Gauhati High Court
Bidhan Nath Parijat Kusum Nath And Ors. vs State Of Assam on 19 August, 1999
Equivalent citations: 2000CRILJ1144
Author: H.K. Sema
Bench: H.K. Sema
JUDGMENT P.C. Phukan, J.
1. This is an appeal directed against the judgment and order dated 20.3.1996 passed by the learned Sessions Judge at Silchar in Sessions Case No. 67 of 1992 convicting the three accused appellants under Section 302/34 IPC and sentencing them thereunder to imprisonment for life and to pay fine of Rs. 5,000 each, in default, to further two years' rigorous imprisonment.
2. We have considered the records of the case, impugned judgment and order and have heard Mr. A.K. Bhattacharyya, learned senior counsel for the accused-appellants, and Mrs. K. Deka, learned Public Prosecutor appearing for the State respondent.
3. The relevant facts which are necessary for disposal of this appeal are summarised as follows. On 14.11.1988 at about 9-50 P.M/., Sub-Inspector of Silchar Police Station, PW. 11 received a telephonic call from one Mrs. Tapati Endow (not examined) that her younger brothers Parijat and Babla (accused appellant Nos. 1 and 2 respectively) were being assaulted by Tutan (deceased) and two others at Ambicapatty Chowrangi. P.W. 11 made a General Diary Entry Ext. 11 and directed town Sub-Inspector P.W.12 to proceed to the place of occurrence, P.W.12 arrived there at 9-58 P.M. and an old man told him very briefly that some persons assaulted his cousin (Tutan) and that he had been taken to Sitchar Civil Hospital. P.W.12 rushed to the Civil Hospital, but before he reached there Tutan was shifted to Silchar Medical College Hospital. P.W.12 arrived there at 10-20 P.M. The doctor declared him dead. P.W.12 held the inquest (report Ext. 7) and arranged for post mortem examination (report Ext. 6). The same night at 1-00 A.M. in the Medical College Hospital the deceased's uncle Swapan Roy gave P.W.12 the FIR Ext. 13 stating inter-alia - "At Medical College Shri Joy Dutta (P.W. 9) and Sadhan Chakraborty (P.W.4) told me that the incident happened in front of them before they could do a thing to rescue Debajit (@ Tutan) by Shri Bidhan Nath, his brother Babla and their cousin Suman Nath (3 accused/appellants), all were armed with daos". P.W.12 forwarded this FIR to Silchar Police Station for reregistration of a case under Section 302/34 IPC and in the Medical College Hospital itself examined and informant Swapan Roy, Sadhan Chakrabarty (P.W.4), Subhasis Dutta Choudhury (P.W.9), Swapan Kr. Ghosh (not examined), Dulal Paul (not examined) and others. The same night at 3 A.M. P.W.12 searched the house of accused appellants Bidhan, Babla and Suman named in the FIR, Ext. 13 and found them absconding. Receiving secret information that they fled away towards Tikarbasti, P.W.12 went there but no trace could be found out. He signalled all the police station of Barak Valley for their arrest. Next morning P.W.12 visited the place of occurrence, drew the sketch map Ext. 14. P.W.12 found some dried up blood marks on the slab of the Sanitaiy latrine and also near the entrance door of the front room of P.W. 2's house. Ext.4 is the seize list and ext. 2 is the seized blood contents kept in a polythene bag. In search of the accused appellants, P,W. 12 visited different placed of Cachar district and also Shillong and Guwahati. Message was sent to the Police at Calcutta. P.W.12 submitted a prayer Ext. 15 to the Chief Judicial Magistrate for issuing warrant of arrest and proclamation and attachment warrant. Accused Partha Pratim, a P.W.D. Junior Engineer, was found absent from his office from 15.11.1998. Accused Parijat Kusum Nath. an Assistant Labour Inspector, was also unauthorisedly absent from his duty. At last on 12.2.1989 the three accused-appellants appeared in Silchar Police Station after obtaining anticipatory bail from the High Court . The prosecution case as revealed, during investigation, is that on 14.11.1988 at about 9-45 P.M. at Ambicapatty Chowrangce there had been altercation between the deceased and three accused appellants, the former then started running towards the house of P.W.2 chased by the latter with dao like weapons in their hands. They assaulted him in front of P.W.2's house and then dragged him towards the latrine of the said house, again assaulted him with the weapons in their hands and then fled away. The deceased succumbed to his injuries in the same night. On completion of investigation the police submitted charge-sheet against all the 3 accused appellants under section 302/34 IPC.
