Calcutta High Court (Appellete Side)
Mohim Sk. & Ors vs The State Of West Bengal on 21 May, 2019
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan, Jay Sengupta
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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 363 of 2011
Mohim Sk. & Ors.
Vs.
The State of West Bengal
With
CRA 384 of 2011
Ejjul Sk.
Vs.
The State of West Bengal
For the appellant nos. 1 & 2 : Mr. Milon Mukherjee, Sr. Adv.
in CRA No. 363 of 2011 Mr. Usof Ali Dewan
Mr. Asif Dewan
For the appellant Nos. 3 & 4 : Mr. Kazi Safiullah, Sr. Adv.
in CRA No. 363 of 2011)
For the Appellant : Mr. Milon Mukherjee, Sr. Adv.
in CRA 384 of 2011 Mr. Manowar Ali
For the State : Mr. Arun Kumar Maity
in both the appeals Ms. Kakali Chatterjee
Heard finally on : 07.03.2019
Judgment on : 21.05.2019
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Md. Mumtaz Khan, J. :
These appeals have been preferred by the appellants assailing the judgment and order of conviction and sentence dated June 18, 2011 and June 22, 2011 respectively passed by the learned Additional District and Sessions Judge, Fast Track, 2nd Court, Malda in Sessions Case No. 75 of 2006. By the impugned judgment appellants were convicted for commission of offence punishable under Section 302/34 of the Indian Penal Code (hereinafter referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/- each in default to suffer further rigorous imprisonment for one month each with a direction for set off as per provisions of Section 328 of the Code of Criminal Procedure (hereinafter referred to as CrPC) while accused Kuddus Sk. was found not guilty of the offence under Section 302/34 IPC and was, therefore, acquitted from the charge.
Prosecution case, in brief, is that on November 11, 1999 at about 6.30 p.m. while the deceased Ajlu Sk. and P.W.9 were gossiping, sitting on the road in front of the house of the Sejar Sk. of their village, then at that time accused/appellants and Kuddush Sk under the leadership of Lokman Sk. being armed with hasua, farsha etc and with an intention to kill Ajlu Sk. attacked him and struck him by hasua thereby causing grievous injuries on his person. Hearing the screaming of Ajlu Sk. and his companion when many people rushed to the spot accused persons fled away therefrom. P.W.6, on getting the news of the said incident 3 rushed to the spot and seeing his brother's serious condition sent him to Malda Sadar hospital for treatment and lodged the complaint (Ext.2) at the Kaliachak P.S. On the basis of that complaint received at the P.S. at 12.15 hrs. P.W.18 started Kaliachak P.S. Case No. 290 dated November 11, 1999 against the accused/appellants, Lokman Sk. and Kuddus under Sections 324/326/307/34 IPC and the case was endorsed to P.W.14 for investigation. Subsequently, section 302 IPC was added to the charges after the death of the victim Ajlu Sk.
Inquest over the dead body of the victim was held on November 12, 1999 at 12.05 hours at Malda Sadar Hospital in connection with English Bazar P.S. UD Case No. 490 dated November 12, 1999 by Sailesh Chandra Sarkar, a police officer of English Bazar P.S. and during inquest he found deep injuries of different dimensions on the head, neck, back, wrist, leg and other parts of the body caused by a sharp weapon. After inquest he prepared a report (Ext.1).
On the same day at around 1.50 p.m. P.W.10 held postmortem examination over the dead body of the deceased Ajlu Sk. and during examination he found several injuries namely --- i) incised wound enterio posterior 3'' x 3/4'' x brain deep at left side of frontal region of scalp, ii) incised wound oblique 2''/1/2'' x brain deep at left parital region of scalp, iii)incised wound oblique 1 1/2'' x 1/2'' brain deep at left parital region of scalp, iv) incised wound oblique 1 1/2'' x 1/2'' muscle deep at left cheek, v) incised 4 wound oblique 1 1/2'' x 1/2'' bone deep at left shoulder cutting scapula partly,
vi) incised wound oblique 2'' x 1/2'' bone deep at left upper back cutting scapula partly, vii) incised wound oblique 1/2'' x 1/2'' skin deep at left shoulder, viii) incised wound oblique 2'' x 1'' bone deep at posterio medical aspect of left wrist cutting lower part of ulna completely, ix) incised wound oblique 6'' x 1 1/2'' muscle deep at left grutial region, x) incised wound oblique 2 1/2'' x 1/2'' x muscle deep at right grutial region and xi) incised wound oblique 4'' x 2'' x muscle deep at posterio aspect of right knee. On dissection of body he found internal organs pale and opined that death was due to the effects of the above injuries which were ante mortem and homicidal in nature and such type of injuries may be caused by a hasua.
