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2002 DIGILAW 188 (CAL)

Sahadev Jha v. State of West Bengal

2002-03-15

Amit Talukdar, Joytosh Banerjee

body2002
JUDGMENT Joytosh Banerjee, J. The present appeal is directed against the judgment whereby learned Additional Sessions Judge, 1st Court, Murshidabad convicted both the appellants under section 302 read with section 34 of the I.P.C. and sentenced them to suffer RL for life. 2. Sher Ali Mahaldar (PW.1) on 21.6.81 in the morning came to Samser Gunge P.S. and lodged the F.I.R that on that day at about 8.30 hours his elder brother Samsul Mahaldar, Yesin Mahaldar (PW.2) and Kisto Mondal (PW.7) were coming from their house towards the C. G. Patel More through Dhuliyan Pukur Road. The informant was following them leaving some distance. All on a sudden the appellants and some other persons attacked the said elder brother and also the informant, launched assault on them with different weapons. At that time accused Sahadeb assaulted his elder brother Samsul Mahaldar, the victim with Ballam which was in his hand. Accused/appellant Kasia launched assault on the victim with Chneni. The informant was also attacked with those weapons and he also sustained injuries at the hands of the appellant and others. Then persons accompanying them raised alarm. People from the surrounding placed rushed to the spot and then the appellants with others miscreants responsible for the incident, fled away from the spot. As a result of the assault the elder brother of the informant died at the spot. 3. The investigation of the case was taken up by PW.11, S.I.M.N. Bose of Samser Gunge P.S. who recorded the F.I.R. on the basis of verbal complaint of the informant Sher Ali Mahaldar. On the basis of the F.I.R., the said witness started Samser Gunge P.S. Case No.9. He rushed to the P.O. and prepared sketch map of the same including index and seized some alamat from the P.O. under seizure list. The witness collected the P. M. report but as he was transferred from the P.S., he handed over the case to the O.C. of the P.S. and subsequently, chargesheet was submitted by S.I, N.C. Roy (PW.9). 4. In course of the trial, the prosecution examined in all 11 witnesses including the Doctor who held the p.m. examination, the police officer who mainly investigated the case and also another police officer who submitted the chargesheet merely going through the case diary and other materials collected in course of the investigation and also seizure list witnesses. 4. In course of the trial, the prosecution examined in all 11 witnesses including the Doctor who held the p.m. examination, the police officer who mainly investigated the case and also another police officer who submitted the chargesheet merely going through the case diary and other materials collected in course of the investigation and also seizure list witnesses. It transpires from the cross-examination made by the defence of various prosecution witnesses specially the informant (PW.1) that the defence has practically admitted the murder of the victim but their specific plea is that some other persons committed the murder and the accused/appellants were falsely implicated in the case due to enmity. 5. Amongst the prosecution witnesses only two witnesses, namely, PW.1, Sher Ali Mahaldar informant and PW.6 claimed in their evidence that they witnessed the incident. PW.2 Yesin Mahaldar deposed that he did not see the incident. He came to the spot after the occurrence, saw the victims Samsul Mahaldar lying in a pool of blood with multiple injuries on his body. PW.3 Hari Krishna Agarwal saw a dead body lying outside his house. PW.4 Bijoy Kumar Agarwal, PW.5 Md. Sajjad Ali were tendered for cross-examination. PW.7 Kisto Mondal only indicated that he went to see the dead body of Sam suI at the P.O. and knew nothing about who murdered the said Samsul Mahaldar. PW.8, Charu Chandra Saha heard a halla on the date of incident and came out of his shop to the varandah to see a huge crowd and also found one person lying injured just below the foot-step of the house of Nurungilal Agarwal and later on he came to learn the name of that person, which was Samsul Mahaldar. PW.10, Dr. S.P. Chatterjee was attached to Jangipur Sub-Divisional Hospital as M.O. He held the p.m. examination on the dead body of the victim Samsul Mahaldar on 21.6.81 at about 1.30 p.m. 6. The learned Advocate for the appellants at the initial stage drew our attention to an absurdity evident in the F.I.R. wherein it was noted that the incident complained of took place at 8.30 hours on 21.6.81 and the same was reported to the P.S. on the same day at 8.35 hours. The learned Advocate for the appellants at the initial stage drew our attention to an absurdity evident in the F.I.R. wherein it was noted that the incident complained of took place at 8.30 hours on 21.6.81 and the same was reported to the P.S. on the same day at 8.35 hours. 'The learned Advocate for the appellants has submitted that although the distance between the police station and the spot where the incident took place was not much, but even then the incident of murder could not have been reported within 5 minutes of such incident, specially when the informant in his cross-examination disclosed that he remained for half an hour at the spot before going to the police station for reporting the incident. We are of the opinion, that such a circumstance should not detain us for long and cannot raise any doubt in our mind about the truth of the entire allegation. The parties of the present appeal admittedly are villagers having little education. It is not expected that they would give the exact time of the occurrence. From the F.I.R. it can be said without hesitation that the incident complained of was reported at about 8.35 hours but simply relying on the statement of PW.1, the informant it cannot be said that such an incident took place at 8.30 hours and not before. In any view of the matter, in our considered opinion such a statement about the time of incident cannot make the whole evidence of the informant unreliable. 