4. In the trial prosecution examined 12 witnesses. Amongst them, P.Ws. 4 and 9 claimed to be eye witnesses. The defence examined two witnesses who merely said that at the relevant time there was load shedding in the Ambicapatty Chowrangee area. The defence case is one of total denial. During their examination under section 313 Cr.P.C. the accused appellants Bidhan and Partha said that they had been falsely implicated in this case out of previous grudge.
5. On consideration of evidence on record and after hearing the prosecution and the defence, the learned Sessions Judge convicted and sentenced the accused appellants as stated above and hence this appeal.
6. Mr. A.K. Bhattacharyya, learned Senior counsel for the accused appellants, has led us minutely through the evidence on record. It has been amply proved by the prosecution and has not been disputed by the defence that on the night of 14.11.1988 the deceased sustained injuries in his person and succumbed to such injuries on the same night. At Silchar Medical College Hospital, the doctor declared him dead in the Casualty Department at 10-45 P.M. The Investigating Officer P.W.12 held inquest. As per inquest, cut injuries were found on the right side of the upper lip, nose and on the neck behind the right ear, piercing through the ear, on the left hand between the middle and ring fingers, on the right shoulder, on the left side of the back, above the right heel and on the left ankle. The next day the Associate Professor Forensic Medicines, P.W.10 performed the post mortem examination and found the following ante mortem injuries:-
(1) Incised wound on right side of face 11/2" outer to the alae of right nose measuring 4 cm x 1/2 cm x 1/2 cm "2" shaped. Margins of the wound regular.
(2) Incised wound back of right ear extending from the back of right ear to lower and of the mustoid process. Placed abliquely measuring 5 cm x 1 cm x 1/2 cm. Margine of the wound are regular.
(3) Penetrating wound back of right chest-wall 8 cm below the right shoulder blade and 21/2 cm outer to the mid-line Eliptical shape. Margine are clean cut measuring 2 cm x 1 cm by cutting the skin muscle, third rib posteriorly, pleurace and entered the right upper lobe posteriorly measuring 1/2 cm x 1/2 x 1 cm..
(4) Incised wound on healf chest-wall in back 8 cm below the angle of scapulae and 7 cm outer to the mid-axillary line, eliptical in shape measuring 2 cm x 1/2 cm x 1/2 cm. Margins of the wound are regular.
(5) Incised wound on the left chest-wall in back 24 cm below the left shoulder blade measuring 2 cm x 1 cm x 1 cm. Margins of the wound are regular.
(6) Penetrating wound on the lower abdominal wall through which omentum is coming out. On removing the omentum the shape of wound found eliptical measuring 2 cm x 1 cm upto the abdominal cavity. No injury found inside the abdominal organ. The margins of the wound are regular.
(7) Incise wound in left middle, ring and little fingers in palm area and in the same line.
(i) measuring 2 cm x 1/2 cm x 1/2 cm. (ii) measuring 1 cm x 1/2 cm x 1/4 cm.
(iii) measuring 1 cm 1/2 cm x 1/2 cm respectively. Margins of the wounds are regular.
(8) Abrasion left side of lumber region measuring 6 cm x 2 cm.
(9) Abrasion right scapular region 1 cm x 1 cm.
(10) Abrasion right shoulder 1 cm x 1 cm.
(11) Abrasion left thigh lower half of the outer aspect 2 cm x 2 cm.
(12) Abrasion right foot medically 3 cm below the medial malleolous measuring 3 cm x 2 cm.
7. The doctor deposed that the injury Nos. 1 to 7 were caused by sharp weapon and injury Nos. 8 to 12 by blunt object and opined that death was due to shock and haemorrhage as a result of antemortem injury in the lung caused by sharp weapon and homicidal in nature. No suggestion was put to the doctor in his cross-examination that it was not a case of homicide and that the injuries were self inflcited or caused by accident. The time of the occurrence also has not been disputed by the defence.
