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2002 DIGILAW 561 (CAL)

Ketab Sk. v. State

2002-08-22

Nure Alam Chowdhury, Sadhan Kumar Gupta

body2002
JUDGMENT Sadhan Kumar Gupta, J.: This Criminal Appeal arises out of the judgment dt. 27.05.1997 passed by the learned Additional Sessions Judge, 2nd Court, Murshidabad wherein he convicted the appellants and sentenced them to suffer imprisonment of life for the offence under sections 302/149 I.P.C. and to pay fine of Rs. 10.000/- each Ld. to suffer R.I. for one year. They have been further sentenced to suffer R.I. for two years each for the offence under section 148 I.P.C. and in addition to that the appellants have been sentenced to suffer R.I. for six months each for the offence under section 448 I.P.C. 2. The case of the appellants is that on 24.7.90 at about 7.15 a.m. a written complaint was submitted by one Khabiruddin Seikh before the Officer-in-Charge, Hariharpara Police Station stating therein that on 23.07.90 at about 9.00 p.m. the complainant and his family members after finishing dinner were in their rooms and varanda. Thereafter, at about 12.30 a.m. 8/10 persons armed with bomb, pistol, lathi etc. trespassed in the house of the complainant and threatened him. Some of them broke the door of the room situated on the south eastern side of his house and hurled bomb after entering into the said room. Thereafter those persons shot Abdul Rajjak, the son of the complainant from their firearms. The complainant could recognise accused Rejaul Seikh and Ketab Seikh with the help of the light of a lamp. Due to the injury of Abdul Rajjak, the son of the complainant died on the spot and the miscreants fled away. When the villagers came to that house, the complainant and the inmates of his house narrated the incident to them. According to the complainant, the accused persons out of grudge caused the death of Abdul Rajjak. On the basis of the said written complaint, present case was started. The case was investigated and after completion of the investigation chargesheet was submitted against the accused persons. During trial, charges were framed and the same were read over and explained to the accused persons who pleaded not guilty to the charges and claimed to be tried. Defence case, as it appears from the trend of cross-examination as well as from the statement made under section 313 Cr.P.C. is that they have been falsely implicated in this case. During trial, charges were framed and the same were read over and explained to the accused persons who pleaded not guilty to the charges and claimed to be tried. Defence case, as it appears from the trend of cross-examination as well as from the statement made under section 313 Cr.P.C. is that they have been falsely implicated in this case. Prosecution in all has examined 15 witnesses in order to prove charges against the accused persons. Defence has not examined any witness. 3. We have already pointed out that after considering the evidence on record, the learned Court below convicted the accused persons under sections 148/448/ 302 read with section 149 I.P.C. It may be mentioned here that before the learned Trial Court four accused persons including the present appellants faced the trial. The learned Additional Sessions Judge, convicted the present appellants while acquitting the other two accused persons. The point that is to be considered, so far as the present appeal is concerned, is, whether the learned Court below was justified in convicting the present appellants. 4. In order to prove its case the prosecution has in all examined 15 witnesses. Out of them PW-1 Abdul Sadek, PW.2 Mir Sayed Ali, PW-3 Golam Rashul are the local witnesses. But all of them turned hostile and as such they were cross-examined by the prosecution. All of them have stated that they found Abdul Rajjak lying dead in the house. PW-1 and PW-4 are the witnesses in whose presence the seizure list and inquest report were prepared. PW-4 is Md. Abdul Kader. He was also present at the time of the inquest. PW-5 Ajem Ali has stated in his evidence that on the night of incident, after hearing a hue and cry and sound of bombs he along with others went to the house of the victim and found Rajjak lying dead in his room. He has stated that on his query, Kalam, brother of the victim reported that accused Ketab and Rejaul committed the murder by firing. PW-6 is Sushil Kumar Das, the home guard who identified the dead body of the Rajjak before the Doctor. PW-7 is Doctor A.K. Maitra who held Post Mortem examination on the dead body of the victim. PW8 is Jahangir Seikh. PW-6 is Sushil Kumar Das, the home guard who identified the dead body of the Rajjak before the Doctor. PW-7 is Doctor A.K. Maitra who held Post Mortem examination on the dead body of the victim. PW8 is Jahangir Seikh. Like the PW-5 he also stated that on that night when he went to the house of the victim he found him lying dead and he came to know from the parents as well