Calcutta High Court (Appellete Side)
Sanaul Islam vs The State Of West Bengal on 3 September, 2019
Author: Arijit Banerjee
Bench: Arijit Banerjee
1 In The High Court At Calcutta Criminal Appellate Jurisdiction Appellate Side CRA 406 of 2008 Sanaul Islam
-Vs.-
The State of West Bengal Before : The Hon'ble The Chief Justice Thottathil B. Radhakrishnan & The Hon'ble Justice Arijit Banerjee For the appellant : Mr. Kazi Safiullah, Adv.
For the State : Mr Arun Kumar Maity, Ld. APP
Ms. Kakali Chatterjee, Adv.
Heard On : 15.07.2019, 31.07.2019, 07.08.2019
CAV on : 07.08.2019
Judgment On : 03.09.2019
Arijit Banerjee, J.:-
(1) This is an appeal against the judgement and order dated 29 May, 2008 passed by the learned Additional Sessions Judge, 3rd Court, Malda in Sessions Trial No. 1(4)/07 arising out of Sessions Case No. 152/2006. The appellant was charged with offence punishable under Section 302 of the Indian Penal Code (IPC). By the judgement and order under challenge the learned trial Court has found the appellant guilty of such offence and has convicted the appellant under Section 302 of IPC. 2 (2) Having heard the appellant on the point of sentence, the learned Trial Judge came to the conclusion that this was not one of the rarest of rare cases which should attract the penalty of capital punishment. Punishment of life imprisonment and fine of Rs. 2,000/-, in default rigorous imprisonment for six months, was imposed on the appellant. Hence, this appeal.
(3) The essence of the prosecution case is that at about 9:15 PM on 18 August, 2002, the appellant entered into a verbal altercation with his father Jamshed Alam, the victim, in the family home. In course of such heated exchange of words, the appellant became excited and tried to attack his father. The other sons of the victim who were present there, stopped the appellant and drove him out of the house. A few minutes thereafter, the appellant came back to the house and stabbed the victim on his chest with a knife like weapon. On hearing the scream of the victim, Akbar Ali who is another son of the victim and other family members came out of their respective rooms and tried to apprehend the appellant, but in vain. The appellant fled. The victim was removed to hospital for treatment where he succumbed to his injury he had received, on the same night at about 12:00 A.M. (4) The plea of the accused was that there was an altercation between the informant Akbar Ali and his father, the victim, in their 3 husking mill. In course of such altercation, the victim fell down on an iron rod and sustained injury to which he succumbed. On the date of the alleged incident the appellant was working in the shop of one Dilip Sengupta and on returning home, he learnt about the incident. Akbar Ali, being the elder brother of the appellant in order to grab the appellant's share in the father's property has implicated him in a false case.
(5) The prosecution examined eight witnesses. The defence examined one witness. The defence witness who claimed to be a resident of Govindapur where the appellant also resided, only said that he knew the appellant, his elder brother, Akbar Ali and his father, the victim. He also said that the father is dead but he does not know as to how he died.
(6) The learned Trial Judge analysed the evidence on record and convicted the appellant. Let us see how far such conviction is sustainable.
(7) We have gone through the evidence on record in details. Although, PW1 was the informant, he was not an eye-witness to the incident. The crucial witnesses in so far as the prosecution is concerned, are PW2, PW3 and PW4.
4(8) PW2 is the wife of the victim and the mother of the appellant. She deposed that her husband was murdered by her son being the appellant. The occurrence took place in the night at about 9 P.M. in their house. The appellant stabbed her husband on his chest with a gupti like weapon. When the appellant was about to stab again the victim's daughter, Ruli Bibi (PW-3) resisted and caught hold of the gupti as a result of which her three fingers were cut. At the time of the incident, PW2 was standing nearby and her daughter was standing near her father (victim). The other sons of the victim took the injured victim to hospital where he succumbed to the injuries around midnight.