It is, however, contended to ground No. VI of the memo of appeal that-
"The evidence on record could not establish the place of occurrence affirmatively, inasmuch as, the investigating Officer has failed to show 'blood marks' in the sketch map."
But in fact there is a portion marked 'F' in the sketch map Ext. 14 and the index thereto shows "f - indicates the Sanitary Latrine of Digendra Purkayastha and place from where the dried blood were collected and seized." The Investigating Officer P.W.12 exhibited the seizure list Ext.4 to prove such collection and seizure of dry blood from there. P.W.8 is a witness of such seizure, Ext.4(l) being his signature. In view of this, the finding in AIR 1979 SC 59 (para 19) relied upon by the learned counsel for the accused-appellants that - "the fact that the blood at the place of occurrence was not indicated in the sketch map clearly shows that P.W.2 did not receive injury at that place" is of no help to the defence. It is true that in this case blood collected was not sent for Chemical examination. In this regard learned counsel has referred to a decision reported in AIR 1975 SC 468 (Para-17) that "failure of the police to send the blood for Chemical examination in a serious case of murder has to be depreciated." But it is added in the same para, "However, such an omission need not jeopardise the success of the prosecution case where there is other reliable evidence to fix the scene of occurrence." In the instant case there is other reliable evidence in this regard. That apart, it has been held in (1998) 6 SCC 50 that omission to send blood stained earth collected from place of occurrence for Chemical examination does not vitiate the investigation. In this case the sketch map Ext. 14 also shows that the place of occurrence started from Ambicapatty Chowrangee and scattered up to the latrine of D. Purkayastha (P.W.2), and to this effect there is evidence of the Investigating Officer P.W.12 who visited the place of occurrence on being shown by P.Ws.4 and 9 who fully corroborated P.W.12. Apart from P.Ws. 4 and 9, the evidence of P.W. 1 wife of Dhirendra Ch. Purkayastha (P.W.2), her brother P.W.7, S. Purkayastha- confirmed the appearance of the deceased in the house of P.W.2 on the night of occurrence. The deceased asked for water from P.W. 1. P.W. 2, D. Purkayastha deposed that next morning the police found dry blood marks covering about 1/2 portion of a slab on the back side of his bath room adjacent to his latrine. On the night of occurrence at 9-30 P.M. P.W.3 saw the deceased running towards the house of P.W. 2 and heard people shouting "Tutan being killed" and then finding Tutan lying injured near the door frame of P.W.2's house carried him in a rickshaw to the Civil Hospital. The evidence of P.Ws. 1, 2, 3 and 7 regarding time and place of occurrence as aforesaid in their evidence was given in the court before they were declared hostile by the prosecution. Although declared hostile, their evidence regarding time and place of occurrence could not be discarded merely because on certain other matters they had chosen not to support the prosecution. In Khuji @ Surendra Tcwari v. State of U.P. 1991 Crl. Law Journal 2653 (Para 6), it has been held by the Apex Court that the evidence of a hostile witness can not be treated as washed off the record altogether, and part of his evidence which is otherwise acceptable can be acted upon. The evidence on record coupled with that of P.Ws. 1, 2, 3 and 7 as aforesaid leaves no room for doubt that the deceased was done to death at the time and place as alleged by the prosecution.
8. Now, the question is whether the 3 accused appellants caused the death of the deceased. Of the total twelve witnesses examined by the prosecution in this case, seven, viz., P.Ws. 1, 2, 3, 5, 6, 7 and 8 did not say anything in the trial to connect the accused-appellants with the alleged offence. P.W. 10 is the doctor who performed the post mortem examination on the dead body of the deceased. P.Ws. 11 and 12 are two Sub-Inspectors of Police: the former received the phone call and at his instance the latter proceeded to the place of occurrence, received the FIR Ext. 13 at Silchar Medical College Hospital and investigated the case and submitted charge sheet. As regards implication of the accused appellants with the alleged offence, the prosecution is thus left with P.Ws. 4 and 9 who claimed to have seen them inflicting fatal injuries on the deceased.
