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2006 DIGILAW 800 (CAL)

LIYAKAT SARDAR v. STATE OF WEST BENGAL

2006-12-18

ALOK KUMAR BASU, PARTHA SAKHA DATTA

body2006
P. S. DATTA, J. ( 1 ) THE two appellants namely Liyakat Sardar and Nabiruddin sardar assail judgment and order of conviction under section 302/34 IPC and sentence of life imprisonment with a fine of Rs. 1,000/- with default stipulation as was rendered by the learned Additional Sessions Judge, First court, Nadia on 19. 05. 2001 in S. C. No. 23 (8) of 1998. ( 2 ) THE deceased Kader Box Sardar, a resident of village Suvarajpur under p. S. Karimpur had been to the house of P. W. 8 Mohiruddin Mallick at about 3 p. m. on 02. 11. 1995 in connection with 'halkhata' ceremony and on his way back at about 7. 30 p. m. he was killed by the two appellants. On hearing cry "they killed me, save me" emanating from the side of the primary school of the village P. W. 1 Jan Box Sardar, his elder brother Rahim Box Sardar (P. W. 2)and other brothers as also local people rushed to the spot and found the two appellants fleeing away. Kader Box who sustained multiple bleeding injuries on different parts of the body told P. W. 1 and his companions that the two appellants of the village had caused grievous bleeding injuries to him by means of sharp-cutting weapon. Kader Box was taken to Karimpur Hospital but on the way he expired. ( 3 ) THIS was the FIR lodged by Jan Box Sardar (P. W. I) with Karimpur police Station at 22. 15 hours on 2. 11. 1995, which registered Karimpur Police station Case No. 248/95 dated 2. 11. 2995 against the two appellants under section 302/34 of the IPC and upon completion of investigation submitted chargesheet against them under the said sections of the law. ( 4 ) OF the 15 witnesses examined by the prosecution it is the evidence of the FIR maker Jan Box Sardar (P. W. I), P. W. 2 Rahim Box Sardar, P. W. 3 nur Box Sardar, P. W. 4 Khoda Box Sardar, brothers of the deceased, P. W. 5 abdul Rejjak Sarkar, nephew of the deceased, P. W. 6 Tatila Bewa, wife of the deceased, P. W. 7 Golam Sardar another nephew of the deceased that call for consideration inasmuch as their evidence touch upon the fact-in-issue. Evidence of P. W. 8 Mohiruddin Mallick is important only to the extent that on the relevant date the deceased had come to his shop to attend 'halkhata' ceremony. Though P. W. 9 Tahirun Bibi, a co-villager does not claim to have seen the appellants having caused assault on the deceased, her evidence is relevant to the extent that about 7. 30 p. m. when she along with other three women was proceeding to attend to nature's call they heard a groaning sound and being attracted by their hue and cry local people came to the spot. P. W. 13 Dr. Ajit Kumar Biswas who held post-mortem examination found nine injuries of different shapes and sizes located on the neck, back of the shoulder joint, occipital region, back of the chest and other parts of the body. P. W. 15 Asoke Kr. Roy is the I. O. of the case. ( 5 ) A brief narration of evidence of the eye-witnesses and the witnesses who rushed to the spot immediate after the occurrence would not be out of place so as to appreciate the merit of the prosecution case as also of the appeal and while proceeding to do so it is worthwhile to state that the prosecution case rests on two-fold pieces of evidence namely when P. W. I, p. W. 2, P. W. 3, P. W. 4 and others on being attracted by hue and cry rushed to the spot they found the two appellants fleeing away from the spot, and secondly the deceased told the witnesses that the two appellants Liyakat sardar and Nasirudding Sardar had caused grievous assault to him by means of sharp-cutting weapon. Importantly, these two pieces of evidence which is the touchstone of the prosecution case found their berth in the FIR which was lodged within three hours from the time of the occurrence, and the distance between the place of occurrence which is the village of Suvarajpur and Karimpur is 14 kilometers. ( 6 ) P. W. 1's evidence is that at about 7. ( 6 ) P. W. 1's evidence is that at about 7. 