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2004 DIGILAW 699 (CAL)

RASHID SK. v. STATE OF WEST BENGAL

2004-10-14

ARUN KUMAR, BHASKAR BHATTACHARYA

body2004
BHASKAR BHATTACHARYA, J. ( 1 ) THIS appeal is at the instance of a convict and is directed against a verdict of guilt dated November 21,1998 and the consequent sentence imposed on 26th November, 1998, by the Additional Sessions Judge, 2nd Court, Murshidabad by which the appellant has been found guilty on the charge under section 302 of the Indian Penal Code and has been sentenced to life imprisonment in addition to a fine of Rs. 5000/- and in default of payment, to a further rigorous imprisonment for six months. ( 2 ) THE appellant along with eleven others were indicted, inter alia, for committing murder of one Safatulla Sk. On the basis of allegations made in the fir, charges under sections 148/149/302 read with section 34 of the Indian penal Code were framed against all the accused persons. Two of them, however, died during the pendency of the proceedings. ( 3 ) THE case made out by the prosecution may be summed up thus: on 12th August, 1991, at about 7 a. m. , the de facto complainant, viz. Fareshtulla Sk. , being accompanied by his brother, Safatulla Sk. , the victim, went to the house of one Kabatullah Sk. , another brother of the deceased, for the purpose of taking buffaloes belonging to. Kabatulla in order to plough up their agricultural lands. At that point of time, all the accused persons trespassed into the courtyard of the house with hensua, satar, bomb, pipe gun etc. No sooner had the victim seen those accused persons, than he tried to run away towards the staircase when the present appellant shot him from his musket in front of the staircase on his back side. Due to such gunfire, the deceased died on the spot. The informant of the aforesaid incident, namely, Fareshtulla Sk. , also sustained bleeding injury on his right arm and right side of the chest from the bomb hurled towards him. ( 4 ) AT the time of trial, eleven persons deposed in support of the prosecution case. The accused persons were examined under section 313 of the Code of criminal Procedure ("code" ). They, however, decided not to lead any evidence in support of their defence. ( 4 ) AT the time of trial, eleven persons deposed in support of the prosecution case. The accused persons were examined under section 313 of the Code of criminal Procedure ("code" ). They, however, decided not to lead any evidence in support of their defence. ( 5 ) BY the order impugned herein, the learned Additional Sessions Judge found that the prosecution had failed to prove charges against all other accused persons than the appellant herein and accordingly, discharged them. So far the appellant is concerned, he was acquitted in respect of the charges under sections 148,149 and 34 of the Indian Penal Code, but was found guilty of murder and consequently, the sentences, mentioned earlier, were inflicted. ( 6 ) BEING dissatisfied, the appellant has come up with the present appeal. ( 7 ) MR. Roy, the learned Advocate appearing on behalf of the appellant has attacked the order impugned on threefold grounds. ( 8 ) FIRST, he has contended that in arriving at the conclusion that the appellant was guilty of murdering the deceased, the learned Additional Sessions Judge erred in law in solely relying upon the testimony of PW-1 and PW-4 which are at variance with the evidence given by the PW-2 and other witnesses for the prosecution. ( 9 ) SECONDLY, Mr. Roy contends that in the present case even the descriptions of the firearm allegedly used by the appellant as given by the PW-1 and PW-4 arc contradictory and there was no other witness who could assert that the appellant actually fired at the deceased. ( 10 ) MR. Roy lastly contends that the learned Additional Sessions Judge even did not put any specific question to the appellant while examining him under section 313 of the Code of Criminal Procedure as regards his involvement in the alleged crime and such irregularity has occasioned failure of justice vitiating the entire trial. ( 11 ) MR. Mukherjee, the learned Counsel appearing on behalf of the prosecution has on the other hand supported the order of conviction. According to Mr. Mukherjee, the learned Additional Sessions Judge on consideration of the entire materials on record having believed the evidence of PW-1 and PW-4, this Court should not upset such findings. Mr. ( 11 ) MR. Mukherjee, the learned Counsel appearing on behalf of the prosecution has on the other hand supported the order of conviction. According to Mr. Mukherjee, the learned Additional Sessions Judge on consideration of the entire materials on record having believed the evidence of PW-1 and PW-4, this Court should not upset such findings. Mr. Mukherjee contends that there is no bar in upholding conviction on the basis of even sole eye-witness and as such, there is no justification of setting aside the findings recorded by the learned additional Sessions Judge. ( 12 ) AS regards the defects in framing questions under section 313 of the