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2006 DIGILAW 43 (CAL)

HANNAN ALI v. STATE OF WEST BENGAL

2006-01-25

ALOK KUMAR BASU, PRANAB KUMAR DEB

body2006
ALOK KUMAR BASU, J. ( 1 ) THIS appeal is directed against the order of conviction and sentence passed against appellant Hannan Ali by the learned Additional sessions Judge, 2nd Court, Berhampore in the district of Murshidabad in connection with Sessions Serial No. 114 of 1995 corresponding to Sessions Trial no. 4 (3) of 1995. ( 2 ) IN all six persons including the present appellant faced the trial under section 302/34 of the IPC and the learned Additional Sessions Judge finally convicted the present appellant under section 302 of the IPC and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs. 3,000/- in default to suffer simple imprisonment for two months. ( 3 ) THE prosecution case in brief was that on 29th February, 1992 at about 3. 45 p. m. Md. Ajaharul Islam was returning with one Hyder Ali by a bicycle of hyder Ali and Ajaharul sat on the front rod of the cycle. When Hyder and ajaharul reached near the house of one Ajij Mondal, appellant along with others surrounded the cycle of Hyder Ali and Hannan Ali assaulted Ajaharul on his chest by a knife. Hyder Ali brought injured Ajaharul Islam to his house where a police camp was posted and subsequently on the way to hospital, Ajaharul succumbed to his injury. ( 4 ) BROTHER of Ajaharul, Md. Nawsaf Ali informed Rani Nagar P. S. about the occurrence on the same date at'about 9 p. m. and on the basis of such information, the case was started by Rani Nagar P. S. and subsequently on completion of investigation, police submitted chargesheet against Hannan Ali along with other under section 302/34 of the IPC. ( 5 ) THE learned Trial Court examined 17 witnesses in course of trial as produced by the prosecution and those witnesses were P. W. 1 brother of the victim and who lodged FIR, P. W. 4, F. W. 5, P. W. 10, P. W. 13 and P. W. 14 before whom the victim disclosed the name of the appellant as the person who assaulted him, P. W. 6, P. W. 8 and P. W. 9 who were witnesses to the occurrence, P. W. 12 doctor who conducted post-mortem examination and P. W. 17 who was the investigating officer and who submitted chargesheet after completion of investigation. ( 6 ) THE learned Trial Judge, on perusal of the evidence of FIR maker along with the eye-witnesses came to the conclusion that FIR maker and the eyewitnesses in one voice identified the appellant as the person who on the date of occurrence assaulted the victim with a knife and the learned Judge also took into consideration the statement of those witnesses including two police constables who deposed about disclosure of the name of the appellant by the victim himself. The learned Judge also considered the post-mortem report and opinion of the doctor who conducted post-mortem examination to support the prosecution case that appellant inflicted fatal injury on the chest of the victim resulting his death and accordingly, the learned Judge convicted the appellant under section 302 of the IPC. ( 7 ) FROM the record it appears that at the time of admission of this appeal a point was taken on behalf of the appellant that the appellant was juvenile at the time of occurrence and since appellant had no document in support of his submission, this point could not be agitated during trial and as the appellant has since obtained a school admission certificate indicating his actual age, his point in support of his submission needs judicial probe. It appears on record that the Bench at the time of allowing the bail prayer of the appellant directed the learned Additional Sessions Judge to hold a limited enquiry in order to ascertain the actual age of the appellant at the time of commission of the offence and in doing so, the learned Judge was directed to record evidence to be produced by the appellant. ( 8 ) PURSUANT to the direction of this Court, the learned Additional Sessions judge conducted an enquiry and examined witnesses produced by the appellant anc. also considered the school admission certificate of the appellant along with radiological report produced by the prosecution. ( 9 ) THE learned Additional Sessions Judge after completion of his enquiry produced the enquiry report along with evidence for consideration by this Court. also considered the school admission certificate of the appellant along with radiological report produced by the prosecution. ( 9 ) THE learned Additional Sessions Judge after completion of his enquiry produced the enquiry report along with evidence for consideration by this Court. ( 10 ) FROM the enquiry report and also from the evidence recorded by the learned Additional Sessions Judge, it appears that the school admission certificate produced by the appellant belore the learned Additional Sessions judge was not a genuine one, rather, it was produced for the purpose of the trial and the learned Additional Sessions Judge having regard to the radiological report of the appellant took the definite view that the appellant was not a juvenile at the time of occurrence. ( 11 ) MR. Roy, appearing for the appellant after examination of the enquiry report of the learned Additional Sessions Judge, has not submitted anything challenging the report and, in fact, during hearing of the appeal he has addressed us touching the merit of the appeal itself. ( 12 ) MR. Roy at the outset contends that the very fact that the Trial Court did not support the original prosecution case relating participation of other accused persons in commission of murder of the victim