Calcutta High Court (Appellete Side)
Yusuf Warsi vs The State Of West Bengal on 17 May, 2010
Author: Kalidas Mukherjee
Bench: Ashim Kumar Banerjee, Kalidas Mukherjee
1
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
AND
THE HON'BLE MR. JUSTICE KALIDAS MUKHERJEE
CRA NO. 83 OF 2006
Yusuf Warsi
Vs.
The State of West Bengal
For the Appellant: Ms. Minati Gomes
For the State : Mr. R. K. Ghosal
Mr. Joyanta Narayan Chatterjee.
HEARD ON: 04.5.2010 & 05.5.2010
JUDGMENT ON: May 17, 2010.
KALIDAS MUKHERJEE, J.
1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 9th Fast Track Court, in Sessions Trial No. 1(8) of 2002 arising out of Sessions Case No. 78 of 2002 sentencing the appellant to suffer R.I. for life and to pay fine of Rs.2,000/- in default to suffer S.I. for six months.
2. The case of the prosecution, in short, is that one Md. Akbar lodged complaint alleging that on 12.11.2001 at about 7.30 P.M. Bachcha Raju, Ullu Raju and Kamal, the known miscreants came to his house and started 2 abusing in the name of his younger brother Md. Asgar @ Bablu and demanded money from them. At that time all the brothers of the informant were present in their house. The accused persons asked Md. Asgar @ Bablu to step down and thereafter they went down stairs. The informant and his brothers also went down stairs and thereafter they saw that the accused persons were beating a neighbouring boy named Bombaiya. When the informant and his brother resisted, all of them drew out their firearms. Being frightened, the brothers of the victim went back and the accused persons dragged Md. Asgar @ Bablu a little distance away and abused him as he did not give them money. Soon thereafter they shot at the forehead of Md. Asgar with a firearm in front of their house on market area and beside the CESC Feeder Box. Thereafter they ran away towards Coolins Street. Asgar fell down having sustained bleeding injuries. The informant Md. Akbar and other people rushed to that place and took Md. Asgar to the Medical College & Hospital in unconscious condition. He was admitted there. Subsequently Md. Asgar succumbed to the injuries. The statement of Akbar was recorded by the police officer when he along with others took the injured to the hospital. This statement was treated as the F.I.R.
3. The Taltala P.S. case No. 458 dated 12.11.2001 was started and after completion of investigation the charge sheet was submitted. The charge was framed under Section 302/34 against the accused Rashid Alam @ Gabbar and Raju @ Yusuf Warsi @ Bachcha Raju who faced the trial. The 3 charge was read over and explained to the accused persons who pleaded not guilty and claimed to be tried.
4. The learned Trial Judge upon consideration of the materials on record was pleased to hold that accused Rashid Alam @ Gabbar was not guilty of the charge and, accordingly, he was acquitted. The learned Trial Judge, however, on the basis of materials on record convicted the other accused Yusuf Warsi @ Bachcha Raju under Section 302/34 I.P.C. and sentenced him to suffer R.I. for life and also to fine of Rs.2,000/- in default to suffer S.I. for further period of six months. The learned Trial Judge held that Bachcha Raju shared the common intention with other absconding accused persons to commit murder of Md. Asgar @ Bablu and in furtherance of their common intention caused murder of Bablu. The learned Trial Judge held that the prosecution was able to prove beyond reasonable doubt that Bachcha Raju and two other F.I.R. named persons came in front of the residence of the deceased, abused him and demanded money. It was held that the chain of circumstances irresistibly suggested that Bachcha Raju was sharing the common intention to commit murder of Md. Asgar. The learned Judge further held that the contradictions were not material, but, minor discrepancies, and the evidence of the witnesses were trustworthy on material points of the incident. The learned Judge relied on the evidence of P.W. 7, P.W. 8, P.W. 9 and P.W. 10. The learned Judge held that the prosecution could not be doubted only on the ground that local people were not examined as witnesses during the trial of this 4 case. The learned Judge, however, mentioned that P.W. 13 Illius Molla was an independent witness who was present there. The learned Judge ultimately found the present appellant guilty and passed the sentence as stated above.
