Calcutta High Court (Appellete Side)
Badal Das vs The State Of West Bengal on 6 August, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan, Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
&
The Hon'ble Justice Jay Sengupta
CRA 30 of 2003
Badal Das
Vs.
The State of West Bengal
For the appellant : Mr. Prabir Majumder
Mrs. Rupa Bandopadhyay
Mr. Sujoy Sarkar
Mr. S. Majumder
For the State : Mr. A. K. Maity
Mr. Sanjoy Bardhan
Ms. Rita Dutta
Heard on : 03.05.2018
Judgment on : 06.08.2018
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated July 10, 2002 passed by the learned Additional Sessions Judge, 1st Court, Burdwan in Sessions Trial No. 12 of 2000 arising out of Sessions Case No. 102 of 1994. By the impugned judgment appellant was convicted for committing offences punishable under Section 302/307 of the Indian Penal Code (hereinafter referred to as IPC) and was sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2000/- in default to suffer rigorous imprisonment for the period of two months for the offence under Section 302 IPC and also to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for a further period of one month for the offence under Section 307 of IPC with a direction that both the sentences shall run concurrently.
The case of the prosecution, briefly stated, is as follows:
On February 4, 1990 at about 8/8.30 p.m. appellant's father namely the victim returned back home from outside. Appellant who was inside his room getting sound of his father came out from his room with a 'Bagi da' (chopper) and started threatening his father using abusive languages. P.W.5, victim's daughter, who was sitting in the varanda to serve food to her father, seeing furious attitude of her brother and being afraid of, rushed to the road to call people and while going out she heard the screams of her father saying 'killed me', 'killed me'. On hearing her cries para people rushed there but by that time the appellant had already killed the victim. After killing the victim appellant went to his uncle Dukhiram Das's house which is adjacent to their house and there he attacked Jhaku Das, Labibala Dasi and Jyotsna Das who were sleeping in the veranda of the house with that 'da' and Labani Sardar, the neighbour, who came there rushing causing severe bleeding injuries on their persons. Appellant was apprehended by the villagers when he tried to flew away.
P.W.7 informed the incident over phone to the Officer-in-charge, Katwa P.S. (P.W.22). After diarizing the said information (Ext.8), P.W.22 directed P.W.19 and P.W.25 to look into the matter. P.W.19 and P.W.25 then proceeded to the place of occurrence along with force and on reaching there they found the dead body of the victim lying in his courtyard. P.W.25 recorded the statement of P.W.5, the daughter of the deceased, and forwarded the same to Katwa P.S. for registering a case and took up charge of investigation.
P.W.22, on receipt of the said statement of P.W.5, started Katwa P.S. case No. 55 dated February 5, 1990 under section 302/326/ 307/ 448 IPC against the appellant.
On the same day at 11 P.M. P.W.19 held inquest over the dead body of the victim in presence of the witnesses and prepared a report (Ext.4). He, thereafter, sent the dead body for postmortem examination to Sub-divisional hospital, Katwa. He also held inquest over one amputed finger of Rabi Dasi and prepared a report (Ext.3/1). The name of the appellant surfaced during inquest.
On February 5, 1990 at 13.00 hrs., P.W.20 conducted postmortem examination over the dead body of the victim at Sub-divisional hospital, Katwa and prepared P.M. report (Ext.6). During postmortem examination the doctor (P.W.20) found one incised wound upper anterior neck superficial on right side and deep to the base of the skull on left side starting from right ample of mandible to the left mastoid process dividing trachea esophagus left carotid vessels and muscles 7'' X 2½'' and opined that the death was caused due to shock and hemorrhage from the above mentioned injuries which was ante mortem and homicidal in nature. According to him, those incised wounds might be caused by sharp cutting weapon like "Ramda".
On February 5, 1990, P.W.20 also examined the injured Labibala Dasi, Jyotsna Dasi, Labani Sarkar and Jhaku Dasi who were admitted in that hospital on February 4, 1990 and found several incised wounds on their persons and prepared injury reports ( Ext 7 series). He also examined the amputated finger of Labibala Dasi.