as from the wife and brother of the deceased that accused Ketab and Rejaul murdered Rajjak by firing. He also signed in the inquest report as well as was present at the time of seizure and singed in the seizure list. PW-9 is Adora Bewa, the wife of the victim, PW-10 Harun Rashid the cousin brother of the victim, PW-11 Alkuma Bibi, the mother of the victim and PW-12 Abdul Kalam, the brother of the victim are the eye-witnesses who have stated that accused Ketab and Rejaul along with others trespassed into their house on that night, hurled bombs and caused murder of the deceased Rajjak by firing. PW-13 is Abu Bakkar. According to this witness, on that day after hearing a sound of explosion of bombs he woke up and when he went to the house of the de facto complainant at that time the offenders fled away. He found Rajjak lying dead with bullet injuries on his person. According to this witness Khabiruddin the father of the deceased, Kalam and other inmates of the house reported him that the accused persons and others committed the said murder. PW-14 Setara Khatoon. She is the sister of the deceased. She has stated that on that night she woke up by hearing the sound of firing and found that about 8/10 persons who were in the courtyard were fleeing away. She found that her brother Rajjak was lying dead with bleeding injuries. She has further stated that her father told her that the accused persons committed the murder of Rajjak by firing on him. She has proved the F.I.R. which was written by Abu Taleb. From her evidence it has transpired that her father, who lodged F.I.R, died during the trial. She has further stated that Abu Taleb who wrote the F.I.R. could not be examined in the case as he was threatened by the accused persons. PW-15 is S.I. Pradip Kumar Dam. She has proved the F.I.R. which was written by Abu Taleb. From her evidence it has transpired that her father, who lodged F.I.R, died during the trial. She has further stated that Abu Taleb who wrote the F.I.R. could not be examined in the case as he was threatened by the accused persons. PW-15 is S.I. Pradip Kumar Dam. He is the Investigating Officer in this case. 5. So, it appears that PW-9 Adora Bewa, who is the wife of the deceased, is the most important witness for the purpose of this case. She has stated in her evidence that on the fateful night she was sleeping on the varanda of the east facing room, as fifteen days prior to that she gave birth to a child. According to her, due to the local custom she was not allowed to sleep inside the room immediately after the birth of the child. There is nothing to disbelieve the statement of this witness on this point. She has further stated that her husband, the deceased of this case, was sleeping in the south facing room. According to her there was a lamp near her and the said lamp was placed in that condition as because she recently gave birth to a child. She has stated that at about 00.30 hours, 8/10 persons trespassed into the said house and they broke open the room where her husband was sleeping. She has stated that those persons were armed with pistol, bombs etc. She has stated further that out of them she could identify accused Rejaul and Ketab who are residents of the same village. This witness clearly stated that she could identify those two persons by the said burning lamp. According to this witness accused Rejaul and Ketab committed murder of her husband by firing. It further appears from her evidence that at the time of their retreat, they hurled bombs and as a result of that her bhasur Harun Rashid sustained injuries on his leg and face. She has also stated that he narrated the incident to the persons who came to the spot immediately after the occurrence. Statement of this witness has been corroborated by the evidence of PW-10, PW-11 & PW-12. PW-10 is Harun Rashid. He is the cousin brother of the deceased. She has also stated that he narrated the incident to the persons who came to the spot immediately after the occurrence. Statement of this witness has been corroborated by the evidence of PW-10, PW-11 & PW-12. PW-10 is Harun Rashid. He is the cousin brother of the deceased. He has stated in his evidence that on that night he came to the place of occurrence after hearing sound of bombs and firing. When he entered into the house he found accused Rejaul and Ketab present there along with others whom he could not recognise. He has claimed that those persons hurled bombs towards him and as a result of that he sustained injuries. This witness has also stated that he was sent to Berhampur Hospital where he was admitted for seven days. From his evidence it also transpired that he found that Abdul Rajjak was lying dead being injured by firing. Learned Advocate for the appellant argued that in order to substantiate the claim that this witness sustained injuries on the date of incident, prosecution has failed to produce any medical paper whatsoever to prove this claim. It is correct that