30 p. m. when his brother Kader box Sardar was returning home from the shop of Mohiruddin Mallick (P. W. 8)he was murdered by the two appellants and on hearing hue and cry emanating from the southern side of his house he together with brothers and others came and found the appellants fleeing away and on interrogation his brother disclosed that the two appellants had caused injuries. It is in his evidence that the occurrence took place on the land of Sabdul Sardar. It has been the evidence of P. W. 2 Rahim Box Sardar that while he and the witnesses were on the way to school he found the two appellants fleeing away from the spot and further found his brother writhing in pain. Same is the evidence of P. W. 3 who further stated that his brother disclosed that the two appellants had assaulted him. P. W. 4 the other brother of the deceased has corroborated p. W. I, P. W. 2 and P. W. 3 though not in details. He has said that the deceased was brought to Karimpur by a buffalo cart and on the way to hospital he died at Panchgachhi. P. W. 5 nephew of deceased found the deceased on the land of Sabdul Sardar situated on the western side of the primary school in injured condition and telling the names of the assailants to him. He also says that the deceased was first taken to Natidanga by a buffalo cart and then to Karimpur Hospital by a rickshaw van but died on the way to hospital. P. W. 6, the widow of the deceased and P. W. 7 Gopal Sardar have corroborated the aforesaid witnesses in all material particulars. ( 7 ) MR. Subir Ganguly, learned Advocate appearing for the appellants has raised volley of questions in his attempt to make us believe that the prosecution evidence is unbelievable. According to him, the very evidence of P. W. 1 that the deceased disclosed to him and others about the identity of the assailants is incredible in view of his evidence that he noticed the deadbody of his brother lying on the paddy field of Sabdul Sardar situated on the western side of the road. According to Mr. According to him, the very evidence of P. W. 1 that the deceased disclosed to him and others about the identity of the assailants is incredible in view of his evidence that he noticed the deadbody of his brother lying on the paddy field of Sabdul Sardar situated on the western side of the road. According to Mr. Ganguly, in the context of this piece of evidence conviction against the two appellants can hardly be recorded. Secondly, Mr. Ganguly contends that the second corner-stone of the prosecution case that P. W. I, P. W. 2 and P. W. 3 found the appellants fleeing away from the spot is also untrustworthy on two counts, firstly, the assailants would not be waiting for the arrival of the witnesses so as to facilitate them to have view of them and secondly the witnesses did not tell that they found the assailants going with arms and weapons in their hands. Mr. Ganguly contends, thirdly, that evidence of P. W. I, P. W. 2, P. W. 3, P. W. 4, P. W. 5, P. W. 6, and P. W. 7 have been demolished by the evidence of P. W. 9 who does not speak of presence of all these witnesses at the scene of the crime immediately after the assault was caused on the deceased. According to Mr. Ganguly if these witnesses had really come to the place of occurrence their presence would have been noticed by P. W. 9 Tahirun Bibi who along with three other ladies was coming to the field to attend to nature's call. Therefore, it is submitted by Mr. Ganguly that the entire evidence of seven P. Ws. has been got up and it is the constant defence position that the incident took place at natidanga, not on the land of Sabdul Sardar in the village of Suvarajpur and on the advice of the police the place of occurrence has been shifted to the village so as to facilitate six P. Ws. to be styled as eye-witnesses. Fourthly, mr. to be styled as eye-witnesses. Fourthly, mr. Ganguly contends that another dimension of the evidence of P. W. 9 is that the distance between the house of P. W. I as also of the deceased and the place of occurrence is twenty minutes' walk and the distance being such as has been spoken of by P. W. 9, it is utterly incredible that the seven witnesses would be in a position to come to the land of Sabdul Sardar so as to see the appellants fleeing away and hear the injured telling the names of the assailants. According no Mr. Ganguly, on the face of evidence of P. W. 9 it could not be possible for P. W. I and his brothers to see the assailants fleeing away. Fifthly, it is contended that the probability does not suggest that the witnesses would see the appellants fleeing away but not chase them. Sixthly, Mr. Ganguly argues that if it is the consistent case of the prosecution that the injured had made disclosure of the names of the assailants before his death to these witnesses and if P. W. 1 and others would find the appellants fleeing away then there is no explanation as to why these seven witnesses amongst