9. The learned Sessions Judge elaborately dealt with the evidence of P.Ws. 4 and 9 which we have also scrutinised. P.W.4 knew the deceased as well as 3 accused appellants as they all lived in the same locality Ambicapatty. P.W. 9 also earlier lived at Ambicapatty and knew them. On 14.11.1988 at about 9-30 P.M. P.W.4 was enjoying a Cinema show in VCR in the Electrical shop of Prakash (D.W.2) at Ambicapatty sitting on a rickshaw. P.W. 9 was also by his side. P.W.4 heard altercation from Ambicaptty Chowrangee about a few yards from him and saw the three accused/appellant arguing with the deceased. P.W. 9 also heard altercation. Then both P.Ws. 4 and 9 saw clearly in the light of street electric light the deceased running towards the house of P.W. 2 chased by three accused/appellants armed with dao like weapons in their hands. P.W. 4 and 9 followed them. They saw the 3 accused-appellants assaulting the deceased with the weapons in their hands in front of the house of P.W. 2. P.W. 4 deposed that there was an electric light near the door of the said house. P.W. 4 and 9 saw that the accused-appellants dragged the deceased towards the sanitary latrine of P.W. 2 and again assaulted him with weapons in their hands. Seeing that and being scared of P.W. 4 and 9 ran towards the road raising alarm that Tutan was being killed. After the assault. P.W. 9 saw the accused-appellants coming out by the same road and fled away towards their house. P.Ws. 4 and 9 returned with P.W. 3 and some persons and found Tutan lying with bleeding injuries in P.W. 2's house, his body was partly inside and partly outside the western door frame. P.Ws. 9 and 4 then went and brought the deceased's elder brother';s car. In the meantime the deceased was taken in a rickshaw to the Civil Hospital. P.Ws. 4 and 9 then came to the Civil Hospital and from there took Tutan to Silchar Medical College Hospital in the said car. The doctor declared him dead. P.W.9 deposed that the same night they (P.Ws. 4 and 9) narrated about the occurrence to Swapan Roy (deceased uncle). The same night at about 1 P.M. in the Medical College Hospital itself the Investigating Officer, P.W. 12 received from Swapan Roy the FIR Ext. 13 wherein Swapan Roy stated that P.Ws. 4 and 9 told him the names of the three accused-appellants. P.Ws. 4 and 9 corroborated one another on all material particulars. Their evidence conforms to the attending circumstances and also to the medical evidence as regards the wounds caused, weapons used and involvement of more than one assailants, inasmuch as the doctor P.W. 10 found as many as 12 injuries of which 7 were caused by sharp weapon and homicidal in nature.
10. Save and except the ground No. VI of the memo of appeal alleging failure of the prosecution to establish the place of occurrence affirmatively which we have already held to be untenable, and the ground No. 1 stating generally that evidence on. record does not warrant conviction of the accused-appellants, all other grounds set-forth in the memo of appeal are directed against the credibility and reliability of the evidence of P.Ws.4 and 9. The sum and substance of these grounds may be stated as under;
(1) P.Ws. 4 and 9 were not present at the place of occurrence at the relevant time.
(2) Even if they were present, they could not have recognised the assailants, for, the entire area comprising the place of occurrence was then enveloped with darkness because of load shedding by the Assam State Electricity Board (ASEB).
(3) Even otherwise, they must not have recognised the assailants, as is evident from their failure to disclose their names to the persons whom they met immediately after the occurrence.
(4) Their evidence does not inspire confidence, P.W.4 being an interested witness and P.W.9 a close relative of the deceased.
(5) Their evidence suffers from serious infirmity due to omissions, improvements and variations in their earlier and later statements.