P.W.25 at first investigated the case and thereafter on his transfer it was investigated by P.W.26 and finally by P.W.28 who then on completion of investigation submitted charge sheet being No. 90/92 dated September 15, 1992 under Section 448/326 /307/ 302 IPC against the appellant.
On April 25, 1997 charges under Section 302/307 IPC was framed against the appellant and on his pleading not guilty, trial commenced.
In order to prove the case, prosecution examined 28 witnesses and also produced and proved certain documents namely FIR, inquest report, dead body chalan, PM report, copy of the G.D.E., rough sketch map with index etc. and thereafter on completion of trial and after examination of the appellant under Section 313 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), learned trial judge passed the impugned judgment.
Mr. Prabir Majumder, learned advocate appearing for the appellant submitted that the offence under section 302 IPC was not proved beyond doubt as there was not a single eye witness to the crime of causing death to the victim. According to him non-production of the weapon of offence during trial though seized makes the prosecution case doubtful in so far as the causing of death of the victim is concerned. He also submitted that appellant is in custody since the date of arrest and at present he is aged about 66 years old and as such a lenient view may be taken against him.
Mr. A.K. Maity, learned advocate appearing for the State, submitted that P.W.5, daughter of the victim saw the appellant in aggressive mood armed with 'da' threatening and abusing the victim and seeing such attitude of the appellant and being frightened she rushed to call para people and while going out of the house she heard screams of her father saying 'killed me', 'killed me' and immediately thereafter when she returned back with the para people she saw the dead body of her father and this fact was also corroborated by other witnesses. He further submitted that immediately after killing the victim appellant went to the nearby house of his uncle and there also he attacked the female folks with the said 'da' the cause grievous injuries on their person and he was ultimately apprehended by the para people. According to Mr. Maity, appellant was last seen together with the victim in aggressive mood with a 'da' abusing and threatening the victim and the circumstances emanating from the evidence on record lead to the conclusion that it was the appellant who killed the victim and attempted to kill those ladies with the said 'da' thereby causing grievous injuries of their person which according to the doctor (P.W.23) can cause harm endangering human life.
We have considered the submissions advanced by learned counsels appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses and the materials on record for examining the propriety of the impugned judgement.
On scrutiny of the evidence of prosecution witnesses together with the evidence of the autopsy surgeon(P.W. 20) and the PM report (Ext. 6) it was evident that during post mortem examination over the dead body of the victim Dibakar Das on February 5, 1990, the doctor found one incised wound upper anterior neck superficial on right side and deep to the base of the skull on left side starting from right ample of mandible to the left mastoid process dividing trachea esophagus left carotid vessels and muscles 7'' X 2½'' and opined that the death was caused due to shock and hemorrhage from the above mentioned injuries which was ante mortem and homicidal in nature. According to the doctor, the said incised wounds might be caused by sharp cutting weapon like "Ramda". This was not disputed or denied by the defence by putting any suggestion to this witness. His evidence remained unshaken.
From the evidence of P.W.23, the doctor, it also appears that on February 4, 1990 he examined one Labibala Dasi (P.W.11), Jyotsna Dasi (P.W.12), Labani Sardar (P.W.13) and Jhaku Dasi (P.W.16) at Sub- divisional Hospital, Katwa and found incised wounds on their persons and they were admitted in that hospital as indoor patients.
On examination of Labibala Dasi he found recent incised wound over the vertex across left eye, brain matter exposed and opined that it was grievous injury caused by a sharp cutting weapon.
On examination of Jhaku Dasi he found one recent incised wound present over left side of face extending up to left parietal region and opined that injury was grievous caused by a sharp cutting weapon. On examination of Jyotsna Dasi he found recent incised injury present over left tempero-parietal region of size 4'' X 1'' X bone deep; left arm almost severed just below shoulder joint and also incised wound present over left shoulder of size 3''X1''X bone deep and opined that injury was grievous caused by sharp cutting weapon.
