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2006 DIGILAW 543 (CAL)

KAZEM ALL MONDAL v. STATE OF WEST BENGAL

2006-08-29

ALOK KUMAR BASU, TAPAS KUMAR GIRI

body2006
ALOK KUMAR BASU, J. ( 1 ) THIS appeal is directed against the judgment and order of the learned Additional Sessions Judge, Fast Track Court No. 1, North 24-Parganas at Barasat passed in connection with Sessions Trial No. 18 (6) 2003 corresponding to Sessions Case No. 11- (4)-2002. ( 2 ) THE learned Judge of the Fast Track Court while disposing of the above-mentioned sessions case convicted all the three appellants under section 302/34 of the I. P. C. and they were sentenced to suffer imprisonment for life and being aggrieved by and dissatisfied with the order of conviction and sentence, the appellants approached this Court through the present appeal for their relief. ( 3 ) THE prosecution case in short was that on 22nd May, 2000 when the deceased, Md. Jinnat Ali, of village Harpara, P. S. Amdanga made protest against the illegal construction of a sun-shade by the appellant, Azibar Mondal, azibar calling the other two appellants, Kazem Ali Mondal and Fakkar Mondal, started assaulting Md. Jinnat Ali with bricks and as a result of such assault md. Jinnat Ali fell on the ground and lost his sense. When wife and children of jinnat Ali came at the spot, the appellants fled away and then Jinnat Ali was first taken to a local doctor and thereafter to Barasat Hospital and finally to calcutta Medical College and Hospital where Jinnat Ali expired on 23rd May, 2000 at 12. 45 P. M. Aharbanu Bibi, wife of Md. Jinnat Ali on 24th May, 2000 coming at the Amdanga Police Station narrated the incident which was reduced into writing by a Sub-inspector of that police station and on the basis of that information the present case was started against all the three appellants under section 304/34 of the I. P. C. ( 4 ) IN course of investigation, P. W. 8, the Sub-inspector of Amdanga police station examined witnesses, collected injury report and post mortem report and finally submitted the charge-sheet against the appellants. ( 5 ) THE learned Judge of the Fast Track Court on bearing both the prosecution and defence and after considering the papers placed before him, however, framed charge under Section 302/34 of the I. P. C. against all the appellants and all the appellants plead not guilty to the said charge and claimed for trial. ( 5 ) THE learned Judge of the Fast Track Court on bearing both the prosecution and defence and after considering the papers placed before him, however, framed charge under Section 302/34 of the I. P. C. against all the appellants and all the appellants plead not guilty to the said charge and claimed for trial. ( 6 ) PROSECUTION in this case examined 8 witnesses in all including, the i. O. and two children of the deceased Md. Jinnat Ali, who figured as P. W. 1 and P. W. 2 respectively. Prosecution also produced the original F. I. R. , P. M, report, death certificate and the injury report of the deceased Md. Jinnat Ali. The learned Trial Judge in a lengthy judgment and with reference to different ratio of decisions of the Hon'ble Supreme Court ultimately came to the conclusion that prosecution successfully proved that Md. Jinnat Ali suffered a homicidal death and all the appellants were responsible for the homicidal death of Md. Jinnat Ali and the learned Judge on such finding convicted all the appellants under Section 302/34 of the I. P. C. and they were sentenced to suffer accordingly. ( 7 ) MR. Chatterjee, who appears for the appellants, has first of all placed before us the entire prosecution evidence, both oral and documentary. Mr. Chatterjee submits that in this case the F. I. R. which was the starting point of the case, was not proved at all in accordance with law since the officer who reduced into writing the oral statement of wife of Jinnat Ali, was not examined by the prosecution and there was no explanation for such non-examination and for that reason the learned trial Court erred in law by making the F. I. R. an exhibit in the case. ( 8 ) MR. Chatterjee submits that interestingly enough, the police officer who came at the place of occurrence and who got the information of the death of Md. Jinnat Ali subsequently at Calcutta Medical College and Hospital, took no step in association with the local police station to hold any inquest over the dead-body of Jinnat Ali and hence there was a clear violation of the provisions of Section 174 of the Cr. P. C. which in an integral part of an investigation relating to murder. ( 9 ) MR. P. C. which in an