themselves would contradict each other with respect to these two pillars of the prosecution case. Mr. Ganguly elaborates that P. W. 2 did not say anything about the deceased disclosing the names of the appellants and unlike P. W. I he says that he found the deceased writhing in pain. Again, though P. W. 2 did not speak of disclosure, p. W. 3 spoke of such disclosure by the deceased, and P. W. 4 like P. W. 2 did not speak anything about the assailants being named by the deceased. According to Mr. Ganguly, before P. W. 15 who is the I. O. P. W. 3 did not tell that he found the accused persons fleeing away from the spot. Seventhly, from evidence of P. W. 13 who conducted the post-mortem examination it would appear that he has stated that on account of the injuries there was every possibility to have vocal cord cut and having regard to the seat of the injury it was well-neigh impossible for the deceased to make any such disclosure. Seventhly, from evidence of P. W. 13 who conducted the post-mortem examination it would appear that he has stated that on account of the injuries there was every possibility to have vocal cord cut and having regard to the seat of the injury it was well-neigh impossible for the deceased to make any such disclosure. Lastly, it was argued that no independent witness was examined, all being partisan and political rivalry between the appellants and the prosecution witnesses was a matter of fact. ( 8 ) MR. L. M. Dutta, learned Advocate for the State-respondent presented before us a broad spectrum of the evidence of the prosecution witnesses and submitted that critical appreciation of the evidence of the prosecution witnesses should not be in the line of finding out some contradictions here and there in a narrow lane. According to Mr. Dutta, evidence of P. W. 9 cannot be the basis of demolishing evidence of her preceding witnesses and the "twenty minutes theory" as has been discovered from the cross-examination of P. W. 9 has itself been demolished by evidence of P. W. 3 who has said that the house of P. W. I and the place of occurrence which is the land of Sabdul Sardar is intervened by two/three houses and evidence of p. W. 3 in this respect has been reiterated, not demolished, in his cross-examination as well. Mr. Dutta submits that irrespective of whether one is inclined to accept the evidence of prosecution witnesses or the reject them it cannot be said that the deceased was found by prosecution witnesses lying dead at the spot when the prosecution witnesses came there inasmuch as save and except that solitary piece of evidence as we have noticed in p. W. I, which is impossible to the least and it is not understood as to how such evidence could be recorded by the learned Trial Court, there is plethora of evidence that the deceased died on the way between Natidanga and karimpur. Mr. Dutta submits that P. W. 13 has not said in his evidence, nor is it in his post-mortem report (Ext. 2), that he found cut injury on the vocal cord. Mr. Mr. Dutta submits that P. W. 13 has not said in his evidence, nor is it in his post-mortem report (Ext. 2), that he found cut injury on the vocal cord. Mr. Dutta submits further that the alleged contradictions amongst statements of P. W. 1 to P. W. 7 are really not the contradictions at all firstly because except the contradiction between P. W. 3 and his statement before the I. O. no contradiction between evidence of other witnesses and their statements before the I. O. could be elicited. ( 9 ) HAVING heard the submission of the learned Counsel for the appellants and those of the learned Advocate for the State-respondent we come to find that the sumun bonum of the evidence of the prosecution witnesses cannot be said to be incredible as is attempted to be made so by Mr. Ganguly, learned Advocate for the appellants. It cannot be said, since there is no iota of evidence to the contrary, that the place of occurrence is Natidanga which is between the village of Suvarajpur and Karimpur. It is the consistent evidence of all the witnesses that the place of occurrence is near the land of sabdul Sardar and this is fortified from the sketch map prepared by the I. O. (Ext. 6) wherefrom it appears that the place of occurrence is near the village primary school. A village pathway intervenes between the place of occurrence and the primary school and it is the evidence of the witnesses that having heard hue and cry they rushed towards the primary school which, in fact, is adjacent to the place of occurrence. Therefore, it