On examination of Labani Sardar he found recent incised wound present over right forearm of size 3½''X1½''X bone deep, incised wound present over left maxillary region of size 4½''X2''X bone deep along side margin of left eye, incised wound present over scalp starting from forehead expending upto occipital region inflicting deep wound marking on occipital region and opined that injury was grievous caused by sharp cutting weapon. After examination of those patients he prepared injury reports (Exts.10 series).
According to P.W.23, the doctor, those injuries found on the persons of the injured can cause death. This was not disputed or denied by the defence by putting any suggestion to the doctor. Defence by putting suggestion to doctor only tried to prove that history of assault and the name of the assailants were not noted in their respective injury reports to which he clearly stated that at the time of their treatment his primary duty was to save the lives of the victims.
From the evidence of P.W.20, it appears that on February 5, 1990 he too examined Labibala Dasi (P.W.11), Jyotsna Dasi (P.W.12), Labani Sardar (P.W.13) and Jhaku Dasi (P.W.16) who were admitted in Sub- divisional Hospital, Katwa and found incised wounds on their persons.
On examination of Labibala Dasi he found her unconscious, pregnant of six months and having convulsion on right half of body and she had incised wound on left of face diving mandible, lips, medial canthus of left eye and over to skull dividing bone and exposing brain and the side of sound was about ¼''X1''X Deep, traumatic amputation of left index finger through P.I.P. joint, incised wound 1''X ½'' on left middle finger, incised wound ½'' X 1/8'' on left ring finger, incised wound 1'' X ½'' X flexor/tendon divided right index finger, incised wound on right breast 3'' X 1'' X muscle deep and opined that all these injuries were cause by sharp cutting weapon like "Ramda".
He also examined one amputated finger brought by constable No. 1058 of Katwa P.S. and on examination he found the colour of nail polish akin to the colour of nail polish of other nails of Lailabala Dasi and opined that the amputated finger piece to be the lost amputated portion of left index finger of Lailabala Dasi.
On examination of Jyotsna Dasi he found one incised wound on left arm 3'' below shoulder joint-almost total division of arm except thin bridge or skin - ½'' base and multiple chopping on the left upper extremity, almost auto amputation of left arm, one incised wound top of left shoulder dividing clavicle 5'' X 1½'' X bone and muscle deep, one incised wound - left leg 2''X1''X muscle deep, other bones were repaired and the patient was admitted upto February 15, 1990 in the hospital and in his opinion injuries were grievous in nature and were caused by heavy sharp-cutting weapon like "Ramda".
On examination of Labani Sardar he found one incised wound on fault of scalp - 5''X1''X skull bone exposed, incised wound on fault of scalp 5''X1''X skull bone exposed, incised wound lateral side of left orbit dividing mailer bone and superior orbital margin, incised wound on right fore-arm 3''X1''X muscle divided and bone divided with extensor loss and repairs were done, X-rays were done on right fore-arm and she had a fracture of right radius and she was discharged on February 16, 1990 after plastering. According to him these injuries were grievous in nature and caused by sharp-cutting heavy weapon.
On examination of Jhaku Dasi he found incised wound 8''X1''X bone deep extending from left ear to left fronto parietal scalp dividing left ear cartilage and she was discharged on February 13, 1990 and in his opinion the wounds were simple.
According to the doctor (P.W.23) those injuries were endangering to the human life and could cause death.
With regard to the injuries sustained by the victim Dibakar Das resulting in his death and the injuries on the persons of Labibala Dasi (P.W.11), Jyotsna Dasi (P.W.12), Labani Sardar (P.W.13), and Jhaku Dasi (P.W.16) resulting in their hospitalization it is the specific allegation of the prosecution that the appellant being armed with 'da' after heated altercation struck the victim by that 'da' on his neck killing him on the spot and thereafter went to his uncle's house adjacent to his house and attacked Jhaku Dasi, Labibala Dasi and Jyotsna Dasi who were sleeping on the veranda and Labani Sardar, a neighbour who came there rushing after hearing the cries and when he tried to flee away he was apprehended by the villagers.