P.W.14 thereafter on completion of investigation submitted charge sheet against the accused/appellants, Lokman Sk. and Kuddus Sk. under Section 302/34 IPC vide charge sheet no. 86 of 2000 dated March 31, 2000.
On March 21, 2009 charges under Section 149/302 IPC was framed against the accused/appellants, Lokman Sk. and Kuddus Sk. and on their pleading not guilty to the charges, trial commenced. Prosecution in order to prove it's case examined as many as 14 witnesses and also produced and proved the written complaint, formal FIR, rough sketch map with index, inquest report, PM report etc. During trial accused Lokman Sk. died while trial proceeded against the rests. 5 Thereafter, on completion of trial after examination of the appellants and Kuddus Sk. learned trial judge passed the impugned judgment.
Mr. Kazi Safiulla, learned senior counsel appearing for the appellant Nos. 3 and 4 in CRA 363 of 2011, submitted that the impugned judgment, order of conviction and sentence are not sustainable in law due to failure to establish the place of occurrence as no blood stained earth from the place of occurrence was seized and sent to the FSL to ascertain the place of occurrence. According to FIR, incident took place in front of the house of the Sejar Sk. whereas rough sketch map shows the place of occurrence to be the village road and there is no whisper about the house of Sejar Sk. and even in the charge form the place of occurrence has been described as the house of Adhir Sk. He further submitted that there was delay of four days in sending the FIR to court which casts doubt with regard to lodging of the FIR on the very date of the incident. The veracity of the FIR is also questionable as the same was written at the P.S. and the FIR maker (P.W.6) even could not say the name of the scribe. Name of the appellants did not surface during inquest which was held after lodging the FIR naming the appellants, though the same was held in presence of relatives of the victim. Identification of the appellants at the place of occurrence was doubtful as the month and time of the alleged incident indicate that there was darkness and there is no such whisper with regard to the source of light nor any source of light was seized. Doubts existed with regard to the 6 witnessing of the incident by P.W.3, P.W.4 and P.W.5 as also with regard to the dying declaration, taking into account the head injury of the victim. Contradictions were there with regard to the presence of the witnesses at the time of alleged dying declaration. All the witnesses are related witnesses and as such their evidence can not be relied on especially when there was criminal case and enmity between the parties and therefore, a chance of false implication. The name of accused Kuddus was all along present in the FIR and in the evidence of P.W.6. But, the FIR accused Kuddus Sk. was given benefit of doubt though no such benefit was given to the appellants nor any explanation was given for the same.
Mr. Milon Mukherjee, learned senior advocate appearing for the appellant Nos. 1 and 2 in CRA 363 of 2011 and the sole appellant in CRA 384 of 2011 also submitted that the judgment, order of conviction and sentence are not sustainable in law as the place of occurrence has not been established, FIR was not proved in accordance with law, no name of scribe nor any endorsement to the effect that the contents were read over and explained to the maker of FIR were present, there was delay in sending the FIR, only interested and related witnesses have been examined, no blood stained earth or blood stained clothes were seized and sent to FSL to fix the place of occurrence, GDE in question mentioned in the FIR was not produced, there was a doubt with regard to the identification of the appellants, there was not a single witness prior 7 to the commission of the act or assembly of persons armed with deadly weapons, examination under Section 313 Cr.P.C. was not done properly and same questions were put to all the accused persons which were contrary to the charge and the evidence on record, no weapon of offence was seized. According to Mr. Mukherjee, if the FIR containing names of the accused persons was lodged before the inquest and when inquest was made in presence of P.W.1 but no name was given during the inquest, the same casts doubt with regard to the prosecution story. Mr. Mukherjee further submitted that charge was framed against the appellants under Section 149/302 IPC but they were convicted for the commission of offence under Section 302/34 IPC. He also submitted that when the FIR was lodged after knowing fully well that the victim had died and even then the case was started under Section 307 IPC but forwarded subsequently, the same also casts a doubt with regard to the authenticity of the FIR.
Mr. Mukherjee relied on the decisions of Mehraj Singh Vs. State of U.P. reported in (1994)5 Supreme Court Cases 188, Thanedar Singh Vs. State Of M.P. reported in (2002) 1 Supreme Court Cases 487, Mobarak Sk @ Mobarak Hossain Vs. The State Of West Bengal reported in (2011)1 C Cr. LR (Cal) 687, Rebati Baidya and Ors. Vs. The State Of West Bengal reported in (2014)1 C Cr. LR (Cal) 171 and of Asraf Biswas Vs. The State Of West Bengal and Jahiruddin Molla and Ors. ,an unreported judgment 8 of this court passed on August 11,2016 in CRA No. 840 of 2013 with CRA No.892 of 2013 in support of his submissions.
