He stated injuries no. 1 to 6 might be caused by blunt weapon like lathi, and injury no. 7 was caused by sharp cutting weapon. In cross examination he stated that stomach of the victim was found healthy and there was undigested food. If a person dies within 4 to 6 hours from the time of his taking food there would be undigested food in stomach.
P.W 15 is the investigating officer in the instant case. He deposed that he received information from the dafader and came to the place of occurrence. He recorded statement of Jillar Rahaman and signed thereon (Ext. 1). He drew up formal FIR (Ext. 5). He visited the place of occurrence, held inquest over the dead body of the victim and seized earth and grass stained with blood and wearing apparels under seizure list. He sent the dead body for post mortem examination. He recorded statements of witnesses and collected post mortem report. He proved inquest report (Ext. 2). In cross examination, he stated that no names of he assailants are stated the inquest report. P.W 11 did not tell him that the appellants had assaulted the victim with lathis but he told about the assault with other weapons including lathi.
P.W 17 is the second investigating officer who completed investigation and filed charge sheet.
It has been argued that the incident did not occur at the time and place as narrated by P.W 1. It has also been argued that presence of P.W 1 at the place of occurrence is not supported by the evidence of P.W 7 and 9 and it appears that the FIR was recorded after the police had arrived in the village pursuant to information sent by P.W 7 to the police station and P.W 1 had not gone to the police station early in the morning and lodged the complaint as claimed by him.
From the evidence on record it appears that P.W 15 received information about the incident from P.W 7, the dafader of the Panchayet and upon arriving at the place of occurrence had recorded the statement of P.W 1 which was treated as FIR. In the said statement P.W 1 had named the appellants and other accused persons as the assailants of the victim. Blood stained earth and wearing apparels of the victim were also seized from the place of occurrence. Even if one discounts the evidence of P.W 1 that he went to the police station early in the morning and lodged complaint with the police at the police station, P.W 15 stated that the complaint was narrated to him by P.W 1 when he arrived at the place of occurrence on or about the time when he held inquest over the dead body of the victim. Hence, the absence of the names of the accused persons in the inquest report would not affect the prosecution case since the FIR had been recorded on or about the same time. It, therefore, appears that the victim had suffered injuries at the time and place as proposed by the prosecution in the instant case. The next question which arises is who were the assailants of the victim? P.W 1 deposed that all the accused persons including the appellants had assaulted the victim had assaulted the victim. P.W 8 and 11 have specifically stated about assault by the appellants while P.W 2 and 12 have deposed that some other persons had assaulted the victim. It is pertinent to note that P.W 1 admitted of the presence of P.W 2 and 12 at the place of occurrence as eye witnesses. It is also important to note that the said witnesses who did not support the prosecution case have not been declared hostile during trial. There is nothing on record to explain away the contradictory versioin of P.W 2 and 12 who spoke of assault by other persons (not put up for trial) resulting in the death of the victim.
On the other hand, evidence has come on record that there was a long standing land dispute between the appellants on the one hand and P.W 1 and the victim on the other and there is likelihood that P.W 1 may have falsely implicated the appellants when his brother was murdered by other individuals as narrated by P.W 2 and 12.
It is trite law that when two contradictory versions emerge from the evidence of prosecution witnesses the benefit of doubt ought to be extended to the appellants. I find that no effort had been taken by the prosecution to improbabilise the contradictory version coming from the mouths of P.W 2 and 12 who appear to be eye witnesses of the incident.
As their evidence creates a dichotomy in the prosecution case and runs counter to the version narrated by P.W 1, 8 and 11, I am constraint to hold that the prosecution has failed to prove that the appellants had assaulted the victim resulting in his death beyond reasonable doubt.
Hence, the conviction and sentence of the appellants are set aside.
The appellants shall be discharged from their bail bonds after a period of six months in terms of section 437 A Cr.P.C.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree (Rajarshi Bharadwaj, J.) rkd/tkm