cannot be argued that the place of occurrence is Natidanga. Further, evidence of P. W. 8 has made it indubitably clear that the deceased had come to his shop to attend 'halkhata' ceremony and his shop is at a distance of half of a mile from the primary school. Once it is established that the place of occurrence is within the village of Suvarajpur where the house of P. W. I and those of other witnesses is situated the probability of the first seven witnesses having seen the appellants going away from the place of occurrence can hardly be questioned. Once it is established that the place of occurrence is within the village of Suvarajpur where the house of P. W. I and those of other witnesses is situated the probability of the first seven witnesses having seen the appellants going away from the place of occurrence can hardly be questioned. The two pillars of the prosecution case namely, the deceased disclosing the names of the assailants to P. W. I and others and P. W. I and others finding the appellants fleeing away from the spot are not coming for the first time in evidence of the witnesses. These two important facts have been categorically mentioned in the FIR (Ext. l) itself and the FIR was lodged just within three hours of the occurrence and having considered the distance between the place of occurrence and the police station at Karimpur there is no earthly reasons to argue that the FIR is pregnant with embellishment and colouring over the actual occurrence or that the FIR could be manufactured by the evil design of the I. O. The "twenty minutes theory" as has been discovered from the cross-examination of the P. W. 9, a rustic village lady cannot be the trump card of the defence because, as rightly argued by mr. Dutta, if the distance between the place of occurrence and the house of p. W. 1 is a distance of twenty minutes' walk then by cross-examining P. W. 1 and others such distance should have been elicited but on the contrary, it is in the evidence of P. W. 3 that only two/three houses intervened between the house of P. W. I and the place of occurrence. In cross-examination P. W. 3 has further stated that the house of Ajijul Sardar, Abu Bakkar and Jafar mondal intervened between the house of P. W. 1 and the place of occurrence and from the sketh map it could be evident that the house of Jafar Mondal is exactly to the south-west of the place of occurrence. Therefore, evidence of P. W. 9 cannot be capitalized so as to discredit evidence of other witnesses. It is in evidence of P. W. 9 that a good number of local people came to the spot on hearing hue and cry. Therefore, evidence of P. W. I to P. W. 7 cannot be dismissed in the way the appellants intend to do. It is in evidence of P. W. 9 that a good number of local people came to the spot on hearing hue and cry. Therefore, evidence of P. W. I to P. W. 7 cannot be dismissed in the way the appellants intend to do. P. W. 9 was not asked in her examination-in-chief as to whether P. W. 1, P. W. 2, P. W. 3 and others had come there or not and accordingly absence of their names in evidence of P. W. 9 does not by itself make the evidence of P. W. 1 and others incredible. ( 10 ) THE very argument that when P. W. I and others had come to the spot they found the deceased lying on the ground dead is preposterous because p. W. 9 whose evidence is relied on by the defence has said in her evidence that the deceased was groaning in pain and she came to know that he died subsequently. In essence, it has come out unchallengeable from evidence of all the witnesses that the victim did not die at the spot. The victim was taken by a buffalo cart to Natidanga wherefrom he was taken by a rickshaw van towards Karimpur and on the way the victim died. Therefore, when the witnesses said that the victim made a statement disclosing the names of the assailants it cannot be said that the possibility of making such disclosure was bleak, more particularly when reference to such disclosure which is verily admissible in evidence within the meaning of section 32 (1) of the evidence Act has been mentioned in the FIR itself which was lodged without any loss of time. P. W. 9 who is a village rustic lady was made to speak in cross-examination by way of suggestion that the distance between her house and the place of occurrence is a distance of twenty minutes' walk and the same is the distance between the house of the P. W. I and the place of occurrence. As noticed earlier, foundation of the case has been well-built by p. W. 8 when he says that the deceased had come to his shop to attend 'halkhata' ceremony and it admitted of no dispute that the occurrence took place at 7. 