Mr. Arun Kuamr Maity, learned advocate appearing for the State supported the order of conviction and sentence passed upon the appellants. According to Mr. Maity, prosecution case is based on the ocular evidence of P.W.1, P.W.3, P.W.4 and P.W.5 as also the dying declaration made by the victim before P.W.2 and P.W.12, wife and mother of the victim, respectively. He further submitted that non disclosure of the name of any assailant in the inquest report is not fatal for the prosecution as inquest was done as per provisions of Section 174 CrPC which was only to ascertain the cause of death and the condition of the body. He further submitted that evidence of eyewitness cannot be brushed aside for non-examination of the scribe and the benefit of doubt given to the accused Kuddsh cannot not entail the same to the other accused persons. He also submitted that place of occurrence was on the road in front of the house of the Sejar Sk. and FIR has been fully corroborated by P.W.1 to P.W.6, P.W.12 and P.W14. He also submitted that there cannot be a doubt with regard to the mental condition of the deceased in making dying declaration and moreover no evidence was adduced or any question was put to the prosecution witnesses that victim was not in a position to talk. According to Mr. Maity, there was no deficiency in examination of the appellants under Section 313 CrPC and that appellants were given fullest opportunity to explain the 9 circumstances. He also submitted that plea of false implication is not sustainable merely because of filing of criminal case and that no suggestion was put to any such witnesses nor any document was produced to that effect. He also submitted that though there are certain minor contradictions but the same do not shake the basic core evidence of the prosecution witnesses. Furthermore, witnesses were examined after 11 years of incident but inspite of that their evidence remained unshaken. According to Mr. Maity learned trial judge was quite justified in convicting and sentencing the appellant's for commissions of offence under Section 302/34 IPC.
We have considered the submissions of learned advocates appearing for the respective parties and perused the evidence and documents on record to consider the propriety of the impugned judgment.
On perusal of the evidences of the P.W.s on record together with the evidence of the doctor (P.W.10) and the PM report (Ext.4) it was evident that on November 12, 1999 during postmortem examination over the dead body of the victim, the doctor found 11 incised wounds of different dimensions on the person of the deceased mostly on the scalp and opined that death was due to the effects of those injuries which were antemortem and homicidal in nature and such type of injuries may be caused by a hasua. This was not disputed and denied by the defence. That the victim sustained those injuries on his person on November 11, 10 1999 is evident from the evidence of P.Ws. on record and the inquest report (Ext.1).
Learned trial judge took into consideration the evidence of P.W.1 to P.W.6 as also the evidence of the hostile witnesses namely P.W.7, P.W.9 and P.W.11 besides the evidence of the doctor and investigating officer to arrive at the conclusion that the prosecution has been able to prove the charge against the appellants for the offence punishable under Section 302 /34 IPC and accordingly passed the impugned judgment.
P.W.1 is the brother of the deceased. He was reportedly present in the nearby tea stall of Serajul and saw the incident of assault on deceased Ajlu Sk. in front of the house of Sajar Sk. According to him he saw the accused/appellants and Lokman cut his brother. On seeing the incident when he shouted, accused also tried to assault him but he managed to save himself and accused fled away therefrom. On hearing his alarm P.W.2, P.W.3, P.W.4and P.W.5 came at the spot and at that time his brother was alive and he told the name of the miscreants to his wife P.W.2. They then took the injured to the hospital but on the way he died and accordingly on arrival at the Malda Sadar Hospital his brother was declared dead. He identified the appellants on dock in course of his examination before court. During cross he admitted that the accused persons initiated a criminal case against them including deceased Ajlu Sk. which is pending in court. He also specifically stated during cross- examination that he was present in the tea stall of Serajul and besides 11 him P.W.3, P.W.5 and P.W.11 were also present and he saw the accused persons at the place and time of incident and found none else amongst them. He admitted that he was present at the time of inquest and stated nothing to the police about the incident at the time of inquest. He also admitted that P.W.2 is his sister-in-law, P.W.3, P.W.4 and P.W.5 are his cousins, P.W.6 is his elder brother and P.W.12 is his mother.