code, Mr. Mukherjee contends that the appellant has not been prejudiced in any way and as such, this Court should ignore such defect. According to Mr. Mukherjee, even if there is any mistake on the part of learned Additional sessions Judge in not putting appropriate question, in such a case, the Court can, at the most, remand the matter for the purpose of rectification of such mistake. Mr. Mukherjee, thus, prays for dismissal of this appeal. ( 13 ) THEREFORE, the only question that arises for determination in this appeal is whether in the facts of the present case the learned Additional Sessions judge was justified in finding the present appellant guilty of murder and awarding the abovementioned sentences. ( 14 ) AFTER hearing the learned Counsel for the parties and after going through the materials on records I find that out of the eleven prosecution witnesses, only three claimed to be eye-witnesses of the incident, viz. PW-1, PW-2 and pw-4. Of the above three persons, the Court declared PW-2 to be hostile on the prayer of the prosecution. ( 15 ) THE PW-1, the author of the FIR, in his deposition has clearly asseverated that he along with the deceased, his brother, went to the house of PW-2, another brother of the informant and the victim, for the purpose of fetching buffaloes and at the time when he along with the deceased were talking to PW-2, all the 12 accused persons entered into the house of the PW-2 with deadly weapons. According to the PW-1, the deceased "tried to escape from the house of Kabatulla" but could not succeed as the appellant shot him from his musket and such shot struck on the back of the deceased piercing his body and he fell down "spot-dead" on the staircase. In cross-examination, he however narrated a different story that Safatulla to save himself tried to move upstairs and was shot while he was on the 3rd step of the staircase. Therefore, while in examination-in-chief he tried to make out a case that Safatulla tried to escape from the house of kabatulla, but in cross-examination, his version was that the victim tried to run away to the first floor. According to this witness, after that incident, Basir sk. , since deceased, threw bomb towards him which exploded on his face, as a result, he was injured and thereafter, all the accused persons fled away. According to PW-1, after that incident, Yamin and others came to the spot and they took him to the hospital. At this stage, it may not be out of place to mention here that in FIR, he never disclosed that the bomb exploded on his face but he maintained that the bomb injured him on his right arm and right side of his chest. The PW-8, the doctor who treated him in the hospital, in his evidence has disclosed four injuries on the body of PW-1, namely, one on the chest, one below right shoulder, the third one on the right forearm and the other on the neck. In cross-examination, the said doctor admitted that he could not definitely say that PW-1 received bomb injury. The PW-1 although asserted that the appellant fired at the deceased from behind but PW-10, the doctor who performed post-mortem examination, opined that the deceased was shot from the side. ( 16 ) THE PW-1, neither in the FIR nor in his deposition indicated the presence of PW-4, the son-in-law of the victim, at the time of the alleged incident; on the other hand, he specifically stated that he along with the deceased went to the house of PW-2 to take the buffaloes and they were talking to PW-2 at the time of incident and that was also the version of the PW-2 who never mentioned the presence of PW-4 at the time of incident. ( 17 ) THE definite evidence given by PW-1 is that the appellant shot at the victim first and then, Basir Sk. , injured him by hurling a bomb on his face and thereafter, Yamin and others came to the spot and took him to the hospital. ( 18 ) PW-2, Kabatulla, another brother of the victim, in whose house the incident occurred, has, however, come forward with a different story. According to him, while he was talking to the PW-1, and the victim was talking to his wife, all the accused persons entered the house and Basir Sk. threw bomb towards PW-1 resulting in his injury, and in the midst of the smoke created by the explosion of the bomb, he heard the sound of firing. He did not claim to have seen the appellant to fire at the deceased. At that stage, the prosecution prayed for declaring him hostile. ( 19 ) ALTHOUGH the PW-2 was declared hostile, the prosecution did not cross-examine the said PW-2 on all points. The prosecution only disputed the statement of the said PW-2 that he did not see the appellant to fire at the deceased. But the statements of the said witness that PW-1 was first injured and then he heard the sound of fire or that the deceased was shot in the presence of his wife had not been disputed by the prosecution by giving any suggestion to the contrary. Therefore, the aforesaid two statements made by the PW-2 have not been disputed by the prosecution. It is now settled law that even if a prosecution witness is declared hostile, his entire evidence cannot be