(9) PW3 is the daughter of the victim. She also deposed to the same effect with minor variations which are really of no consequence. Instead of gupti she mentioned 'Bhujali'. She further deposed that when the appellant tried to give a second blow to the victim, she caught hold of the weapon and shouted and in the process he sustained minor injury on her fingers.
(10) PW4 is another son of the victim i.e. Md. Tajamul Haque. He deposed that on the date of the incident prior to 9 P.M. there was an altercation between the victim and the appellant over the issue of acceptance of the appellant's wife in the family. The appellant 5 become excited and attempted to assault the victim. The other brothers including the PW4 drove him out of the house and they went back to their respective rooms. A few minutes later on hearing sound of tin (a tin gate led to the family home), he came out of his room and found the appellant stabbing the victim with a knife like weapon. When he tried to catch hold of the appellant he threatened PW4 at the point of such weapon. PW4 retreated and taking advantage of the same the appellant fled. PW4, his elder brother Akbar and another brother and one neighbour took the injured victim to Sadar Hospital by motorcycle. The victim, and his two sons, Akbar Ali and Manirul Islam went on one motorcycle. PW4 and his neighbour Asanoor were on another motorcycle. The victim was admitted to Malda Sadar Hospital at about 11.50 P.M. the victim succumbed to the injury he had received.
(11) PW6 is the doctor who carried out the post-mortem of the victim's dead body. He deposed that he found one 1"x ½" incised wound over the right forearm of the victim and one 1" x ¾"
penetrating stab wound over Epigastrium (lower portion of middle of the chest) cutting sternum at its lower part and heart. All viscera were pale. Pericardium and heart were incised. In his opinion the death was due to the effect of ante-mortem injuries, homicidal in nature. He 6 further deposed that the injuries noted on the victim's body could be caused by 'gupti' or dagger like weapon. He proved the Post Mortem report and tendered it in evidence.
(12) PW7 is the Investigating Officer (I.O.). He deposed that he seized one cover of 'gupti' , one red colour napkin with blood stain and one striped lungi with blood stain from the place of occurrence. He tendered the seizure list as an exhibit. He narrated in his evidence what PW3 told him when she was examined by him under Section 161 of the Cr.P.C.. We find that the evidence of PW3 is fully corroborated by the evidence of PW7.
(13) PW8 is the doctor who attended to the victim when he was hospitalised after the incident. He deposed that the victim was admitted in hospital with the history of stab injury on the lower portion of his chest. The condition of the victim was very critical and he expired at about 12.05 A.M. (14) There were at least three eye-witnesses to the incident i.e. PW-2 (victim's wife), PW3 (victim's daughter) and PW4 (victim's son). There is little scope for doubting that the appellant stabbed the victim on the lower chest causing serious injury to which the victim succumbed in hospital.7
(15) The case of alibi sought to be made out by defence counsel is not supported by any evidence at all. Dilip Sengupta, in whose shop the appellant was allegedly working at the time of the incident, was not examined nor is there any other evidence which would substantiate the case of alibi.
(16) The other contention of the defence counsel that the appellant has been falsely implicated in this case to deprive him of his share in his father's property, is also not acceptable. It is true that under Sunni Law a person who causes the death of another person is not entitled to inherit the property of that person, no matter whether the death was caused intentionally or by accident. Under Shia Law, the murderer of a person is disentitled to inherit him only when the death is caused intentionally. However, we are unable to accept that with this motive PW1 implicated the appellant in a false case of murdering the father and the other siblings of the appellant adduced false evidence to establish the false case initiated at the instance of PW1. Leaving aside the brother and sister of the appellant for a moment, it may be noted that the wife of the victim, who is the mother of the appellant also implicated the appellant by her evidence. In the ordinary course of things, a mother would never give false evidence against her son, however bad the son may be, knowing fully well that such false 8 evidence would have grave consequences for her child. This is the normal maternal instinct. We have no reason to believe that PW2 (mother) sided with her other children to bring home a false case of the appellant having inflicted a fatal wound on the victim by a knife like weapon. Just as all five fingers of a hand are precious and important to a person, ordinarily all the children are equally precious and loved by a mother and we find no reason to disbelieve the evidence of PW2. In our opinion, the evidence of PW2 alone would be sufficient to establish the charge brought against the appellant. (17) The evidence of PW2 is wholly corroborated by the evidence of PW-3 and PW-4 who remained unshaken in cross-examination. The evidence on record does not reveal any animosity between PW2, PW3 and PW4 on one hand and the appellant on the other. In our view, the case sought to be urged on behalf of the appellant that the siblings of the appellant conspired to implicate him in a false case of murder of their father is farfetched and is not substantiated by the evidence on record.