Learned court below after over all assessment of the evidence of the prosecution witnesses and the documents on record arrived at the conclusion that the prosecution had been successful to bring home the charge under sections 302/307 of the Indian Penal Code against the appellant and passed the impugned judgment.
P.W.5, daughter of the deceased and sister of the appellant, is the complainant of this case. From the evidence adduced on oath by this witness, we find that she has fully corroborated the FIR and the allegations made therein against the appellant. She has given vivid and consistent account of entire incident and clearly spoken about participation of the appellant in attacking the deceased as also P.W.11, P.W.12, P.W.13 and P.W.16 at their house. It is true that she did not see the appellant kill her father and assault on those injured ladies as she had rushed to call para people seeing the aggressive mood of the appellant threatening her father with a 'da' and being frightened but immediately thereafter when she returned back with the para people she saw the dead body of her father lying on the ground in the courtyard and saw those injured ladies and also saw appellant was caught by para people and was tied with rope. She was cross-examined by the defence at length but her evidence remained unshaken and nothing came contrary to her statements-in-chief which could lead to disbelieve her. Defence failed to impeach her credibility.
P.W.11, the injured Labibala Dasi, has specifically stated that on the relevant date and time while she and her sister-in-law Jyotsna Dasi were sitting in the veranda then at that time appellant came and struck Jyotsna with a Ramda cutting her ear and also assaulted her with that Ramda causing bleeding injuries on her head, face and breast and index finger of her right hand was severed as she was trying to save herself from that assault. The above statement of P.W.11 also find corroboration from the injured P.W.12 and P.W. 16. They too have clearly deposed that on the relevant date and time while they were sitting in the veranda and gossiping then the appellant came there and assaulted them by da causing bleeding injuries on their person. P.W.13, another injured, has also deposed that on the relevant date and time while she was going out of the house to attend nature's call then hearing shouting when she went there, appellant assaulted her with a da as a result she sustained bleeding injuries on her head and hand for which she had to be hospitalized and in the hospital she heard that Jhaku, Jyotsna and Labi were also assaulted by the appellant with that da for which they were also admitted in the hospital along with her. They have clearly stated that they narrated the incident to para people who gathered there and to the police.
Thus, we find the testimonies of the above witnesses are consistent and have clearly spoken about attack of the appellant on them by a 'da' causing severe injuries on their person resulting in their hospitalisation. They have established the presence and participation of the appellant in the crime. They also identified the appellant in course of recording of their evidence before court. They were cross-examined at length by the defence but nothing has been elicited in the cross-examination to discredit their version. They are the close relatives and they have stood firm despite incisive cross-examination. Their evidence appears to be trustworthy and reliable. The medical evidences have gone further to strengthen their testimonies. In such circumstances, there appears no reason to discard their evidence.
In the matter of Jodhan vs. State of M.P. reported in 2015 AIR (SCW) 3589, it has been held by the Hon'ble Apex Court that the testimony of injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. The injured witness has been conferred special status in law and the injury sustained by him is an inbuilt-guarantee of his presence at the place of occurrence and is unlikely to spare his actual assailants in order to falsely implicate someone.
Therefore, tested on the backdrop of the aforesaid enunciation of law, we are unable disbelieve the evidence of above injured prosecution witnesses.
P.W.3, grandmother of the injured Jyotsna, has also deposed that appellant beheaded his father and thereafter went to the house of his uncle Dukhiram where he attacked Dukhiram's daughter-in-law Rabibala Dasi and daughter Jhaku Dasi and thereafter assaulted Jyotsna with a da and she heard the said incident from the injured persons. She also saw the arm in the hand of the appellant who was caught and tied by the villagers. Her evidence also remained unshaken during cross-examination and as such there was no reason to disbelieve her.