discarded and only that portion of the evidence which has been disputed by the prosecution by putting specific suggestion to the contrary, cannot be used against the prosecution as "the evidence on behalf of prosecution". Moreover, no reason has been assigned by the prosecution why the wife of PW-2 in whose presence the victim was allegedly shot was not examined. ( 20 ) PW-4 is the son-in-law of the deceased. As mentioned earlier, neither pw-1 nor PW-2 ever alleged that the PW-4 also accompanied the deceased for the purpose of taking buffalo from the house of PW-2. ( 20 ) PW-4 is the son-in-law of the deceased. As mentioned earlier, neither pw-1 nor PW-2 ever alleged that the PW-4 also accompanied the deceased for the purpose of taking buffalo from the house of PW-2. Although, this witness claimed to have seen the appellant to fire at the deceased, in cross-examination, he admitted that whatever he said in Court were never stated before the police. Therefore, the evidence given by this witness cannot be trustworthy as those are not only at variance with that of the PW-1 and PW-2 but are concocted and narrated for the first time at the time of trial. Moreover, the signature of PW-4 appears on the inquest report of the dead body of the victim as a witness to inquest, which according to the report itself, was taken in the house of Lalbanu, the wife of Kabatulla, the PW-2 on the date of incident and thereafter the body was sent to morgue for post-mortem examination. PW-9, the Investigating officer in his report as well as in his deposition has admitted that the inquest was made in the presence of the witnesses and the report was also prepared on the spot. The PW-4, however, in his evidence admitted that he along with others accompanied PW-1 first to the police station to lodge FIR and then to hospital for treatment of the PW-1 and that he along with others returned back to the house of Kabatulla at about 4 P. M. and at that time, the body of the victim had already been removed by the police. ( 21 ) THUS, it is apparent that he could not be a witness to the inquest report and such fact has been admitted by the PW-4 in his deposition where he has stated that his signature was taken subsequently on the inquest report. It further appears from the evidence of PW-9, the Investigating Officer, that on the date of incident, he examined three persons immediately after the inquest but examined PW-4 on 14th August, i. e. two days thereafter. If he was really present at the time of inquest of the dead body of the victim, there was no reason why he was not examined on that day. No explanation has been furnished by the prosecution for such belated examination of PW-4 on a different day. If he was really present at the time of inquest of the dead body of the victim, there was no reason why he was not examined on that day. No explanation has been furnished by the prosecution for such belated examination of PW-4 on a different day. The Investigating Officer has further admitted in his deposition that PW-4 did not tell him about the throwing of bomb on PW-1 and the PW-4, as indicated earlier, himself has admitted that whatever was stated in evidence was not told earlier to the police. Therefore, in my opinion, it was unsafe to rely upon the improved version of PW-4 and it is evident that he was not present at the time of incident as specifically suggested to him at the time of cross-examination nor was he actually a witness to the inquest of the dead body of the victim as farsely alleged by the PW-9 both in his report and the evidence. ( 22 ) ALTHOUGH, all the alleged eye-witnesses have stated about the presence of all the twelve accused persons at the time of occurrence by specifically identifying the accused persons present in the Court, the learned Additional sessions Judge has disbelieved the version of the witnesses as regards involvement of the other accused persons than the appellant. When the specific evidence of the aforesaid alleged eye-witnesses are that all the accused persons participated at the incident, and the Court did not find it safe to rely upon the indictment made by those witnesses to convict the other accused persons, there is no reason of believing only the case of involvement of the appellant after disbelieving the self-same witnesses on the question of guilt of the others notwithstanding the fact that no special or separate defence was taken by the other acquitted persons. ( 23 ) IT further appears from the inquest report, that on preliminary investigations, the PW-9 at that time found that the deceased was killed by the bullets from the firearms of one Samir Sk. and the appellant, but at the time of trial nobody mentioned about the firing by Samir Sk. for the reason best known to the prosecution although the name of Samir Sk. appeared at the first and then the name of the appellant, in the inquest report written after preliminary investigation. and the appellant, but at the time of trial nobody mentioned about the firing by Samir Sk. for the reason best known to the prosecution although the name of Samir