(18) The appellant was examined under Section 313 of the Cr.P.C. We have read his statement. The entire prosecution case was put to him.
In answer to almost all the questions he stated that the allegations were "false". It was a bare denial. No further explanation was offered 9 by him. In answer to one question he said he was not present at the place of occurrence at the time of the incident. This plea of alibi was not supported by any evidence. In the Section 313 statement also he did not mention at which other place he was at the time of the incident. Having carefully considered the appellant's statement recorded under Section 313 of the Cr.P.C. we are of the definite opinion that the same deserves no credibility at all. (19) It is established law that merely because an eye-witness is related to the deceased, even if contradictions are found in his/her evidence, the same cannot be discarded if his/her credibility is unshaken (see State of Madhya Pradesh- vs.- Chhaakki Lal & Anr., AIR 2019 SC 381).
(20) The learned trial Judge had the opportunity to observe the demeanour of the witnesses and assess their credibility. The learned Judge's appreciation of evidence should not be interfered with by the High Court unless vitiated by serious error [State of Madhya Pradesh- vs.- Chhaakki Lal & Anr. (supra)].
(21) The evidence on record leaves no room for doubt that the appellant being driven out by the other sons of the victim from the family house, following the appellant's attempt to assault the victim, a few minutes later he came back armed with a knife like weapon with 10 the intention of killing the victim or at least with the intention of causing bodily injury to the victim which is sufficient in the ordinary course of nature to cause death. The act of the appellant clearly amounted to murder and none of the exceptions under Section 300 of the IPC applies to the facts of this case. The medical evidence also indicates that the victim's death was caused by ante-mortem injuries found on the body of the victim which were homicidal in nature. (22) Learned defence counsel urged that the post-mortem report and the deposition of the autopsy doctor record two injuries on the body of the victim. The injury on the right forearm is unexplained. We do not think so. The learned trial Judge has rightly held that it is natural that when one is attacked with a knife, one almost by way of reflex action raises his arms to protect himself from the imminent blow. To our mind, this is what actually happened. In any event, the injury on the right forearm does not appear to be very relevant as the death appears to have been caused because of the pericardium and the heart being incised.
(23) The issue of delay in lodging First Information Report (FIR) raised by defence counsel before the learned Trial Judge has also been rightly negated by the learned Judge with reasons which we find to be sound and logical.
11(24) In view of the aforesaid, we are of the considered view that there is no infirmity or illegality in the judgment and order impugned before us. The decision of the learned Judge is a well reasoned one and based on proper legal principles as well as unimpeached evidence. We affirm the decision of the learned trial Judge. Consequently, the appeal fails and is dismissed.
(25) However, upon the appellant serving out the period of fourteen years, if an appropriate application is made for remission, the same shall be considered by the statutory authority in accordance with law and as expeditiously as may be convenient.
(26) Before parting we feel impelled to express our dissatisfaction regarding the manner in which the I.O. has conducted himself. In spite of seizing a napkin and lungi from the place of occurrence with blood stains on them, the I.O. did not send the same to the Forensic Science Laboratory for testing as to whether or not the blood was that of the victim. In our opinion, the same should have been done as a matter of course. It is expected of all I.O.s to discharge their duties in a more efficient and professional manner as such a lapse may enable actual offenders to escape conviction in a case where other incriminating evidence, as overwhelming as in the present case, is not available. (27) The appeal is disposed accordingly.
12(28) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)