P.W.1, P.W.2, P.W.4, P.W.8, P.W.10, P.W.14, P.W.15 and P.W.17 are the post occurrence witnesses. They went to the place of occurrence immediately after the occurrence on hearing halla and saw the victim Dibakar Das lying dead with severed neck and the bleeding injuries on those ladies and heard from the injured ladies that appellant attacked his father with da causing his death and thereafter, attacked them with that 'da' causing injuries on them.
PW 1 has deposed that on the relevant date and time he was sitting in a tea stall near the place of occurrence and on hearing "halla" he went there and saw the beheaded body of the of Dibakar Das, father of the appellant and also saw bleeding injuries on the head of one woman and bleeding injury on the face of another woman and the injured minor girl told him that the appellant inflicted those injuries with a "bagi" and beheaded his father with the said "bagi". He also came to know from people assembled there that the appellant committed murder of his father and caused injuries on those women. The said "bagi" was seized by the Police Officer in his presence.
PW 2 has deposed that on being called by PW 5, he went to their house and saw the appellant standing with a "khanra" in his hand and his father's beheaded body was lying there in a pool of blood. He also found one woman having serious injuries on her face, one girl in injured condition and her ear was separated from her body and the hand of another injured girl Jotsna was separated from her body. Those injured persons then told him that the appellant caused those injuries on their person. Appellant was then caught by the Para people and tied with a rope.
PW 4 has deposed that on hearing hue and cry he went to the place of occurrence and found that Jyotsna lay fallen behind their house. She then told him that appellant assaulted her with a weapon and severed her hand from her body. He also saw the ear of Jhaku was separated from her body and she also told him that the appellant caused that injury. He also saw sharp cut injury on the lower hand of Labi whose one finger was separated from her hand. He also saw the beheaded body of the victim lying in the courtyard of his house and appellant was tied by the people. He identified the appellant in course of his examination before the Court.
PW8 has deposed that on hearing hue and cry he went to the house of appellant and saw the dead body of his father lying there. He also found three/four women with bleeding injuries on their person of whom one was the daughter of Dukhiram whose ear was detached from her body, another one daughter-in-law of Dukhiram who sustained bleeding injury on her face. He also saw Labani Sardar and daughter of Biswanath in injured conditions. Thereafter, police came at the place of occurrence and apprehended the appellant and seized a "ramda" in his presence under a seizure list (Ext- 1) on which he signed.
PW 10 has deposed that PW5 came shouting "Kate fello mere fello"
and accordingly he went to the house of the appellant who was brandishing a "ramda" in his hand. He also saw Labani sustained injuries on her head and hand and Labibala Dasi had injuries on her face, bleeding injury on the ear of daughter of Dukhiram and bleeding injuries on the hand of the Daughter of Bisu Das and dead body of the father of the appellant. Those injured women told him that appellant assaulted them with the said "ramda".
PW 14 has deposed that on hearing "hoi choi" coming out from the house of the appellant, he went there and saw his father lying dead. He thereafter went to the house of Dukhiram and saw Rabi, Labani, Jhaku and Jotsna lying injured. They then told him that the appellant inflicted such injuries upon them by the "ramda". He also found appellant was tied with rope by para people.
PW 15 has deposed that on hearing "hoi choi" from the house of the appellant, he went there and saw his father lying dead having injuries and also his wife Labi Das, sister Jhaku Das and niece Jyotsna Das and Labani Sardar in injured condition. They then told him that appellant caused those injuries on their person.
PW 17 has deposed that her house is adjacent to the house of Dukhiram and at the relevant time her sister Jyotsna was talking with Jhaku and Labi Dasi in the house of Dukhiram. Thereafter, her sister came and reported that she was assaulted. She then went to the house of Dukhiuram and saw the injuried persons. She thereafter went to the house of the deceased Dibakar Das and saw his dead body lying in his house. She also saw the appellant there. She heard from Jyotsna that the appellant assaulted them. She then took her sister to hospital. P.W.7, gram panchayet member who informed police the incident over phone, deposed that on the relevant night he heard shouting from Daspara of his village and then informed police over phone. Thereafter, police came and in his presence P.W.5 narrated the incident to the police. He also saw the appellant tied at the place of occurrence and the dead body of the victim Dibakar Das was lying there.