Sk. appeared at the first and then the name of the appellant, in the inquest report written after preliminary investigation. ( 24 ) THE learned Additional Sessions Judge has found no motive behind this murder. This Court is quite alive to the position of law that in case of direct evidence of murder, motive of the convict is immaterial. But in this case, as pointed out above, we are unable to rely upon the contradictory statements of the alleged eye-witnesses which are the outcome of tainted investigations and in such circumstances, absence of any motive behind the murder induces us further, not to place any credence on the version of these witnesses particularly when no material has been placed before the Court to show that the appellant is a professional murderer or habitual criminal with past record of conviction. At this stage, it will not be out of place to refer to the observation of the Supreme court in the case of Nachhittar Singh vs. State of Punjab, reported in AIR 1975 sc 118 , where the Apex Court reiterated the well-settled principle that absence of motive of the accused person casts a duty on the Court to scrutinize the other evidence, particularly of the eye-witnesses, with greater care and such absence of proof of motive has at least this effect that the other evidence bearing on the guilt of the accused has to be very carefully examined. ( 25 ) IT further appears from record that although the FIR was lodged on the day of incident, the same was received by the learned Magistrate on 17th August i. e. after five days from the date of alleged recording. It is true that mere delayed despatch of the FIR to the Magistrate does not vitiate the investigation if the same is done promptly and in accordance with law. But in a case, where specific plea has been taken at the trial that the FIR was ante-timed and the delay in sending the FIR is considerable, in the absence of proper explanation, the Court may have just reason to suspect that the FIR was cooked up subsequently and the time mentioned therein was not the actual time of recording. But in a case, where specific plea has been taken at the trial that the FIR was ante-timed and the delay in sending the FIR is considerable, in the absence of proper explanation, the Court may have just reason to suspect that the FIR was cooked up subsequently and the time mentioned therein was not the actual time of recording. In this connection, it will be profitable to refer to the following observations of the apex Court in the case of Anil Rai vs. State of Bihar, reported in AIR 2001 SC 3173 :"but where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable Pala singh vs. State of Punjab, AIR 1972 SC 2679 . Extraordinary delay in sending the copy of the FIR to the Magistrate can be a circumstance to provide a legitimate has is (sic. basis) for suspecting that the First Information Report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under section 157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. " ( 26 ) IN the case before us, it has already been noticed that from the statement of PW-4 itself it is clear that he could not be a witness to the inquest report as he came back from hospital when the dead body was already sent to the hospital for post-mortem examination and he categorically admitted interpolation in the inquest report by subsequently inserting his signature in the report. Similarly, he was constrained to concede that what he stated before the Court was not stated to police. In the inquest report, although the name of one Samir sk. is appearing as one of the persons who allegedly fired at the victim, such allegation is not reflected in the FIR. Moreover, the delay in examining the pw-4, when he was not really a witness to the inquest also raises a doubt about the impartial manner of investigation in this case. is appearing as one of the persons who allegedly fired at the victim, such allegation is not reflected in the FIR. Moreover, the delay in examining the pw-4, when he was not really a witness to the inquest also raises a doubt about the impartial manner of investigation in this case. Over and above, the delay in sending the FIR to the Magistrate is of 5 days, a quite substantial time, remains unexplained in this case and thus, introduction of "improvement and embellishment by setting up a distorted version of the cannot be ruled out. ( 27 ) ON consideration of what have been stated above, we are of the firm view that the prosecution in this case has not only failed to prove that the appellant was guilty of murder beyond reasonable doubt but the investigation itself is stained with fabrication and thus, the conviction in this case cannot by any means be supported. The learned Trial Judge, as it appears from the order impugned, did not take into consideration the above indicated aspects of the case. ( 28 ) WE, thus, allow the appeal and set aside the order of conviction and the sentences imposed upon the appellant. The appellant be acquitted and released from the judicial custody immediately if not required in any other case. Appeal allowed.