According to P.W.3 at the time of incident he was sitting near the house of P.W.9 at the tea stall of P.W.7 about 6/7 cubits from the house of Sajer and saw the appellants and Lokman assault the victim Ajlu by a hasua and after assaulting they fled away. He identified the appellants in course of his examination before court. During cross-examination he clearly stated that prior to his arrival at the place of occurrence P.W.9 and deceased Ajlu were sitting together and he saw the incident. He also stated that the incident of assault took place near the house of P.W.9 which is 6/7 cubits from the house of Sajer. He also specifically stated that he saw those six miscreants namely the appellants and Lokman at the place of occurrence and he did not see Kuddus and further that those accused came to the place of occurrence through house of P.W.9. He admitted that he stated to the investigating officer that accused persons left the place in the dark leaving the deceased on the ground thinking that he had died. Inspite of lengthy cross-examination his evidence remained unshaken.
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P.W.4 has also specifically stated that at the relevant time while he was sitting in the tea stall of P.W.11 he suddenly heard a shout and then saw the appellants and Lokman assaulting the deceased Ajlu by a hasua as a result he fell down on the ground with serious injuries and the accused persons fled away therefrom. He further stated that relatives of the victim came and shifted him to the hospital and further that the victim was alive at the spot even after the said assault. He too identified the appellants in court in course of his examination. He too was cross- examined by the defence at length but his evidence also remained unshaken.
P.W.5 is another eye witness. According to him at the relevant time he was present at the tea stall of P.W.11 and then heard sounds and saw the appellants were assaulting victim by hasua in front of the house of the Sajer on the road and after that appellants fled away therefrom. They then shouted and as such some persons assembled there and the victim was sent to the hospital. He also identified the appellants during trial. He was also cross-examined by the defence at length but nothing came out contrary to his statements in chief. He admitted that the victim was his step maternal uncle. His evidence also remained unshaken during cross-examination.
P.W.2, wife of the deceased Ajlu Sk has deposed that at the time of incident she was at her house and on hearing shouting she went to the place of occurrence and found her husband having injuries on his 13 person. According to her, her husband on being asked told her that accused Lokman (since deceased) and the appellants had cut him. She identified the appellants during trial. During cross-examination too she stated that she came to the place of occurrence immediate after the incident and found P.W.1 and P.W6 there. She also specifically stated that when she, P.W.1 and P.W.6 asked her husband as to what had happened he disclosed them the names of the miscreants who caused the injury.
P.W12, mother of the deceased has also deposed that at the time of incident she was at her house and on getting information she came at the place of occurrence and found her son Ajlu with bleeding injury and on being asked her son told her that the accused/appellants and Lokman cut him by a hasua. On being asked she specifically stated that she knew the miscreants but now she cannot identified them. According to her also, the incident took place near the house of Sejar Sk. and at that time her son was gossiping with P.W.9. During cross-examination she also affirmed that the incident took place near the house of Sejar and when her son disclosed about the incident P.W.1, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.7 were present.
P.W.6, brother of the deceased and the FIR maker also deposed that incident took place in front of the house of the Sajer and on hearing shouting he came to the place of occurrence and found his brother Ajlu was lying having serious bleeding injury. He further deposed that 14 appellants as also Lokman assaulted his brother and that he heard about the incident from P.W.1, P.W.2, P.W3, P.W4 and P.W.5. He identified the appellants during trial. During cross-examination he stated that in the complaint he had stated whatever he heard from P.W.2 and others. He admitted that complaint was scribed at the P.S. and could not recollect the name of the scribe.