there is no such medical paper available in the record. But at the same time if we look into the evidence of the PW-9, the wife of the deceased then it will appear that she also clearly stated that this PW-10 sustained injuries on his person as a result of bursting of bombs. The claim of this PW-10 in this respect finds support from the other witnesses. That apart if we look into the evidence of the PW-15 S.I. Pradip Kumar Dam who is the I.O. of this case, then it will appear that in his cross-examination by the defence he clearly stated to the effect "I collected the injury report in respect of PW-10 Harun Rashid." It is surprising that inspite of that the prosecution did not take any step for taking those medical reports into evidences during trial. It is certainly a laches on the part of the prosecution. But simply for that reason the substantive evidence of the PW-10 that he was medically treated for the injury sustained by him allegedly caused by the accused persons, cannot be left out of consideration. It is certainly a laches on the part of the prosecution. But simply for that reason the substantive evidence of the PW-10 that he was medically treated for the injury sustained by him allegedly caused by the accused persons, cannot be left out of consideration. We have already pointed out that there is ample corroboration regarding this claim of the PW-10 that he was injured on the date of incident. As such the fact remains that the statement of the PW-9 that PW-10 was injured by the accused persons and others on that day, by throwing bombs, finds corroboration and we find no reason to disbelieve the statement. 6. The learned Advocate for the appellant further argued that the PW-9 has claimed that by the help of the lamp she could identify accused Rejaul and Ketab. According to the learned Advocate, it is the admitted position that the incident took place during the dead of night and as such it was not possible for the PW-9 to identify the accused persons amongst 8/10 other persons who allegedly trespassed into the said house. In support of this contention he has cited the decision reported in AIR 1983 Supreme Court at page 349. We have carefully considered the said decision and it appears to us that the fact of the said case is completely different with that of the present case and as such to our mind the ratio decided in that case by the Hon'ble Supreme Court is not at all applicable so far as the present case is concerned. In the case before the Hon'ble Supreme Court it was decided that it was difficult for a person to identify a particular accused from a mob of 14/15 persons at the dead of night with the help of tiny kerosene lantern. The Hon'ble Court was of the view that it was highly unlikely that the accused would continue to remain at the scene of offence after committing the murder. But so far as the present case is concerned we find that there is ample evidence to show that even after the offence was committed the accused persons and others were very much there and at the time of their retreat they were bursting bombs and it was not unlikely that at that time also the PW-9 could easily recognise them by the help of a lantern. We must keep in mind that the accused/appellants are the co-villagers of the PW-9 and as such there should not be any difficulty for the PW-9 to recognise a co-villager even at the dead of night with the help of a small lamp. Moreover, we find from the evidence of the PW-9 that she further claimed that she could identify the appellants by their voice also. True it is that this statement was not made before the I.O. at the time of investigation. But that cannot be a ground for ignoring the statement totally. As a co-villager, it is most likely that the PW-9 would be acquainted with the voice of the accused persons. Be that as it may, when there is nothing wrong in the statement of the PW-9 that she definitely could identify the accused persons with the help of a lamp, we find no reason to disbelieve this statement of the PW-9 that in addition to that she also could identify the accused persons by their voice. Learned Advocate for the appellants further argued that it was not possible for the PW-9 to say as to who amongst the accused persons actually fired the deceased. But if we look into the evidence of PW-9 then it will appear that she categorically claimed that it was the appellants who actually fired the victim. We must not forget that this PW-9 is the wife of the deceased and naturally it is unbelievable that she would depose falsely against the accused persons leaving aside the actual culprit. 