7. It is the further submission of the learned Advocate for the appellant that the F.I.R. disclosed neighbouring persons had rushed to the spot. But none of the neighbouring persons was examined' in connection with the case by the prosecution and this should create a reasonable suspicion about the prosecution case as a whole especially when one of the brothers of the informant and the victim PW.2, who was accompanying them at the relevant point of time and also another witness, namely, PW.7 Kisto Mondal who according to the case made out in the F.I.R. was accompanying those two persons did not claim to be eye-witnesses of the incident and PW.7 merely disclosed that he saw the dead body of the victim without knowing anything as to who had murdered him. The learned Additional Public Prosecutor appearing on behalf of the prosecution on the other hand, contended that the court is required to take the totality of the circumstances and should not come to an abrupt conclusion regarding the prosecution case just because some witnesses who could be relevant for the purpose of proving the case of the prosecution were not examined or if such a witness, on being examined by the prosecution failed to disclose that he indeed witnessed the incident and clearly indicated in his evidence that he did not witness any incident and he only saw the dead body of the victim, coming to the spot. 8. So far neighbouring witnesses are concerned, it is our common experience that witnesses, even those who have witnessed an occurrence are sometimes reluctant to get involved and thereby incur the wrath of the assailant or his associates. Therefore, mere absence of some likely witnesses may not always be looked upon with suspicion particularly when the evidence on record is by itself sufficient to bring home the charge. So non-examination of some neighbours who according to the F.I.R. rushed to the spot immediately after the incident or failure on the part of a witness who according to the F.I.R. was an eye-witness to the incident would not be fatal for the prosecution. It is well settled that credibility of testimony, oral, circumstantial depends on a judicial consideration of totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be in all criminal case, it is not necessary that it should be perfect by examining all the eye-witnesses disclosed in the F.I.R. and all other probable witnesses who have been mentioned in the F.I.R. 9. Here we should point out that the incident complained of has been clearly disclosed by the evidence of the informant PW.1, Sher Ali Mahaldar who clearly stated in his evidence that on the date of incident in the morning while he with his elder brother and some others were proceeding, they were attacked by the accused/appellants along with another. He clearly indicated that in that incident appellant Sahadeb and appellant Kasia attacked his elder brother with Ballam and Chheni. They inflicted several injuries on the different parts of his body. He stoutly denied specific allegation offered by the defence that the appellants were falsely implicated in the case due to enmity. He clearly indicated that in that incident appellant Sahadeb and appellant Kasia attacked his elder brother with Ballam and Chheni. They inflicted several injuries on the different parts of his body. He stoutly denied specific allegation offered by the defence that the appellants were falsely implicated in the case due to enmity. His evidence to this effect gets corroboration from the evidence of other eye-witnesses, namely, PW.6 Ekbar Mahaldar. Here we must pause for a moment to point out that it was argued on behalf of the defence that in the F.I.R., the name of the witnesses, namely, PW.6 Ekbar Mahaldar did not find place, so no reliance should be placed on the evidence of PW.6. But we do not find any force behind such argument. Admittedly, in the instant case F.I.R. was lodged soon after the incident. In the F.I.R., there is nothing to show that this particular Ekbar did accompany the informant and others to the police station when they had been to the P.S. for the purpose of lodging the F.I.R. But it is not unnatural that the informant who witnessed the gruesome murder of a near relation only minutes before the information would forget to mention the name of one who also accompanied them to the spot just prior to the incident. This would not seriously prejudice, the prosecution case in view of the fact that the witness, namely, PW.6 in his evidence clearly stated that he was also in the party when the informant and his elder brother, victim and others were going and he witnessed the incident. There was no serious challenge through the cross-examination to such a witness challenging the very assertion that he was not with the informant and the victim and therefore could not by an eye-witness to the incident. On the other hand, an attempt was made from the side of the defence to take a contradiction between the statement of the witness before the police and his evidence before the court by pointing out that he disclosed before the police that the incident complained of took place in front of the house of one Charu Babu (PW.8). On the other hand, an attempt was made from the side of the defence to take a contradiction between the statement of the witness before the police and his evidence before the court by pointing out that he disclosed before the police that the incident complained of took place in front of the house of one Charu Babu (PW.8). We find from the evidence of PW.11, S.L, M.N. Bose who practically investigated the case but due to transfer could not submit the chargesheet that PW.6 on being examined by him stated before him that the appellants murdered the victim in front of the house of Narungalal Agarwal. Here we should also point out that the learned defence lawyer tried to create suspicion in our minds about the presence of this witness by pointing out that in his evidence PW.1 stated that at the time incident one Akbar was present and PW.6 who claimed himself to be an eye-witness was. We have already pointed out that PW.6 deposed as an eye-witness to the incident asserting further that he was one of the companions of PW.1 when the incident complained of took place and no attempt was made from the side of the defence to demolish that portion of the evidence. Therefore, only conclusion which can be drawn here is that Akbar and Ekbar is one and the same person. 