P.W.7, a tea stall owner, P.W.9 who was with the victim when the incident took place and P.W.11, another tea stall owner though admitted the prosecution allegation that on the relevant date and time deceased Ajlu was murdered by the miscreants but narrated a different story for which they were declared hostile by the prosecution and were cross- examined by the prosecution. They even denied that they were examined by police or they stated to the investigating officer that they saw the accused/appellants, Lokman and Kuddus to assault deceased Ajlu by hasua but from the evidence of the investigating officer (P.W.14) it was evident they had stated all these to the him during investigation. P.W.14,the investigating officer, has clearly deposed that during investigation P.W.7 told him that he suddenly heard halla about 15.20 cubits away from his shop and saw the appellants as also Lokman Sk. of their village assaulting Ajlu Sk. by hasua, farsha, ballam etc. as a result Ajlu Sk. fell down on the ground having bleeding in injured condition. P.W.9 also stated before him during investigation that on the relevant evening while he and deceased Ajlu were gossiping sitting on the road 15 near the house of Serajuddin then in a preplanned manner appellant and Lokman Sk. being armed with hasua, forsha etc. started assaulting him recklessly by a hasua causing bleeding injury on his person as a result he fell down on the ground and the miscreants fled away in the dark. P.W.11 also stated before him during investigation that on the relevant evening why he was dealing in his business in his shop he saw the appellants and Lokman cutting Ajlu by hasua, ballam etc. All these show that P.W.7, P.W.9 and P.W11 have not revealed the truth before the court and as such they cannot be relied on. P.W.8 is the recording officer who on receipt of the written complaint from P.W.6 started the P.S. case, P.W. 10 is the doctor who conducted postmortem examination over the dead body of the victim, P.W.13 is the constable who took the dead body to the Malda Sadar Hospital morgue for conducting postmortem examination while P.W.14 is the investigating officer. So, it was evident from the evidence of P.W.1, P.W.3, P.W.4 and P.W.5 that they witnessed the incident of causing death of the victim by the appellants and Lokman. All the above eye witnesses have described the hasua as the weapon used in the commission of the offence causing severe cut and bleeding injuries on the person of the victim and the wound noticed by the doctor, P.W.10, and his opinion about the types of weapon which can cause such type of injuries also throw a considerable light on this aspect. The evidence of above eye witness also found corroboration from P.W.2, P.W.6 and P.W.12 who were the post 16 occurrence witnesses. Thus, we find that the prosecution case was fully established by the direct testimony of the eyewitness P.W.1, P.W.3, P.W.4 and P.W.5, which was corroborated by post occurrence witnesses and the medical evidence. Their statements-in-chief remained unshaken during cross-examination and nothing was brought on record to discredit them. Their evidence on oath appeared to be trustworthy and believable and as such there was no reason to discard their evidences. It is true that P.W.7, P.W.9 and P.W.11 did not support the prosecution case for which they were declared hostile by the prosecution but that would not render the prosecution case doubtful and discard the unimpeachable evidence of the eye witnesses.
Regarding the question of credibility of the evidence of interested witnesses, it was observed by the Hon'ble Apex Court in the matter of Sarwan Singh & Ors. vs. State of Punjab, reported in (1976) 4 SCC 369 that even though an eyewitness might have belonged to the group of the deceased and that witness came from one particular group was sufficient to show the interested nature of evidence. But it was not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. In the matter of Alamgir vs. State (NCT, Delhi), reported in 2003 SCC (Cri) 165 it was also observed by the 17 Hon'ble Court that reliability of a witness cannot be questioned on the ground that she is an interested witness.
In the instant case, we find that the independent eye witnesses P.W.7, P.W.9 and P.W.11 in course of their examination during investigation immediate after the occurrence vividly narrated the incident of murder of the deceased Ajlu Sk. by the appellants and other to the investigating officer thereby supporting the prosecution case but when they were examined in court after about 10 years of the incident they turned hostile. In such a situation, prosecution had no other option but to rely on the testimony of other eye witnesses namely P.W.1, P.W.3, P.W.4 and P.W.5. The direct testimony of the above eye witnesses though related fully established the prosecution case which was corroborated by the medical evidence. Notably, they deposed before court after more than 10 years of incident and withstood the cross-examination with courage and boldness and their testimony could not be impeached by the defence. In such circumstances, there was no reason to reject the same. It is true that P.W.7, P.W.9 and P.W.11 did not support the prosecution case for which they were declared hostile by the prosecution but that would not render the prosecution case doubtful and discard the unimpeachable evidence of the above eye witnesses. Record shows that FIR was lodged at the P.S. on the same day within three hours of the incident directly naming the appellants and others. Moreover, the evidence of above eye witnesses also found corroboration from P.W.2, 18 P.W.6 and P.W.12 who were the post occurrence witnesses, as well as the doctor, P.W.10.