7. I have already pointed out that besides PW-9, PW-10, PW-11 and PW-12 also witnessed the incident. PW-10, as we have mentioned earlier, has categorically stated that he found these two accused persons amongst others when they were running away from the place of occurrence. The evidence of this PW-10 regarding his presence at the material time in the house has been supported by the evidence of PW-9. If we look into the evidence of PW-11 Alcuma Bibi, the mother of the victim, then it will appear that she in her evidence has also stated that she found these two appellants along with others in the house and were committing murder of her son. She has further stated that they fled away after hurling bombs. If we look into the evidence of PW-11 Alcuma Bibi, the mother of the victim, then it will appear that she in her evidence has also stated that she found these two appellants along with others in the house and were committing murder of her son. She has further stated that they fled away after hurling bombs. This witness is the mother of the victim and we find no reason to disbelieve her statement to the effect that she could recognise the appellants who were present in the said house at the time of incident. May be the statement of this witness that she found these accused persons murdered her son by pistol appears to be a bit exaggerated one. But that does not mean that her statement that these appellants were present at the time of incident should be disbelieved particularly when there is corroboration from the statements from other witnesses. Like these witnesses the evidence of the PW-12 is also very important. He is the brother of the victim. He has also stated that on that night he could identify the appellants and others with the help of a lamp. According to him when the door of the room, where the victim was sleeping, was broken, at that time he found these two appellants fired at Rajjak causing his death. He has further stated that the miscreants hurled bombs at the time of their retreat and he narrated the incident to the villagers when they came to the spot afterwards. The statement of this witness as well as the statement of the PW-9 and PW-10 remained unshaken even in cross-examination and we find nothing to disbelieve their evidence. 8. Much has been argued by the learned Advocate for the appellants regarding the exact position of the room where the incident took place. According to the learned Advocate for the appellants, from the evidence of the PWs it is not possible to locate the actual place of incident. But without going into the matter regarding the actual topography of the place of occurrence, it can be said that the incident took place in the house of the PW-9 and she has categorically stated that in front of the room of her husband which was south facing, she was sleeping in the varanda of another room along with the newly born baby. We find no reason to disbelieve the statement of this house-wife whose husband has died as a result of the incident. It is not that the deceased and his family members were living in a palace. It was a small house and naturally it is not difficult for a wife to say as to in which room the actual incident took place. We should not burden our discussion regarding the fixing of the position of the actual room in the house for connecting the same with the incident. If there is any confusion regarding the topographical position of the room where the incident took place, in our opinion, it should be overlooked, simply because there was no confusion in the statement of the PW-9, in locating the actual room where the incident took place. As such we do not attach any importance to this argument of the learned Advocate for the appellant. 9. Learned Advocate for the appellants further argued that in the F.I.R. the father of the deceased has stated that on that night the miscreants came to him and threatened him with a pistol and thereafter entered into the room of the deceased and committed the offence. According to the learned Advocate this part of the statement in the F.I.R. does not find place in the evidence of the PW-9 who is the wife of the deceased. So, the learned Advocate argued that due to this material contradiction in the F.I.R. with that of the statement made by the PW-9 in her evidence, it should be presumed that there is room for doubt regarding the genuineness of the prosecution case. He has further pointed out that the F.I.R. maker has not been examined in this case nor the person who wrote this F.I.R., leaving the scope for suspicion regarding the prosecution case. But if we look into the evidence of PW-14 Setara Khatoon then it will appear that she has categorically stated that during the midst of the trial, her father, the F.I.R. maker expired. She has also stated that the person who wrote the F.I.R. namely Abu Taleb could not be examined as he was threatened by the accused persons. This claim of the PW-14 does not appear to us to be unbelievable under the present day condition. She has also stated that the person who wrote the F.I.R. namely Abu Taleb could not be examined as he was threatened by the accused persons. This claim of the PW-14 does not appear to us to be unbelievable under the present day condition. As such, we find no reason to disbelieve the prosecution case due to the