11. In ground No. V of the memo of appeal, it is contended that "Non-seizure of blood stained clothes of the two witnesses viz., P.Ws. 4 and 9, has thrown a great doubt about the presence of these witnesses at the place of occurrence." This contention is unacceptable because of clear and convincing evidence on record regarding presence of P.Ws. 4 and 9 at the place of occurrence at the relevant time. P.Ws. 4 and 9 deposed that on 14.11.1988 at about 9-30 P.M. while they were enjoying cinema show in VCR in the shop of Prakash at Ambicapatty, they heard altercation between the deceased and the accused-appellants. However, Prakash, examined by the defence as DW.2, said that on 14.11.1988 by about 9 P.M., as there was load shedding in that area, he closed his shop. He added that it was not his practice to show cinema in VCR in his shop. P.W.3 gives lie to his statement by categorically saying that on the night of occurrence at about 9-30 P.M. cinema was shown in the shop of Prakash (DW.2) at Ambicapatty Chowringee and he (P.W.3) was there enjoying the same. P.W.8 also deposed that sometime video was shown in the shop of Prakash and most probably video was shown on the night of occurrence. P.W. 1 said that on the night of occurrence around 9-15 P.M. she exactly could not remember what she was doing, but might have enjoyed T.V. when the deceased came and asked for water. P.W.7, who lived in a separate house in the same compound, categorically said that on the night of occurrence he was enjoying T.V. at the relevant time. P.Ws. 1 and 7 nowhere in their evidence said that at that time there was load shedding or power failure, and it is nobody's case that they were using generator. P.Ws. 4 and 9 also categorically said that they clearly saw the deceased running towards the house of P.W.2 in the light of street electric light. As against such evidence, the defence got certain documents exhibited by an A.S.E.B. Asstt. Executive Engineer, DW. 1 in an attempt to show that at the relevant time there was load shedding in that area. However, cross-examination of DW. 1 reveals that shut down in any feeder is shown in the shut down register; but as per shut down register Ext.24 there was no shut down on 14-11-1988 in respect of feeder No. 1 supplying electricity to the area comprising the place of occurrence. The learned sessions Judge rightly rejected the evidence of DWs. 1 and 2. In view of the above, we find no reason to disbelieve the sworn testimony of P.W.4 and 9 that they were enjoying cinema in VCR in the shop of Prakash (DW.2) at the relevant time. In any view of the matter, P.Ws. 4 and 9 have satisfactorily accounted for their presence at the place of occurrence at the relevant time.
12. Our finding in the preceding paragraph that there was no load shedding in the area comprising the place of occurrence at the relevant time, negatives the second contention of the defence that even if P.Ws.4 and 9 were present they could not have recognised the assailants, for the entire area was then eveloped with darkness because of load shedding by A.S.E.B.
13. Elaborate arguments have been addressed by Mr. Bhattacharyya, learned Senior Counsel for the accused-appellants, on the next contention that even otherwise P.Ws. 4 and 9 must not have recognised the assailants as is evident from their failure to disclose their names to the persons whom they met immediately after the occurrence. It is, however, in evidence that P.W.9 disclosed the names of the accused-appellants before the deceased's uncle Swapan Roy on the night of occurrence itself in Silchar Medical College Hospital where the deceased succumbed to his injuries. P.W.9 categorically said in his evidence before the Court that he narrated about the occurrence to Swapan. The Investigating Officer P.W. 12 deposed that on the night of occurrence at about 1 A.M. in the Medical College Hospital itself he received the FIR Ext. 13 wherein Swapan stated that P.W.9 (as well as P.W. 4) told him the names of three accused/appellants. Obviously, it can not be argued that Swapan Roy's evidence in this regard is not on record, for unfortunately Swapan died before he could be examined in the trial court. The Investigating Officer, P.W.12 proved the signature of Swapan in the FIR Ext.13. P.W.12 said in examination-in-chief, "Ext. 13(4) is the signature of complainant Swapan Roy who signed in my presence." Having regard to the totality of the circumstances and cumulative effect of the evidence on record, we have no doubt that on the night of occurrence itself P.W.9 disclosed the names of the three accused-appellants to the deceased's uncle Swapan Roy before he lodged the FIR Ext. 13 at about 1 A.M. the same night.
14. Mr. Bhattacharyya, learned senior counsel for the accused-appellants has argued that P.W.4 did not state before the Investigating Officer that he told the names of the accused-appellants to Swapan, nor did he state so in his evidence before the court and that such non-disclosure of the names of the assailants is only consistent with the conclusion that he could not recognise the assailants. This argument overlooks the fact that starting from the place of occurrence to the Medical College Hospital where Swapan Roy lodged the FIR Ext. 13, P.W. 4 was all along with P.W.9 Swapan Roy, therefore, stated in the FIR Ext. 13 that P.Ws. 4 and 9 told him the names of the accused-appellants although P.W. 9 alone told him their names and P.W. 4 did not repeat what P.W. 9 already told him. For this it can not be concluded that P.W. 4 could not recognise the assailants. On the point that non-disclosure of the names of the accused persons by eye witnesses at the earliest possible opportunity renders their evidence unreliable as regards implication of the accused persons, learned senior counsel Mr. Bhattacharyya has placed reliance on the following decisions.