30 p. m. when he was returning back to his house from the shop of p. W. 8. As noticed earlier, foundation of the case has been well-built by p. W. 8 when he says that the deceased had come to his shop to attend 'halkhata' ceremony and it admitted of no dispute that the occurrence took place at 7. 30 p. m. when he was returning back to his house from the shop of p. W. 8. The place of occurrence and the house of P. W. I being situated at so close a distance from each other that it was possible for P. W. I and his brother to come to the place of occurrence on hearing hue and cry. When p. W. 1 himself says in his evidence that on interrogation his brother disclosed that Liyakat and Nabiruddin had assaulted him his other piece of statement that the deceased was found lying on the paddy field is definitely a mistaken version which is ex facie incorrect in view of the uncontradicted fact that the victim died on the way between Natidanga and Karimpur. A state of a affair - victim found lying dead in the field of Sabdul - could have been accepted if P. W. I would not have proceeded further to say that on interrogation the victim disclosed to him and others present that the appellants had caused bleeding injuries to him, - a piece of evidence convincingly corroborated by other witnesses. Therefore, it cannot be said that there is really any contradiction to be taken cognizance of between evidence of P. W. I, P. W. 2 and P. W. 3 on the one hand and the evidence of p. W. 9 on the other. Of the seven witnesses, i. e. P. W. I to P. W. 7, only P. W. 2 and P. W. 4 in their oral testimonies did not mention about the deceased telling the names of the assailants but the other witnesses namely P. W. I, p. W. 3, P. W. 5, P. W. 6 and P. W. 7 have stated that the deceased made a statement mentioning the names of the assailants to them and it is of it utmost importance to notice that it could not be the defence stand that these five witnesses did not mention to the I. O. that the deceased had made such statement to them. By no amount of cross-examination of the I. O. could it be elicited that these five witnesses did not at all tell him about disclosure of the names of the assailants by the deceased to them. In such circumstances, omission to make such disclosure in the evidence of P. W. 2 and P. W. 4 does not upset the prosecution case. However, as to the other pillar of the prosecution case that the witnesses found the two appellants fleeing away from the spot all the witnesses with the solitary exception of p. W. 4 have said that they have found the two appellants fleeing away from the scene of the crime. By cross-examination of P. W. 15 (I. O.) it could not be extracted that the aforesaid witnesses did not tell him that they had seen the appellants fleeing away. On the facts and in the circumstances of the case it cannot be said that it was not possible for the witnesses to find the two appellants fleeing away from the spot. Therefore, evidence of not a single witness can be discredited with falsity. The argument of Mr. Ganguly that evidence of P. W. 13 to the effect that having regard to the injuries there was every possibility of the vocal cord being cut we are to assume the position that the victim was not in a position to disclose the names of the assailants is not sustainable because once it is established that the victim lived for certain period of time and that he died on the way between natidanga and Karimpur, it was not impossible on the part of the victim to mention the names of the assailants to the witnesses. Furthermore, as we have already noticed, this important feature of the prosecution case was not omitted to be mentioned in the FIR which was lodged at the quickest possible time. Mr. Ganguly submitted that since the witnesses did not claim in their evidence that the appellants were seen running away with the weapons in their hands it entails two things, namely, weapons were thrown away in which case there was no seizure of weapons by the I. O. , and secondly in the alternative the appellants were not at all seen by the witnesses. The argument is not acceptable, firstly, on the ground that in such a situation when they could only find the assailants fleeing away it was not expected of them to minutely look as to whether they were having arms with them and, secondly, non-recovery of weapon is