5. Ms. Minati Gomes learned Counsel appearing for the appellant submits that the conviction as recorded by the learned Trial Judge is based on suspicion and the witnesses examined in this case are mostly related to the informant. It is submitted that there were marked discrepancies between the statement of the witnesses recorded under Section 161 Cr.P.C. and their evidence recorded at the time of trial. Miss Gomes submits that there was no prior meeting of minds and, as such, there was no element of common intention so as to attract Section 34 I.P.C. It is submitted that since the other accused Gabbar was acquitted and in view of the charge under Section 34 I.P.C., the present appellant also should get benefit of doubt. Ms. Gomes submits that at the time of the alleged incident the accused persons were assaulting Bombaiya, who although cited as witness in the charge sheet, has not been examined. It is contended that in view of the non-examination of Bombaiya, the adverse presumption should be drawn against the prosecution. Miss Gomes submits that P.W. 13, the only disinterested witness examined in this case, cannot be relied upon, inasmuch as, there was discrepancy between his statement recorded under Section 161 Cr.P.C. and his testimony recorded at the time of trial. 5
6. Mr. Ghosal the learned Counsel appearing on behalf of the State submits that Gabbar's name was not mentioned in the F.I.R. It is contended that post mortem examination was done and the Autopsy Surgeon found that there were gunshot injuries. It is submitted that P.W. 12, the ballistic expert opined that the bullet was fired from the improvised firearm. It is submitted that the present appellant along with the others came to the house of the victim and demanded money and thereafter dragged him to a place near the electric feeder box and caused his death by firing from the revolver. Mr. Ghosal relies on the evidence of P.W. 7, P.W. 8, P.W. 9, P.W. 10 & P.W. 13. Mr. Ghosal contends that since the chain of circumstances was complete, the learned Trial Judge was justified in passing the impugned judgment of conviction and sentence.
7. Out of 18 P.Ws. examined by the prosecution P.W. 7, P.W. 8, P.W. 9, P.W. 10 & P.W. 13 are said to have witnessed the occurrence. P.W. 7, Md. Akbar, the informant, is the brother of the victim. It is in his evidence that on 12.11.2001 at about 7.30/8.00 P.M. all of them were in their house; Bachcha Raju, Ullu Raju and Kamal were at the roof of the building and were abusing Md. Asgar @ Bablu. It is in his evidence that at that point of time those persons asked Asgar to come down for having a discussion with them. P.W. 7 has stated that thereafter all those three persons were coming down from the roof and Asgar followed them. He has stated that they were also coming downstairs and when they got down from the building and rushed to the road they noticed that Bachcha Raju, Ullu Raju 6 and Kamal were assaulting Bombaiya and on seeing the same, Asgar tried to rescue Bombaiya. The accused persons then abused Asgar asking him as to why he did not pay money to them according to their demand and threatened him with dire consequences. It is in his evidence that the accused persons then surrounded Asgar and dragged him to a nearby electric pole on market street and the accused Ullu Raju fired aiming at the forehead of Asgar and the other three miscreants fled away towards Collins Street. The injured was then taken to the hospital. Md. Akbar, the brother of Md. Asgar, went to the hospital and he stated the incident to the police officer who recorded the statement. At about 9.30 p.m. Asgar succumbed to the injuries.
8. P.W. 8 Husnara Begum has stated that Asgar and Akbar are her brothers.
On 12.11.2001 in the evening she came to her parent's house at about 7.30 p.m.; Ullu Raju, Bachcha Raju and Kamal were abusing them. It is in his evidence that the accused persons abused Bablu Bhai and asked as to why he did not pay money to them; Bablu got down from the roof and the remaining brothers also followed him. She has stated that from the roof she noticed that altercation was going on between Asgar and those persons and Ullu Raju and Bachcha Raju brought out revolvers and then caught hold of the shirt of Bablu and dragged him towards Collins Street. She has stated that she got down from the roof and heard sound of firing; the neighbouring people came and Md. Asgar was taken to Medical College. 7
9. P.W. 9 has stated that Husnara (P.W. 8) is her younger sister; on 12.11.2001 at about 7.30 P.M. she was in her parent's house and at that point of time they heard abusive language from the roof aiming at brother Bablu. She has stated that Ullu Raju, Bachcha Raju and Kamal were in the roof and they abused Bablu for not paying the money to them against their demand; Ullu Raju, Bachcha Raju and Kamal asked Asgar to come down from the roof for having discussion and then Bablu got down from the roof followed by other brothers. She has stated that at that time all of them were in the roof; the accused persons abused Asgar and threatened to kill him. It is in her evidence that accused persons then dragged Asgar towards the Collins Street and after getting down from the roof she heard sound of firing; Md. Akbar and other people told that Ullu Raju fired at Bablu; Bachcha Raju and Kamal were armed with revolvers. The injured was taken to the hospital.