Regarding the place of occurrence, we find that the FIR and the eye witnesses had given vivid and consistent account of the place of occurrence as in front of the house of Sejar Sk. of Paharpur village. The witnesses were cross-examined by the defence at length but nothing came out contrary to their statements -in-chief rather they affirmed the same during their cross-examination. In the rough sketch map (Ext.6) place of occurrence has been shown as the village road. The surrounding places namely, tea stalls of Serajul Sk. and Sudin Sk., grocery shop-cum house of Saijul Sk., dwelling houses of Sudin Sk., Jinnat Sk., Masum Sk., Serajul Sk. and Mahatab Ali have also been shown. Though the house of Sejar Sk. has not been shown in the rough sketch map but the location of the house of Sejar Sk. has been clearly described by P.W.1 and P.W.6 during their cross-examination by the defence. P.W.1 has clearly stated during cross-examination that by the side of the house of Sejar there is a house of Masum, to its west there is a vacant place and after the said vacant place there is house of Samiruddin and after that there is house of Ashiruddin and Sudin in front of the house of Sejar intervened by village. P.W.6 has also stated during cross-examination that there is a road on one side of the house of Sejar and on another side of his house there is a lane emerging from that road, house of Masum adjacent to the house of Sejar. He has also stated that to the east of the 19 house of Sejar intervened by road there is a tea stall of Sudin. P.W.3 has described the place of occurrence near the house of Adhir but clearly stated that the distance between the house of Adhir and Sejar is about 6/7 cubits. P.W.12, mother of the deceased too has stated that the incident took place near the house of Sejar. It is true that forensic evidence with regard to the blood stained earth was not available but failure to lead forensic evidence with regard to the blood stained earth by itself does not jeopardize the prosecution case where there is other reliable evidence to fix the scene of occurrence. The evidence of eye witnesses appears to be worthy of reliance to fix the scene of occurrence. In view of the above, the submission of the learned advocates for the appellants that the place of occurrence was not proved beyond reasonable doubt does not appear to be correct. Evidently, in the charge form the place of unlawful assembly of the accused persons has been described as in the house of Adhir Sk. while the place of incident of assault has been described at Paharpur. P.W.3 has stated during cross- examination that accused persons came to the place of occurrence through the house of Adhir. Evidence shows that the house of Sajar Sk. is near the house of Adhir Sk. It was all along the the specific case of the prosecution that the incident of assault took place in front of the house of Sejar Sk. at Paharpur village and the evidence was also led in this regard. The witnesses also faced the cross-examination and even after closure of the evidence of the prosecution questions were put to the 20 appellants during their examination under Section 313 Cr.P.C. specifically stating the place of occurrence as in front of the house of Sejar Sk. Even no such plea was taken before the learned trial court to this effect. Moreover, as per provisions of Section 464 of the Code of Criminal Procedure any such error in the charge will not render any finding, sentence or order by a court of competent jurisdiction to be invalid unless the same has occasioned a failure of justice.
It is true that the investigating officer failed to seize any blood stained earth and controlled earth from the place of occurrence and even did not send the seized wearing apparel of the deceased to FSL for examination but that itself will not render the prosecution case doubtful. It is settled law that for certain defects in investigation, lapses on the part of the investigating officer, the accused can not be acquitted and it is the obligation on the part of the Court to scrutinies the prosecution evidence de hors such lapses to find out whether such lapses affect the object of finding out truth. Furthermore, in a catena of decisions it has been held by the Hon'ble Supreme Court 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.
Regarding failure to recover weapon of offence, as submitted by the learned advocate appearing for the appellants, we find from the evidence 21 of P.W.1, P.W.3, P.W.4 and P.W.5, the eyewitnesses that they had clearly stated on oath that the accused/appellants and Lokman, since deceased, assaulted the victim with hasua, farsha etc. and fled away therefrom. Ext.4, P.M. report and the evidence of P.W.10, autopsy surgeon, also show that on examination doctor found incised injuries on the person of the deceased and according to the doctor those type of injuries may be caused by hasua. This was not disputed by the defence nor the doctor was challenged on this score. Moreover, failure to recover weapon of assault is not fatal for the prosecution case when the prosecution case is otherwise proved based on the testimony of the eye witnesses.
Regarding non production of the GDE mentioned in the FIR, we find that the same relates to the drawing of the FIR only. It is not the case of the prosecution nor the defence has made out a case that prior to receipt of that written complaint any intimation of incident was given to the P.S. orally which was reduced into writing and the GDE in question relates to the same. As such, non production of the same will not affect the prosecution case.
Therefore, our interference with the impugned judgment is not required on the above grounds.
Regarding the veracity of the written complaint being written at P.S. and no endorsement in the complaint that it was read over and explained to the maker, we find from the evidence of P.W.6,the FIR 22 maker, that he after sending of victim to the hospital went to the P.S. to lodge the complaint and his complaint by scribed by a person. His mental condition at the relevant time can be gauged from the fact that his brother was brutally attacked and severely wounded and was fighting for life and just after sending him to hospital he proceeded to the P.S. which is 15 Km. away from the place of occurrence. There his complaint was scribed by a person. He could not recollect the name of that person who scribed his complaint but he identified his signature (Ext.1/1) on the complaint. Not much significance can be attached as to who scribed the complaint or where it was scribed. The only relevant issue would be whether the complaint was scribed as per the instruction of the maker and contents of the same are according to his narrations of the incident on which he put his signature. No suggestion was put to him by the defence that the contents of the written complaint was not of him and was rather an imagination of the scribe. He denied the defence suggestion that he concocted a false story implicating the appellants due to enmity and in collusion with police he lodged this FIR subsequently. He specifically stated during cross-examination that save and except himself none other lodged any complaint over the incident. P.W.14 clearly stated that Kishore Saha who had tea stall within Kaliachak P.S. scribed that complaint and he knew him. No such question was put either to the investigating officer (P.W.14) or to the officer-in-charge of P.S. (P.W.8) who received the complaint that in collusion with police the 23 said written complaint was prepared subsequently. However, failure to name the scribe, absence of any endorsement in the complaint that it was read over and explained to the maker or scribing of any complaint at the P.S. or vicinity of the P.S. will not ipso facto render the complaint ineffective or lead to any doubt as to its veracity.