(1) Paudanava Kare v. State of Maharastra, AIR 1979 SC 697 (Para 6-9) (2) The State of Orissa v. Brahmananda Nanda (1976) 4 SCC 288 (Para 2), AIR 1976 SC 2488.
(3) Naluwa and others v. The State of M.P. (1976) 1 SCC 37 Paras (10-12).
(4) Mangamma Awa and others v. State of A.P.(1995) Suppl (2) SCC 434 (Para 17).
(5) Kattram v. State of H.P. (1973) 2 SCC 808 (Para 14).
(6) Taher All v. State of Assam (1995) 2 Gauhati Law Times 221 (Para 4).
15. In the first case AIR 1979 SC 697 (Paras 6-9), the only evidence that is relied upon by the prosecution is that of P.W.7. He accompanied the injured, but did not mention the name of the assailant to the doctor. P.W.7 said that the injured died and was taken to the village of his brother Kherappa who lodged the FIR when the police came next day, and there was no whisper ;n the FIR about the accused being the person who threw the stone on the deceased causing his death. In the instant case also P.Ws. 4 and 9 accompanied the deceased in seriously injured condition to Silchar Medical College Hospital and did not mention the names of the assailants to the doctor. But P.W.9 narrated about the occurrence to the deceased's uncle Swapan Roy the same night in the Medical College Hospital itself, and there is specific mention in the FIR Ex. 13 lodged by Swapan Roy about the accused-appellants being the persons who-fatally assaulted the deceased causing his death.
16. In the second case (1976) 4 SCC 288 (Para 2), the entire prosecution case against the respondent rests on P.W.6. Her evidence suffers from serious infirmities. The Apex Court referred only to one infirmity. Though she saw the murderous assault on the deceased by the respondent, she did not mention his name for a day and half. The police had already arrived. AS! Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14.6.1969. She did not disclose the assailant's name to the police or even to ASI Madan Das and waited till the morning of 15.6.1969 for giving the names of the assailant. But in the instant case, P.W. 9 disclosed the names of the accused-appellants on the very night the occurrence took place.
17. In the third case (1976) 1 SCC 37 (Paras 10-12) the daughter claimed to be the sole eye witness to the murderous assault on her father but she did not disclose the names of the assailants to any one, not even to her cousin or police. It was held that her having witnessed the assault was improbable and it was inferred from her statement that she had reached the place of occurrence after the incident. In the instant case, P.W.9 disclosed the names of the assailants the same night and did not make any statement from which it can be inferred that he had reached the place of occurrence after the incident.
18. In the fourth case (1995) Suppl (2) SCC 434 (Para 17), the maidservant claimed to be the eye witness. She however, did not narrate the incident to others at the earliest possible time and disclosed the same to the police at a belated stage. When questioned by P.W.7 she could have made the disclosure before he left for the police station. The FIR did not mention the names of the assailants. In the instant case P.W. 9 disclosed the names of the accused-appellants to the deceased's uncle Swapan Roy before he lodged the FIR Ext. 13, and the FIR did mention the names of the three accused-appellants as the assailants.
19. In the fifth case (1973) 2 SCC 808 (Para 14), a witness professed to know about a gravely incriminating circumstance against the person accused of murder but kept silent for two months. In the sixth case (1995) 2 Gauhati Law Times 221, P.W.3 claimed to be an eye witness but he reported to none about the incident, not even to the members of the deceased's family and P.W.1 who lodged the FIR until his statement was recorded by the police in course of investigation. It was held that his evidence was incredible and improbable. The facts of these two cases are obviously different from those of the instant case.
20. Thus the decisions in the above mentioned six cases relied upon by the defence are clearly distinguishable and do not help the accused appellants.