and acquitted all of them, strikes at the very root the prosecution case and this significant aspect of the prosecution case must not be lost sight of while appreciating the evidence on record brought by prosecution against the present appellant. ( 13 ) MR. Roy contends that in the FIR of P. W. 1 their was no indication about the alleged declaration made by the victim before his death disclosing the name of the appellant and according to Mr. Roy failure to mention about the dying declaration in the FIR must be considered to be vital for the prosecution case. Mr. Roy in this regard has referred to the decision of the Hon'ble Supreme court reported in the case of Ram Kr. Pandey vs. State of Madhya Pradesh reported in 1975 (3) SCC page 815. ( 14 ) MR. Roy contends that prosecution has relied on two sets of evidence to substantiate its charge against the appellant and that was deposition of some alleged eye-witnesses and deposition of some witnesses who stated about declaration made by the victim before death disclosing the name of the appellant as his assailant. Mr. ( 14 ) MR. Roy contends that prosecution has relied on two sets of evidence to substantiate its charge against the appellant and that was deposition of some alleged eye-witnesses and deposition of some witnesses who stated about declaration made by the victim before death disclosing the name of the appellant as his assailant. Mr. Roy contends that so far the statement of witnesses regarding alleged declaration of the victim is concerned, such statement cannot be accepted at all since there is no firm opinion from the side of the doctor that, the victim had physical capability and mental alertness to disclose the name of the appellant after sustaining such a serious injury on his person. ( 15 ) MR. Roy contends that the alleged eye-witnesses have made contradictory statement before the Court and there has been persistent effort to improve their statement before the Court and for that reason, no reliance can be placed on the statement of those eye-witnesses. ( 16 ) MR. Roy submits that it is available from the statement of investigating officer that he made no attempt to send either blood sample or the incriminating weapon for FSL examination and this is a serious lacuna in the investigation which will also call in question the veracity of the prosecution allegation made against the appellant. ( 17 ) MR. Roy contends that from the statement of the doctor who conducted post-mortem examination, we do not find any support regarding the prosecution case that knife was used for causing injury on the victim and even the knife in question was not produced before the Court during trial and this omission on the part of the prosecution is sufficient to challenge the veracity of the prosecution case. ( 18 ) MR. Roy finally contends that even if it is accepted for argument's sake that appellant assaulted the victim with a knife and subsequently the victim died of such injury since there is nothing in the opinion of the doctor that such injury was sufficient in the ordinary course to cause death of the victim, no firm conclusion can be drawn to support the prosecution case that the victim is liable to be punished under section 302 of the IPC. ( 19 ) MR. ( 19 ) MR. Roy contends that only a single blow given at the vital part of the body cannot be the sole criterion to convict a person under section 302 of the ipc and the Court must examine the broad factual scenario to understand the real intention of the appellant and in this particular case having regard to the fact that other co-accused have been acquitted and the appellant struck only one blow with the knife, the appellant cannot be convicted under section 302 of the IPC and, at best, the conviction can be recorded only under section 304 of the IPC. ( 20 ) THE learned advocate representing the State submits that the conduct of the appellant in this particular case is noteworthy since only after preferring the appeal he raised a plea that he was juvenile at the time of commission of the alleged offence and that he did on the basis of a procured school certificate. The learned Advocate contends that the Trial Court pursuant to the direction of the High Court conducted the enquiry after recording evidence wherefrom it is available that the appellant produced a manufacture document before this high Court at the time of making his prayer for bail and the learned Trial court on perusal of evidence rejected the plea of the appellant and held him to be major at the time of commission of the offence. ( 21 ) THE learned Advocate for the State contends that in this case the prosecution allegation is very simple and specifically pointed towards the appellant who inflicted the fatal injury on the person of the victim with the help of a knife resulting almost immediate death of the victim. The learned advocate contends that it is available from the statement of the witnesses of the prosecution that the knife was struck at the chest of the victim which was later taken out. ( 22 ) THE learned Advocate contends that in this case prosecution has relied on both on direct evidence as well as circumstantial evidence. The learned advocate contends that it is available from the statement of the witnesses of the prosecution that the knife was struck at the chest of the victim which was later taken out. ( 22 ) THE learned Advocate contends that in this case prosecution has relied on both on direct evidence as well as circumstantial evidence. P. W. I the FIR maker, P. W. 6, P. W. 8 and P. W. 9 were present on the spot where the appellant assaulted