10. P.W. 10 is the wife of the deceased. She has stated that on 12.11.2001 at about 7.30 P.M. her husband was taking tea and they heard that Ullu Raju, Bachcha Raju and Kamal were abusing Bablu and asked Bablu as to why he did not pay money to them. It is in her evidence that those persons asked her husband to come down and thereafter the accused persons got down from the roof and her husband followed them; the other brothers also followed Asgar. It is in her evidence that all those persons dragged her husband towards Collins Street and on seeing the same from the roof she, 8 her sisters-in-law were coming down stairs and heard the sound of firing. It is in her evidence that her husband sustained bullet injuries.
11. P.W. 13 is the van rickshaw puller who has stated that he came to Bablu Bhai for collecting his remuneration on the date of incident at about 7.30 p.m. It is in his evidence that when he reached the residence of Bablu, three boys came to the shop of Bablu Bhai and asked the whereabouts of Bablu; those persons then went upstairs and abused Bablu asking him as to why he did not pay money according to their demand; thereafter all those three boys got down from the floor and reached in front of the said house where one Bombaiya was standing; those persons assaulted Bombaiya; hearing the sound of assault upon Bombaiya, Bablu rushed to the spot and all those three persons caught hold of Bablu and he was dragged to the electric feeder box; Ullu Raju fired aiming at the forehead of Bablu; Bablu fell down and those persons fled away.
12. This is the ocular version as stated by the P.Ws. noted above. Ms. Gomes submits that P.W. 13 is the only disinterested witness and other witnesses are all related to the family of the victim. Ms. Gomes submits that the evidence of those witnesses at the time of trial differed substantially from their earlier statements made to the I.O. under Section 161 Cr.P.C. Ms. Gomes wants us to believe that because of such contradiction between the earlier statement and the evidence at the time of trial, their testimony cannot be relied upon. On this point the learned Trial Judge elaborately discussed and held that the contradictions were not specifically put to 9 those witnesses at the time of their cross-examination. On perusal of the evidence of those witnesses we find that in the cross-examination of those witnesses the contradictions were not taken on material particulars. On perusal of the entire evidence of P.W. 7, P.W. 8, P.W. 9 and P.W. 10 we are of the considered view that, although, they are related to the family of the victim, their testimony cannot be disbelieved on that score. From their evidence it is clear that the accused persons conjointly came to the house of the victim when the members of the family of victim were present. Those family members have been examined as P.W. 7 to P.W. 9 and P.W. 10. They are the vital witnesses and their testimony is convincing. Nothing has been elicited in the cross-examination of those P.Ws. which would cast any shadow of doubt on the veracity of their testimony. These witnesses saw the incident from the very genesis of the occurrence till the infliction of gunshot injury. Their testimony is unimpeachable.
13. As to the evidence of P.W. 13, although, there are some minor contradictions with the earlier statements made before the I.O., this witness is the disinterested witness and his testimony is very natural. He is a rickshaw van puller by profession and he used to collect his wages from the victim. From his evidence it is clear that he was very much present at the time of occurrence and his testimony is worthy of credence. From the evidence of the P.Ws., as discussed above, it is clear that the appellant Bachcha Raju was one of the miscreants present at the time of occurrence.
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14. As to the charge under Section 34 I.P.C. it is clear that this appellant with other two accused persons demanded money from the victim and told him to come to the ground and after the victim came downstairs, they dragged him towards the electric feeder box and then Ullu Raju fired from the revolver aiming at his forehead. Since all the three persons came together, abused Asgar and threatened him with dire consequences for his failure to make payment of money and the overt acts on the part of the appellant being clear, we are of the considered view that there were prior meeting of minds and pre-arranged plan. The charge under Section 34 I.P.C., therefore, comes into play under such circumstances of the case.