of no consequence in view of witnesses having seen the appellants running away. It cannot be lost sight of the fact that certain minor contradictions are inevitable because of the fact that the witnesses came to Court to depose five years after the incident and it may be not possible for them to remember the minutest details of each and every event minute by minute. P. W. 13 did not say at all in his evidence that he found the vocal cord cut, and as he has not said so expressly it cannot be said by surmise and conjecture that the vocal cord of the deceased was so cut; and the deceased was incapacitated from making any disclosure about the assailants. Mr. Ganguly spoke of political revelry between the groups and according to him there was no independent witnesses examined by the prosecution. And, according to Mr. Ganguly, the motive behind the incident - whether land dispute or about formation of R. G. Party - has not been made explicit in evidence of the witnesses. When evidence of the witnesses makes the position clear that it was the assailants who caused murder of the victim motive behind the murder may not be searched for. Again, rivalry on account of the parties belonging two political groups cuts both ways and assuming that there was a political rivalry it is that rivalry which made the prosecution witnesses truthful because the witnesses would be least interested to project an innocent man to be a culprit falsely. Secondly, we find no enmity between the appellants and the P. W. 4, P. W. 5, p. W. 6 and P. W. 7. It cannot be said that these witnesses would falsely plant the appellants for no reason whatsoever. Secondly, we find no enmity between the appellants and the P. W. 4, P. W. 5, p. W. 6 and P. W. 7. It cannot be said that these witnesses would falsely plant the appellants for no reason whatsoever. The argument as to why the appellants were not chased by the witnesses is not acceptable because it was the first duty of the prosecution witnesses to attend to the victim and indeed it has been said by the witnesses that having seen the victim in injured condition they dressed his wounds with clothes and took him by buffalo cart to Natidanga wherefrom he was taken to Karimpur but on the way he succumbed to the injuries. No reliance can be placed upon the evidence of hostile witness P. W. 14 Sukur Ali Mondal who said that a deadbody was loaded on his trolley because firstly he did not carry the victim from suvarajpur and as such he cannot say whether the victim died at the spot or not, and secondly in cross-examination by the prosecution he does not rule out and deny the prosecution suggestion that he had stated to the I. O. that the injured died on the way to the hospital from Natidanga. ( 11 ) MR. Ganguly at the last leg of argument took us to a decision in munna Chanda vs. State of Assam as reported in 2006 (1) C Cr. LR (SC) 563 to argue that on the kind of evidence adduced by P. W. I, P. W. 2, P. W. 3 and others no conviction is warranted. We have minutely gone through the decision to find that in the reported case the appellants were not named in the FIR and they even were not identified in the dock and no witnesses have taken their names as the persons who committed any overt act. Clearly, the facts in the reported case is distinguishable from our case and the decision is inapplicable. ( 12 ) HAVING thus gone through the fact and circumstances of the case as well as evidence on record and having analyzed evidence of the witnesses we are of the considered judgment that the prosecution case was well-built and the learned Trial Court did not commit any error in recording conviction against the appellants. ( 13 ) IN the result, the appeal fails and is devoid of any merit. ( 13 ) IN the result, the appeal fails and is devoid of any merit. ( 14 ) WE accordingly dismiss the appeal and confirm the judgment and order of the learned Trial Court. ( 15 ) THE appellants who are on bail are directed to surrender before the learned Trial Court to serve out the sentence within 30 days from the date indo Europa Trading vs. Anil Poddar (T. K. Dutt, JJ.) (DB) 303 of communication of this order failing which the learned Trial Court shall take appropriate steps for apprehension of the two appellants in order to have the sentence executed against them. ( 16 ) OFFICE is directed to transmit at once a copy of the judgment along with the L. C. R. to the learned Trial Court for information and necessary action. Alok Kumar Basu, J. : I agree. Appeal dismissed.