10. Learned Advocate for the appellant has next argued that although the F.I.R. which was lodged immediately after the incident, the names of we appellants were mentioned but in the inquest report at Page-5 of Paper Book names of miscreants were not mentioned. His specific argument on this point is that due to the absence of the names of the persons responsible for the incident in the inquest report, the entire prosecution case implicating the accused with the offence complained of should be subjected to strong suspicion. Here also we do not find any reason to accept such an argument. In the case of Podda Narayana & Ors. vs. State of Andhra Pradesh reported in 1975 Crl. Law Journal 1062, the Hon'ble Apex Court dealt with the question of the scope of the inquest report and observed as follows :- "A perusal of this provision would clearly show that the object of the proceedings under section 174 Cr. In the case of Podda Narayana & Ors. vs. State of Andhra Pradesh reported in 1975 Crl. Law Journal 1062, the Hon'ble Apex Court dealt with the question of the scope of the inquest report and observed as follows :- "A perusal of this provision would clearly show that the object of the proceedings under section 174 Cr. P. C. is merely to ascertain whether a person had died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of such death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under that circumstances he was assaulted appears to us foreign to the ambit and scope of the proceeding under section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report." 11. The learned Advocate for the appellant had also tried to submit in his argument very sincerely that in course of the evidence, the P.O. of the incident has been shifted. On this point he has referred the F.I.R. which is marked Ext.1 in connection with the Sessions Trial. In such F.I.R., the informant alleged that the victim was attacked on the pucca road (Dhuliyan-Pukur Road) when the victim along with others were proceeding towards a junction called C.G. Patel More. The F.I.R. further disclosed that the victim was first attacked in front of the shop of Charu Babu. According to the submission of the learned Advocate, in spite of the specific allegation made in the F.I.R., evidence has been led to show that the assault on the victim was launched in front of the house of Biju Agarwal and Narungilal Agarwal. But in our considered opinion, if we take the allegations made in the F.I.R. as well as the evidence from the side of the prosecution as a whole, there is no reason for us to come to a conclusion regarding the shifting of the P.O. In the F.I.R. it has been clearly stated that the victim was attacked in front of the shop of Charu Babu and the victim fell down dead on being assaulted, with bleeding injuries in front of the house of Narungilal Agarwal. So according to the F.I.R., the victim was attacked in front of the house of Charu Babu but the body of the victim was laying in front of the house of Narungilal Agarwal. From the evidence of PW.6, Ekbar Mahaldar, we find that Charu Babu's house is about 15 cubits away from the house of Narungilal Agarwal. So it can be said that both the houses are situated in the same vicinity. From the evidence ofPW.8, the said Charu Babu himself, we find that the victim was lying just below the foot step of the house of Narungilal Agarwal. PW.8 further disclosed in his evidence that he heard a halla on the date of incident and hearing the same he came out of the house of Narungilal Agarwal. There is a consistent evidence of the other PWs. that they found the body of the victim lying in front of the house of Agarwals. 12. We have already seen that the death of the victim at the hands of the appellants have been clearly established by the evidence of two eye-witnesses PW.1 and 6 and the doctor who held the p.m. examination over the dead body of the victim, on the very date of incident found the following injuries :- i. One incised wound 4" x 2" bone deep on right elbow joint laterally. ii. One incised wound 2" x 1/2" muscle deep on right upper part of neck. iii. One incised wound l1/2" x 1/2" x 1/2" on the left forearm. iv. One punctured wound 1" x 1/2" cavity deep on left 7th interior costal space of the level of anterior fold of axilla. On-dissection left lung is found perforated at the upper lobe and throasic cavity contained about 8 ozs. of blood with clot. v. One punctured wound 1" x 1/2" cavity deep on right axilliary region middle part at 4th inter costal space. vi. One punctured wound 1" x 1/2" x 1" on right side on back (lower part). vii. One punctured wound 1" x 1/2" cavity deep on back at left inter costal space 2" lateral from midline. The evidence of the doctor in this way fully corroborated the ocular statement furnished by the eye-witnesses PW.1 and 6 that the appellants launched assault on the victim by Ballam and a sharp cutting weapon like Chheni. vii. One punctured wound 1" x 1/2" cavity deep on back at left inter costal space 2" lateral from midline. The evidence of the doctor in this way fully corroborated the ocular statement furnished by the eye-witnesses PW.1 and 6 that the appellants launched assault on the victim by Ballam and a sharp cutting weapon like Chheni. We have also seen that there is no infirmity in the evidence of these eye-witnesses, in this way it can be said that the evidence led by the prosecution is reliable and trustworthy. The learned Advocate for the appellant commented on non-examination of one seizure list witness and regarding some minor discrepancies here and there in the evidence adduced by the prosecution witnesses of which we are of the opinion that this cannot go to the root of the allegation raised against the appellants to shake the basic version •of the prosecution case. 13. In the result, we find, that there is no necessity to interfere with the judgment, order of conviction and sentence passed by the learned Additional Sessions Judge. The appeal must fail. Appeal is dismissed. The appellants who are in jail should be informed about the disposal of the appeal, sending a copy of the judgment. Appeal fails and dismissed.