the victim with knife and of those witnesses P. W. 9 was the most important witness for the prosecution, because, the victim was coming sitting on the front rod of his bicycle and at that point of time he was assaulted by the appellant and P. W. 9 has deposed in Court and there appears nothing in his cross-examination to impeach his credibility. ( 23 ) THE learned Advocate contends that apart from the statement of the eye-witnesses there are other witnesses including two police constables who came forward to testify that before death victim disclosed before them the name of the appellant as the person who assaulted him with a knife. ( 24 ) THE learned Advocate contends that the ocular evidence of the prosecution side got ample corroboration from the medical report and naturally, there is no scope to call in question the legality of the conviction order of the learned Trial court. ( 25 ) THE learned Advocate submits that there is no merit in the contention of the appellant that his conviction should have been under section 304 of the IPC and not under section 302 of the IPC as recorded by the Trial Court. The learned advocate contends that it is clear from medical evidence supported by ocular evidence that the appellant gave a fatal blow at the vital part of the body of the victim and the victim succumbed to his injuries within a short time leaving no scope for survival and that being the factual position, the intention of the appellant having been proved beyond doubt, there was no scope for the Trial court to bring down the conviction under section 304 of the IPC and hence, there is no scope to interfere either with the conviction order or with the sentence order. ( 26 ) WE have carefully considered the submission of both the sides in the background of the prosecution evidence available with record. ( 27 ) WE find from FIR and also from the inquest report that name of the appellant transpired in the FIR and in the inquest report and the FIR was lodged within a shortest possible time from the occurrence and investigation followed soon thereafter. Naturally, there is no scope to hold that there was any manipulation from the side of the FIR maker to implicate the name of the appellant out of enmity. ( 28 ) WE find that soon after receipt of the injury the victim was brought to his house and there was a police camp and the constables attached to the police camp had the occasion to see the injured and at that point of time, the injured disclosed the name of the appellant in presence of other witnesses and during trial, prosecution examined two constables along with other witnesses who obtained the name of the appellant directly from the injured. ( 29 ) WE find that FIR maker and P. W. 9 stated in Court that they were present on the spot and particularly P. W. 9 was the man who was with the appellant on the bicycle when the deceased was assaulted. The statement of P. W. 1 and P. W. 9 was supported by other eye-witnesses. ( 30 ) FROM the statement of eye-witnesses and other witnesses we find that appellant gave one blow with the knife at the chest of the victim and this has been corroborated by the medical report. ( 31 ) THUS, having regard to the evidence on record and after considering the submissions of both the sides, we are convinced to hold that it was the appellant who assaulted the victim on the fateful date with a knife and as a result of that assault only the victim expired. ( 32 ) IT has been strenuously argued on behalf of the appellant that since the appellant gave only one blow and since there is no opinion from the doctor that such single blow was sufficient in the ordinary course to cause the death of the victim, there was scope for the Trial Court to bring down the conviction of the appellant from section 302 to section 304 of the IPC. Mr. Mr. Roy in support of his submissions referred to various decisions of the Hon'ble Supreme Court to bring home his point that having regard to the fact and circumstances it would be proper to hold the appellant guilty of the offence under section 304 of the IPC and not under section 302 of the IPC. ( 33 ) WE have considered submissions of Mr. Roy in the background of the fact and evidence of the present case, but, in spite of our best wishes we could not persuade ourselves to accept the contention of Mr. Roy. It is the case of the prosecution that appellant assaulted the victim on his chest with a knife and there is nothing on evidence that before such assault there was any altercation between appellant and the victim so as to hold conclusively that there was enough provocation from the side of the victim to instigate the appellant to assault the victim at the vital part of his body. We are aware of our constraint and limitation and being aware of that position when we do not get any evidence to bring the act of the appellant under any of the exceptional clauses of section 300, we feel that the contention of Mr. Roy has no merit in the background of the present fact and evidence on record. ( 34 ) AS a result, we find no merit in the present appeal and the same is dismissed. ( 35 ) THE order of conviction and sentence passed against the appellant are hereby confirmed. ( 36 ) THE appellant was released on bail pursuant to an order of this Court and now we cancel that bail bond with immediate effect and we direct the appellant to surrender before the Trial Court within 15 days from communication of this order failing which the Trial Court shall take all necessary steps to secure appearance of the appellant and to send him to jail to serve out the sentence. Appeal dismissed.