integral part of an investigation relating to murder. ( 9 ) MR. Chatterjee submits that in this case, the doctor who conducted the post-mortem examination was not examined and there was no explanation for such non-examination and apart from that there was nothing on record to identify the dead-body before the doctor who conducted the post-mortem examination and the I. O. , as P. W. 8, was mysteriously silent over this issue during the examination-in-chief and in spite of that the learned Judge marked the post-mortem report as exhibited document in flagrant violation of the basic law of evidence. ( 10 ) MR. Chatterjee contends that without examination of the doctor, when the post-mortem report cannot be considered as an exhibited document, there was noting before the learned Judge to draw any conclusion about the homicidal death of Md. Jinnat Ali and naturally the prosecution did not establish the basic requirement that Jinnat Ali actually suffered a homicidal death and at the same time it was very important on the part of the prosecution to examine the doctor, since from the first-hand information of this case it was clear that even if the prosecution could have established its case, the appellants could have been tried only for culpable homicide not amounting to murder and by no stretch of imagination any charge can be framed against the appellants under section 302 of the I. P. C. ( 11 ) MR. Chatterjee contends that unfortunately in this case the wife of md. Jinnat Ali who gave the information to the police station was dead and for that reason it was the duty of the I. O. to examine trustworthy and credible-witnesses who could have established the guilt of the appellants before the learned trial Court. But unfortunately neither the P. W. 1 nor the P. W. 2, as appears from the statement, was present at the time of the occurrence and naturally no importance could be placed on their oral testimony to support the prosecution case. 11. Save and except the P. W. 1 and the P. W. 2, there was no other witness although as per the F. I. R. the occurrence took place in broad daylight. In spite of that neither a single relative of Md. Jinnat Ali nor any neighbour of jinnat Ali came forward to support the prosecution case. ( 12 ) MR. Save and except the P. W. 1 and the P. W. 2, there was no other witness although as per the F. I. R. the occurrence took place in broad daylight. In spite of that neither a single relative of Md. Jinnat Ali nor any neighbour of jinnat Ali came forward to support the prosecution case. ( 12 ) MR. Chatterjee, therefore, sums up that in a case where there is no document to support the allegation of murder of Md. Jinnat Ali, there is no document or evidence to show that Jinnat Ali actually died receiving the assault in the hand of the appellants and when there is no evidence also show how the dead-body of Jinnat Ali was identified for post-mortem examination and above all there is no evidence worth the name to support the prosecution case, the learned Judge erred in both fact and law by holding that the appellants are guilty of the offence under Section 302 of the I. P. C, and in such a situation, the conviction order recorded against the appellants must be set aside in the interest of justice and the appellants must be acquitted of the charge of murder. ( 13 ) MR. Goswami, appearing for the State-respondent, in his usual fairness submits that hear is a case where the I. O. acted callously and indifferently resulting in total miscarriage of justice. Mr. Goswami contends that in spite legal and technical deficiency, the fact remains that Md. Jinnat Ali suffered a homicidal death and the appellants were responsible but for the callousness of the I. O. , no evidence worth the name could be placed before the learned Trial Judge and Mr. Goswami is of the view that as per the evidence on record, no prudent man having the basic knowledge of criminal law shall support the order of conviction. ( 14 ) WE have heard both Mr. Chatterjee and Mr. Goswami and we have also examined the prosecution evidence ; both oral and documentary. Goswami is of the view that as per the evidence on record, no prudent man having the basic knowledge of criminal law shall support the order of conviction. ( 14 ) WE have heard both Mr. Chatterjee and Mr. Goswami and we have also examined the prosecution evidence ; both oral and documentary. ( 15 ) IT is pertinent to mention in this context that the fast track Courts were established for expeditious disposal of long pending criminal cases so as to give relief to the persons, particularly, who are kept