non-examination of the F.I.R. maker as well as the person who wrote the F.I.R. It is correct that there is discrepancy in the statement made in the first part of the F.I.R. with that of the first part of the evidence of PW-9. But that discrepancy, to our mind, appears to be minor one and should be overlooked. The incident took place in the dead of night and it is quite natural that the father of the deceased was confused and made some statements. There is nothing wrong in the statement of the father of the deceased in the F.I.R. to say that the accused persons first threatened him. PW-9 simply stated that she found the accused persons and others to broke open the door of her husband. There is practically no contradiction in between these two statements. If we look into the other parts of the F.I.R. then it will appear there is substantive corroboration in the statement made in the F.I.R. with that of the statement made by the PW-9 in her evidence. Learned Advocate for the appellants further argued that from the statement of the PW-14, it appears that there was discussion amongst the inmates of the house prior to the lodging of the F.I.R. For this reason the learned Advocate argued that this F.I.R. was made after much discussion and thinking and as such it should not be relied upon. But we are unable to agree with this argument of the learned Advocate for the appellant. The incident that took place in that house was highly serious in nature and as a result of that a young man of that house died due to gun shot injury. Naturally it could be presumed that the inmates of that house were perplexed and if there was any discussion amongst them prior to the lodging of the F.I.R. then it cannot be said that the said F.I.R. was an after thought. Naturally it could be presumed that the inmates of that house were perplexed and if there was any discussion amongst them prior to the lodging of the F.I.R. then it cannot be said that the said F.I.R. was an after thought. As such, we find no reason to disbelieve the statements made in the F.I.R. as claimed by the learned Advocate for the appellant. 10. We have already pointed out that the PW-9, PW-10, PW-11 & PW-12 they all clearly stated about the role played by the accused persons in committing the murder of the deceased. We find no reason to disbelieve their evidence. If we look into the evidence of the PW-5, PW-8 & PW-13 then it will appear that they came to the place of occurrence immediately after the incident. They have categorically stated that they heard from the PW-9, PW-10 and others that it was these two accused persons along with others who committed murder of the deceased. The PW-9 has stated in her evidence that she narrated the incident to the PW-5 & PW-8 when they reached there. True it is that the I.O. has stated in his evidence that the PW-9 did not made such a statement before him during investigation. But we can safely presume that the statement of the PW-9 was recorded immediately after the incident and there cannot be any doubt that during that period the PW-9 who is the wife of the deceased, was in a complete stage of mental shock. As such, it was not possible for such a witness to give an elaborate statement mentioning all the facts before the investigating officer. It is most natural that there should be some omission in her statement before the I.O. The main thing that is to be considered is, whether she had stated the material fact before the I.O. or not. If we look into her evidence then it will appear that she made a detail statement regarding the actual incident before the La. The PW.5, PW.8 & PW.13 are the neighbours of the PW-9. There is no dispute on that point and practically there is no cross-examination also. It is most likely that these PWs would come to the P.O. immediately after the incident and would enquire from the PW-9 and others about the incident. The PW.5, PW.8 & PW.13 are the neighbours of the PW-9. There is no dispute on that point and practically there is no cross-examination also. It is most likely that these PWs would come to the P.O. immediately after the incident and would enquire from the PW-9 and others about the incident. So we find nothing to disbelieve the claim of those PW-5, PW-8 and others that they heard from the PW-9 it was the accused persons who actually committed murder of the deceased. 