15. P.W. 12 is the ballistic expert who examined the firearm and opined as follows:-
"On examination the bullet marked - 'D' was found to be a bullet used in a .315"/8mm sporting rifle ammunition from its weight dimensional and constructional features. Nature of marks present on it indicated that it was fired through an improvised firearm capable of firing .315/8 mm sporting rifle ammunition......"
The bullet was produced before him at the time of trial and it was marked Mat. Ext. - II.
16. P.W. 14 is the Autopsy Surgeon who held post mortem examination over the dead body of Md. Asgar. He noted the following injuries:- 11
"1. One stitched up wound with 4 black stitches 0.6" long over the right side forehead, 2" above the medial end of right eye-brow and ½" right to midline. On removal of stitches it was found to have abraded, contused lacerated blackend and burnt out margin, measuring 0.6" X 0.4".
On further dissection it was found to have pierced the skin subcutaneous tissues underlined muscles and passed through the right side of frontal bone ½" right to midline producing a hole of 0.6" X 0.4" with punched in margin on the external table and levelled margin on the inner table then have passed through the margin to enter into the right frontal lobe brain passed through and through the right cerebral hemisphere placed parallel to and ½"
away from midline to finally come out through the right occipital lobe of brain and over line meninges then piercing the overlined occipital bone on the right side by producing and elevated comminuted fracture 0.8" X 0.6"
with the fissure fracture 4" long radiating upwards and forwards upto the right parietal bone from where a partly deformed metalic bullet 1" in length found lying with the tip lying in the overlined occipital region of the scalp. The metallic bullet was recovered collected and duly preserved and handed over to the accompanying police constable for sending it to the Chemical Examiner through the local P.S. The direction of the gunshot injury was from before backwards and slightly downwards. The injury showed evidences of vital reaction. The margins of the gunshot wound of entrance showed red in colour.
2. One abrasion 1" X ½" over right side of forehead 1½"
right to midline ½" right above the right eye-brow.12
3. One abrasion 1½" X 1" over right side of face, 1½" below the right lower eye-lid and 3" right to midline. The injuries showed evidences of vital reaction. The abrasions were red in colour and not scabbed. No other injury either revealed or concealed could be detected even after careful dissection and examination even under a hand lens.
Death in my opinion was due to the effects of gunshot injury as noted above ante-mortem and homicidal in nature."
The doctor has also opined that the injury as noted were sufficient to cause death in ordinary course of nature. He has also stated that the gunshot injury as noted above was caused by a firearm from a distance of about 4". The bullet which was extracted from the body of the victim and already marked Mat. Ext. - II was shown to the doctor and he answered that it might be the bullet which was recovered from the body of the victim. The ocular version of gunshot injury finds corroboration from the medical evidence. There is, therefore, no doubt as to the prosecution case of firing from the firearms and the active presence and overt acts of this appellant along with the others.
17. Ms. Gomes submits that since Gabbar was acquitted, the present appellant is entitled to get benefit of doubt. We are unable to accept such contention of Ms. Gomes. Learned Trial Judge acquitted Gabbar because of the absence of evidence against him. So far as the present appellant is concerned, we find that there is convincing and unimpeachable evidence 13 against the present appellant. The non-examination of Bombaiya cannot be said to have raised any sort of doubt in regard to the veracity of the prosecution case.
18. On perusal of the evidence on record and after giving anxious consideration to the submission made by Ms. Gomes and Mr. Ghosal, we are of the considered view that the learned Trial Judge was justified in convicting the appellant and sentencing him to suffer the imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer S.I. further period of six months. There is no ground to interfere with the findings of the learned Trial Judge. The impugned judgment is hereby affirmed. There is no merit in this appeal and the same stands dismissed.
19. Let a copy of this judgment be sent to the concerned Correctional Home where the appellant is now serving out sentence.
20. Let a copy of this judgment along with the L.C.R. also be sent down to the learned Court below immediately.
21. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. ) Ashim Kumar Banerjee, J.
I agree, (Ashim Kumar Banerjee, J. ) 14