detained in prison for a long time, but, the object of the fast track Court has never been to make justice a cheap commodity or to render such a justice which will have no sanction of the law behind it. ( 16 ) IN this particular case the learned Judge of the concerned fast track court while conducting the criminal trial, totally ignored the basic principle of law of evidence as it is apparent from his marking of the post-mortem report as an exhibited document when the doctor who conducted the post-mortem examination was not called by the prosecution or even the prosecution did not produce the original post-mortem report from the custody of the C. M. O. H. or the Superintendent of the concerned morgue. ( 17 ) EQUALLY, it is astonishing to note that the learned Judge marked the injury report and the death certificate of Md. Jinnat AH without examining the persons who prepared the injury report or who issued the death certificate and the learned Judge perhaps knew it well what are the requirement of marking a document as an exhibited document during trial. ( 18 ) WE find from the examination-in-chief of the I. O. , who figured as the P. W. 8, that he never ascertained how the dead body claimed to be that of md. Jinnat AN was identified by an authorized person of the police department before the Medical Officer who conducted the post-mortem examination. ( 19 ) NOW coming to the prosecution evidence we find that the P. Ws. 1 and 2, the children of Md. Jinnat AN, only deposed about the occurrence and we notice serious contradictions in the statement of both the witnesses when we consider their evidence as a whole and further we did not notice mentioning of their name in the F. I. R, itself. 1 and 2, the children of Md. Jinnat AN, only deposed about the occurrence and we notice serious contradictions in the statement of both the witnesses when we consider their evidence as a whole and further we did not notice mentioning of their name in the F. I. R, itself. Apart from P. Ws. 1 and 2, the I. O. could not bring any older witness at the time of investigation to support the assault taken place on Md. Jinnat Ali. ( 20 ) THUS, if we consider the prosecution evidence available with the record along with the fact that there is no legal proof regarding the homicidal death of Md. Jinnat All, it is very difficult to lend support to the conviction order of the learned Trial Judge, more so, when he convicted the appellants straightway under Section 302 of the I. P. C. without considering the fact whether even if the allegations were proved, those allegations could attract the provisions of Section 302 of the I. P. C. ( 21 ) THUS, after considering the submissions of Mr. Chatterjee, learned advocate for the appellants, and Mr. Goswami, learned Advocate for the state-respondent, and having regard to the evidence of record, we are inclined to hold that there is enough merit in the present appeal and for that reason we allow the same. ( 22 ) THE appeal is, therefore, allowed and the order of conviction and sentence are hereby set aside and all the appellants stand acquitted of the charge under Section 302 of the I. P. C. ( 23 ) WE find that the appellants, Kazem AN Mondal and Fakkar Monda! @ Julfikar, are already on bail and hence they stand discharged from their respective bail bond. ( 24 ) WE find that the appellant, Azibar Mondal, is still in detention and as we have held him not guilty of the charge of murder, he must be released forthwith from this case if he is not wanted in connection with any other case. ( 25 ) OFFICE is directed to send a copy of this judgment and order immediately to the Superintendent of the Correctional Home where Azibar mondal is detained for his release. ( 26 ) SEND a copy of this judgment and order along with the L. C. R. to the learned trial Court for information forthwith. ( 25 ) OFFICE is directed to send a copy of this judgment and order immediately to the Superintendent of the Correctional Home where Azibar mondal is detained for his release. ( 26 ) SEND a copy of this judgment and order along with the L. C. R. to the learned trial Court for information forthwith. ( 27 ) SINCE we have made certain observations about the quality of the judgment passed by the learned Trial Judge in exception to our regular practice, we direct the learned Registrar (Administration) to send a copy of this judgment by name to the learned Trial judge concerned for his information and necessary guidance wherever the learned judge is now posted. Office is directed to communicate immediately to the learned registrar (Administration) accordingly.