Regarding the question of delay in sending the FIR and the same being ante dated, it is settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case. In the instant case, as is evident from the FIR (Ext.2) and the evidence on record that the incident in question took place on November 11, 1999 at about 18.30 hours and the FIR was lodged at the P.S. on the same night at 21.15 hours but the same was placed before the Magistrate for obtaining his signature on November 15, 1999. P.W.6, the FIR maker, has specifically stated that on getting the information of incident he went running there and found his brother lying having serious bleeding injuries. Thereafter, his brother was taken to the hospital and he went to the P.S. by availing a vehicle and lodged the written complaint (Ext.2). At that time victim was alive though in a critical condition. As such on the basis of the allegations made in the complaint case was initiated for the commission of offence under sections 324/326/307 IPC. Only because P.W.6 got the news of death of his brother over phone while he was at the P.S. it will not be sufficient to 24 add 302 IPC in the charge. This itself indicate that on the very date of incident before the death of the victim FIR was lodged at the P.S. P.W.8, officer in charge of Kaliachak P.S., has also clearly stated that on 11.11.1999 he received the complaint (Ext.2) from P.W.6 at 21.15 hours and started Kaliachak P.S. Case No. 290/99 under sections 324/326/307/34 IPC and endorsed the case to P.W.14 for investigation. Surprisingly, he was not challenged by the defence about any such delay in sending the FIR to the court. P.W.14 also clearly stated that this specific case was started on November 11, 1999 and he visited the place of occurrence on the same date. From the rough sketch map with index (Ext.6)it is evident that on the very date of incident same was prepared in connection with this case. P.W.14 also admitted that on the very date of incident he got information that victim died but officially he came to know on November 13, 1999 and accordingly he made prayer for adding Section 302 IPC on November 15, 1999. Therefore, taking into account the entire circumstances, we do not find any substance in the claim that the FIR was antedated or fabricated one. Our interference is, therefore, not required on the above grounds.
Regarding non-mentioning of the name of appellants in the inquest report, we find from the record that the victim was taken to the Malda hospital where he expired on the same night. As such a UD case being no.490 dated November 12, 1999 was started at the English Bazar P.S. and inquest was held by an officer of the said P.S. in that hospital. Fact 25 remains that the inquest report (Ext.1) is silent about the assailants and no name has been mentioned therein. P.W.1 was the witness to the inquest. He has specifically stated during cross-examination that at the time of inquest he did not state to the police about the incident. The provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by some weapon, etc. So, mere omission of the name of assailants in the inquest report is not fatal and no inference adverse to the prosecution could be drawn for the same. Therefore, in view of the settled proposition of law the above discrepancy cannot affect the credibility of the evidence of the eye witnesses concerned.
Regarding the question of identification of the appellant on account of darkness and omission to mention the source of light and/or seizure of the same as submitted on behalf of the appellants, we find that the incident took place on November 11, 1999 at about 6.30 p.m. P.W.1, P.W.3, P.W.4 and P.W.5, the eyewitnesses, have vividly spoken about seeing the appellants along with one Lokman since deceased to assault the victim. No suggestion was put to them that darkness prevailed at the relevant time and due to darkness it was not possible for them to identify 26 the assailants. Even if we accept the evidence of P.W.3 that during investigation he stated to the police that accused persons left the place of occurrence in darkness leaving the victim on the ground, that itself will not be sufficient to draw any inference that there was complete darkness at the place of occurrence and it was not possible to identify the miscreants. Furthermore, appellants and the witnesses are residents of the same village and known to each other, hence in normal circumstances there cannot be any difficulty in identification even in case of dim or in sufficient light by their appearance and sound of their voices. So, in the absence for any evidence to the effect that there was complete darkness at the relevant time at the place of occurrence the question of mention of any source of light or its seizure does not arise. Therefore, there was no impropriety in the finding of the learned trial court on this score and as such our interference is not required on the above ground.