21. Mr. Bhattaharjee, learned senior counsel for the accused-appellants, further contends that the evidence of P.Ws. 4 and 9 does not inspire confidence, the former being an interested witness and the latter a close relative of the deceased. It is submitted that P.W. 4 was an accused in a criminal case filed by the accused-appellants. In cross-examination P.W.4 said that the accused-appellants filed a criminal case against him only after the instant occurrence. He also denied that he was a companion of the deceased. Nothing has been shown to the contrary. There is no evidence worth the name to show that till the time of present occurrence P.W.4 had any enmity against any of the accused-appellants or any intimacy with the deceased or his family. P.W. 4 can not be said to be an interested witness. It is true that the deceased was cousin of P.W.9. But relationship is no ground for discarding his evidence corroborated by P.W. 4 on material particulars and also by medical evidence. Ordinarily, a close relation would be the last person to screen the real culprits by falsely implicating innocent persons.
22. It has been lastly contended by Mr. Bhattacharjee, learned senior counsel for the accused-appellants, that the evidence of P.Ws. 4 and 9 suffers from serious infirmities inasmuch as, besides omission, they made improvements and variations in their earlier statements before the Investigating Officer and later statements in the Court. We have very carefully presumed such statements and found that the omissions, improvements and variations noticed in their statements are not sufficient to hold their testimony untrustworthy and infirm. In Pharwade Bhoginbhad Hirjibhi v. State of Gujarat recorded in AIR 1983 SC 753 the Apex Court held that over importance should not be attached to omissions. contradictions and minor discrepancies which do not go to the root of the matter and shake the basic version of the prosecution, and observed, interalia that a witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel, and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. In the instant case, even the investigating Officer P.W. 12 wrongly said in cross-examination, "witness Sadhan (P.W. 4) did not state before me that he saw accused Partha Protim, Parijat and Suman having altercation (darbar) with Tutan. He did not state before me that he and Joy (P.W. 9) raised hulla Tutan is being killed." But the police diary of this case reveals that Sadhan P.W. 4 did state before the Investigating Officer P.W. 2 that he heard altercation on the road about 15 yards away from him and pointed out to P.W. 9 that the accused Bitan (@ Parijat) was there. The case diary further reveals that P.W. 4 stated before the Investigating Officer that they (he and P.W. 9) raised hue and cry. Be that as it may. omissions, improvements and variations in the evidence of P.Ws. 4 and 9 have been considered by the learned Sessions Judge and reasons have been given for accepting the same. We are not inclined to discard their evidence by giving over importance to such discrepancies. We, however, do not approve the following view of the learned sessions Judge in the concluding portion of paragraph 20 of his judgment:-
"From careful scrutiny of the facts and circumstances of the instant case and mainly from the evidence of the I.O., it is established that the accused after committing the crime had absconded and thereafter appeared before the police after obtaining pre-arrest bail order form the Hon'ble High Court. This is also a factor which can be taken into consideration in favour of the prosecution."
23. The incriminating circumstance of absconding of the three accused-appellants immediately after the occurrence was not put to any of the accused-appellants in their examination under section 313 Cr.P.C. and hence has to be excluded from consideration in favour of the prosecution. However, leaving aside such circumstance, there is unimpenchable evidence on record in the instant case to bring the charge U/s 302/34 IPC home to the three accused-appellants beyond all reasonable doubt,
24. In the result, we uphold the conviction of the three accused-appellants under Section 302/34 IPC. However, as regards the sentence awarded to them thereunder to imprisonment for life and also to pay fine of Rs, 5,000 each, in default, to further two years' rigorous imprisonment, we would like to say that the words "and shall also he liable to fine" in section 302 IPC are not to be understood as a legislative mandate that the court must invariably award a sentence of fine also in addition to imprisonment for life. In the instant case, we do not think there was any need to have imposed a sentence of fine of Rs. 5,000 each over and above the sentence of life imprisonment. We, therefore, set-aside that part of the sentence and confirm only the sentence of life imprisonment awarded to three accused-appellants. The fine amount, if already paid, shall be refunded to the accused-appellants.
25. Except to the limited extent of modification in the sentence as aforesaid, this appeal fails and is dismissed.
26. The bail granted to the accused-appellants stands cancelled. The applicants are directed to surrender forthwith in the trial Court to serve out the sentence, failing which, the learned trial court shall proceed against them according to law.
27. Send down immediately the lower Court records along with a copy of the judgment and order of this Court.