11. Learned Advocate for the appellant argued that PW-1, PW-2, PW-3 and PW-4 although are the neighbours of the PW-9, did not support the prosecution case and as such according to him from the evidence those witnesses a room for doubt remains regarding the genuineness of the prosecution case. If we look into the record, then it will appear that as these witnesses did not support the prosecution case, so they were declared hostile. Learned Advocate for the appellant cited a decision reported in 2001 Supreme Court Cases (Cri.) at page 323 wherein it has been decided that merely because a witness is declared hostile his entire testimony cannot be excluded from consideration. It is the well settled principle of criminal justice and naturally there is no scope for disagreement with the ratio decided in this case by the Hon'ble Apex Court. If we look into the evidence of these witnesses then it will appear that these witnesses also could not deny the fact that when they reached the place of occurrence they found that the Abdul Rajjak was lying dead after sustaining serious injuries. So the fact remains that these witnesses could not deny that there was an incident as alleged by the prosecution and as a result of that Abdul Rajjak died. There may be various reasons for these witnesses in not supporting the entire prosecution case. But simply for that reason, it cannot be said that on the basis of the statements made by the hostile witnesses, entire prosecution case should be disbelieved. We have already pointed out that there is ample evidence-on-record to show the involvement of these two appellants in the murder of the deceased Abdul Rajjak. But simply for that reason, it cannot be said that on the basis of the statements made by the hostile witnesses, entire prosecution case should be disbelieved. We have already pointed out that there is ample evidence-on-record to show the involvement of these two appellants in the murder of the deceased Abdul Rajjak. When there is overwhelming materials-on-record regarding the involvement of the accused in this case, then we find no reason to disbelieve the prosecution case simply because some of the witnesses have turned hostile so far as the present case is concerned. 12. Learned Advocate for the appellant further argued that PW-9, PW-10, PW-11 are highly interested witnesses as because they are the close relatives of the deceased and as such according to him their statements should not be believed. But we regret we cannot agree with this argument. There is no such law that simply for that reason their evidence should be discarded. The incident took place in the house of the PW-9 at the dead of the night and it is most likely that these witnesses namely viz. PW-9, PW-10, PW-11 and PW-12 will be present there. It is unthinkable that in the dead of night when the incident took place, the neighbours will be present in the house to witness the incident. As such it must be said that these witnesses are the most natural witnesses to see the incident and we find nothing wrong in their statements. Simply because they are the close relatives of the deceased there should not be any reason to disbelieve their statements. In this respect, we fully agree with the finding of the learned Court below. 13. The learned Advocate for the appellant further argued that due to village rivalry the accused persons have been falsely implicated in this case. In order to substantiate this claim he has cited the statement made by the PW-9 wherein she also admitted that due to village rivalry the accused persons committed the murder of her husband. But simply because there was a village rivalry, it cannot be said that for that reason the PWs falsely implicated the accused persons in this case. We must not forget that the PW-9 is the wife of the deceased and it is unbelievable that such a witness would implicate the accused persons falsely in this case due to village rivalry leaving aside the actual culprit. We must not forget that the PW-9 is the wife of the deceased and it is unbelievable that such a witness would implicate the accused persons falsely in this case due to village rivalry leaving aside the actual culprit. It is against the normal human behaviour. As such, we are not convinced with this argument and so we reject the same. 14. Therefore, from our above discussion, we are of opinion that the prosecution has been able to prove beyond any reasonable shadow of doubt that it was these accused persons viz. Rejaul and Ketab who actually committed the murder of Abdul Rajjak, along with others after trespassing into the house of the PW-9. We are of the opinion that the learned Trial Court was perfectly justified in holding that the accused persons formed an unlawful assembly, trespassed into the house of the PW-9 and committed the murder of the deceased in furtherance of their common object and as such he was perfectly justified in holding the accused persons guilty of the offences charged with. The sentence, as imposed by the learned Court below on the accused persons, appears to be perfectly justified and we find no reason to interfere with the decision and finding of the learned Court below. Considering all these things, the appeal is dismissed and the judgment and order of conviction and sentence, as passed by the learned Court below, is confirmed. The accused persons, if on bail, are directed to surrender before the learned Court below at once. Send a copy of this judgment along with the L.C.R. to the Court below immediately. Nure Alam Chowdhury, J.: I agree. Appeal dismissed.