Regarding extension of benefit of doubt to the appellants as was given to accused Kuddus, we find from the record that name of the accused Kuddus figured in the FIR and the FIR maker, P.W.6, also named him during examination before court. But the evidence on record show that P.W.6 was not the witness to the occurrence and he implicated accused Kuddus after hearing the incident from P.W.2 and others. However, during trial none of the eye witnesses not even P.W.2 spoke about the involvement of Kuddus in the incident and as such learned 27 trial judge gave him benefit of doubt. But in so far as the involvement of the appellants and accused Lokman was concerned, same was duly corroborated by the eye witnesses. In view of the above, we do not find any merit in the claim.
With regard to the irregularity in examination of the accused persons under section 313 Cr.P.C., it is settled law that as part of fair trial, section 313 of the Code of Criminal Procedure requires giving opportunity to the accused to give his explanation regarding the circumstances appearing against him in the evidence adduced by the prosecution. It is not necessary to put the entire prosecution evidence but only those circumstances which are adverse to the accused and his explanation would help the court in evaluating the evidence properly. Any omission to put any material circumstances to the accused does not ipso facto vitiate the trial and the accused must show prejudice and that miscarriage of justice had been sustained by him. Reference may be made to the decision of Nar Singh vs. State of Haryana, reported in 2015(1) SCC(Cri) 699 and the relevant portion of the above decision is quoted below :-
"20. The question whether trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 Cr. P. C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under section 313 Cr. P. C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to safeguard given to him under section 313 Cr. P. C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused 28 to him or in the facts and circumstances of the case, such prejudice may be implicit and the court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused."
It is evident from the record that such plea of prejudice is raised before this court for the first time. However, from the questions put to the appellants during their examination under section 313 Cr. P. C., we find that the circumstances which were adverse to the appellants were duly put to them. They duly gave replies thereto and also set up their defence. The only omission, as it appears, was non mentioning the name of some of the witnesses though incriminating circumstances were put to them. In view of the above, the contention of the appellants does not lead us to interfere with the impugned judgment on this score.
Regarding dying declaration, it is settled proposition of law that the Court while passing an order of conviction on the basis of a dying declaration would look for some corroborating evidences only in the event there exists any suspicion as regards correctness or otherwise of such dying declaration. In the case at hand we find that only P.W.1, P.W.2 and P.W.12 have made the claim of dying declaration by the victim. According to P.W.1, on hearing his alarm P.W.2, P.W.3, P.W.4 and P.W.5 came at the spot and at that time victim was alive and he told the name of the miscreants to P.W.2 but admittedly he did not say this to the I.O. nor his above claim has been corroborated by P.W.3, P.W.4 or P.W.5. Similarly claim of dying declaration of P.W.2 and P.W.12 also does not 29 find any corroboration from other witnesses present there. Under the circumstances, there was suspicion in the mind of the learned Court below with regard to correctness of such dying declaration and accordingly learned Court below ignored the same. Therefore, the decision of the learned court below on the above score does not require our interference.
Regarding conviction of the appellants for the commission of offence under Section 302/34 IPC though charge was framed under Section 149/302 IPC, we find from the evidence of the eye witnesses that appellants along with another being armed with hasua, farsha etc. suddenly came to the place of occurrence and attacked the victim causing fatal injuries on his person which ultimately resulted in his death. Even the autopsy surgeon, P.W.10, stated during cross- examination that injuries of the victim were fatal which may cause instant death. Thus, the evidence of the eye witnesses along with the injuries found during postmortem examination clearly bring out the common intention of the accused-appellants to do away with the deceased. Accordingly, the learned trial judge taking into account the same found the appellants guilty of the offence under Section 302/34 IPC and convicted them. There is no bar on conviction of the appellants with the aid of Section 34 IPC in place of Section 149 IPC. Reference may be made to the decision of Dhaneswar Mahakud and Others vs State of Orissa reported in (2006) 9 Supreme Court Cases 307.
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Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under Section 302/34 IPC.
In view of the facts and circumstances involved in this case the decisions of Mehraj Singh (Supra), Thanedar Singh (Supra), Mobarak Sk @ Mobarak Hossain (Supra), Rebati Baidya and Ors. (Supra) and the unreported judgment of this court in the matter of Asraf Biswas Vs. The State Of West Bengal and Jahiruddin Molla and Ors. Vs. The State Of West Bengal (Supra) do not help the appellants because of the distinguishable facts and circumstances of those cases.
After scrutinizing the entire evidence on record, we do not find any illegality in appreciation of evidence or in arriving at the conclusion as to the guilt of the appellants by the learned Trial Court.
Therefore, for the reasons discussed above, we find no force in this appeal which is liable to be dismissed.
We, therefore, dismiss the appeal and affirm the conviction and sentence imposed on the appellants.
Copy of this judgement along with the lower court records be sent down to the trial court for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be 31 given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Jay Sengupta, J.)