The above witnesses who have deposed against the appellant are the para people and co-villagers. Their presence at the place of occurrence on the relevant night can not be doubted, their version is consistent and nothing has been elicited in their cross-examination to shake their credibility. There are some minor and trivial discrepancies, but they really do not create a dent in their evidence warranting to treat the same as improbable and untrustworthy.
In the matter of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon'ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The relevant portion of the above decision is quoted below:-
"49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused."
In the matter of State of U.P. vs. M. K. Anthony, reported in (1985) 1 SCC 505 it has been observed by the Hon'ble Apex Court that in examining the truthfulness of the evidence, the Appellate Court will have to attach due weightage to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. The relevant portion of the above decision is quoted below: -
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trival matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
(Emphasis supplied) Thus, we find from the evidence on record that appellant belong to the same family and just before the incident he was seen by his sister(P.W.5) with a da coming out from his room in an aggressive mood abusing and threatening his father just when he entered the house from outside and seeing his such furious attitude and being frightened she rushed to call para people and while leaving the house she heard screaming of her father and immediately thereafter when she returned back found her father lying dead having severed neck and also found P.W.11, P.W.12, P.W.13 and P.W.16 severely injured and appellant was detained by para people. The above injured ladies have also vividly narrated the active participation of the appellant and causing injuries on their person by him. The medical evidences strengthened their testimonies. They narrated the incident to the relatives and the villagers assembled there. This also found corroboration from the villagers and the relatives who deposed as prosecution witnesses.
Appellant was last seen together with the victim by P.W.1 in an aggressive mood with da threating the victim/father as soon as came house from outside and the time gap between last seen together and the death of the victim rules out presence of any outside person at the scene of the crime. The name of the appellant even surfaced both in the FIR and the inquest report made on the very night. P.W.5 has deposed against her own brother and nothing was brought on record to show any such ill feeling or enmity between them. Even during examination under section 313 Cr.P.C., save and except the plea of ignorance, no such plea of false implication was taken by the appellant nor he gave any such explanation with regard to the death of his own father in his own house due to severe cut injuries on his neck.
Admittedly, the weapon of offence was not produced during trial nor any FSL report. According to P.W.25, I.O., he seized the weapon of offence, blood stained earth, controlled earth, wearing apparels of the victims etc. and sent those articles to FSL for examination but could not collect the report due to his transfer. According to P.W.26, case was endorsed to him for further investigation and he gave reminder to the Director of FSL for the report but he could not collect the same during his tenure. P.W.28 who submitted charge sheet did not make any effort to collect the FSL report. These are lapses on the part of the investigating officer. It is evident from the evidence of P.W.28, that the weapon of offence 'Ramda' was destroyed due to explosion at the P.S. on July 27, 1996 and a Katwa P.S. GDE no.1553 was recorded. So there was no scope of production of weapon of offence. Be that as it may, failure to produce weapon of offence or the FSL report is not fatal for the prosecution case when the prosecution case is otherwise proved based on the testimony of the independent eye witnesses. It is settled law that in a case where the prosecution case is fully established by the direct testimony of the eyewitness, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief.
In the present case the complainant and all the injured eye witnesses have described the da as the weapon used in the commission of the offence causing severe cut and bleeding injuries on the person of the injured and death of the victim Dibakar Das and the wounds noticed by the doctor, P.W.20, and his opinion about the types of weapon which can cause such type of injuries also throw a considerable light on this aspect. Thus, we find that prosecution case was fully established by the direct testimony of the injured eye witness as also post occurrence witnesses, which also found corroboration from medical evidence.
Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment does not require our interference on the above grounds in view of the settled proposition of law as discussed herein above.
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellant.
A copy of this judgment along with the Lower Court Records may be sent down to the learned Trial Court forthwith.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.) I agree (Jay Sengupta, J.)