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2006 DIGILAW 817 (CAL)

Ram Das v. STATE OF WEST BENGAL

2006-12-21

ALOK KUMAR BASU, PARTHA SAKHA DATTA

body2006
Judgment : P. S. Datta, J. Ram Das and Lakshman Das, the two brothers of village Ramkrishnapur have preferred this appeal being aggrieved with the judgment of conviction under section 302 read with section 34 and order of sentence of imprisonment for life with a fine of Rs. 5,000/-each with default stipulation passed by the learned Additional Sessions Judge-cum-Judge, Special Court (EC) Act, Alipore in Sessions Trial No.4 (11) of 2000 corresponding to S.C. No.2 (1) of 2000. 2. Smt. Smritikana Hazra, the wife of the deceased lodged a written complaint with the O.C., Bishnupur P.S. at 15.10 hours on 5.3.2000 against the two appellants alleging that her husband Harulal Hazra who had left home at 9.30 p.m. on 4.3.2000 for Amtala Bazar to work as coolie was severely assaulted by the two appellants by sharp-cutting weapons on the way near Kalitala causing instantaneous death of her husband at the spot. 3. Bishnupur Police Station having registered Bishnupur P.S. Case No.48 of 2000 dated 5.3.2000 under section 302/34 of the IPC submitted charge-sheet against the two appellants under the said sections of the law and the trial ended with conviction and sentence as said above. 4. Of the 13 witnesses examined by the prosecution it is the evidence of the FIR-maker Smt. Smritikana Hazra (P.W.1), P.W.8 Anil Hazra and P.W.9 Duranta Haldar that call for consideration since these three witnesses have given evidence against the appellants to the effect that they had caused murder of P.W.1s husband Harulal Hazra. Evidence of P.W.3 Subol Chandra Mal, though he turned hostile is also relevant inasmuch as it is near his stall where the occurrence took place. 5. Before we come to consider evidence of the aforesaid four witnesses we may by way of passing reference mention evidence of P.W.10 Shyamal Hazra who says that on being informed of the incident of murder between 11 and 11.30 p.m. he rushed to the house of Bidyut Mondal, a relative of P.W.1 by his bicycle in that very night and Bidyut Mondal came out of his house by his own bicycle to the house of P.W.1 and on the way he and Bidyut reached Amtala at 2/2.30 a.m. and then while he returned home Bidyut proceeded to the house of Harulal Hazra. This witness was declared hostile by the prosecution on the ground that he had stated to the I.O. that the night of 4.3.2000 was the night of Shivarati Festival that there was arrangement of Shivapuja near Kali Mandir at Ramkrishnapur and he and other co-villagers attended the Kali Mandir and that he found the appellants assaulting the deceased causing thereby his death. P.W.13 is Dr. Pran Gopal Bhattacharjee who held post-mortem examination over the body of the deceased to find that the deceased sustained multiple cut injuries numbering about five on different parts of his body and death was ante-mortem on account of those injuries and homicidal. 6. Evidence of P.W.1 is that the appellants murdered her husband and she found them running near Kalitala with sword at about 10 p.m., that she found the deadbody of her husband opposite to Kalitala with bleeding injuries and that the place of occurrence was lighted enough as it was a day of Shibaratri. P.W.8 Anil Hazra says that at about 9.30/10 p.m. which was the night of Shivaratri there was a quarrel between the deceased and the appellants following which the appellants took out sword and caused his death. According to this witness, the incident took place infront of Kalibari where on account of Shivaratri a fair had taken place. Evidence of P.W.9 Duranta Haldar goes to the effect that the deceased was murdered at 9.30/10 p.m. at 4.3.2000 by the side of shop of P.W.3 Subol Mal which was again near Shiva and Kali Mandir which again is described as the crossing of Daspara and Ramkrishnapur-Gotalahat Road. There was light of generator in the precincts of the fair at the time of occurrence and that he found the appellants having altercation with the deceased following which both the appellants assaulted the deceased by means of sword on the road and on seeing the incident of murder he rushed to his home out of fear. He has further said in his evidence that Kali Mandir and Shiva Mandir are adjacent to Kalitala where the occurrence took place. 7. Mr. He has further said in his evidence that Kali Mandir and Shiva Mandir are adjacent to Kalitala where the occurrence took place. 7. Mr. S. S. Imam, learned Advocate for the appellants submitted before us at the first instance that apart from the fact that the FIR was a delayed one-the lodgment of the FIR was at 3.15 p.m. on 5.3.2000 while occurrence took place at 10 p.m. on 4.3.2000 the FIR cannot be said to have been really lodged at 3.15 p.m. on 5.3.2000 because according to P.W.1 she had met Bidyut Mondal, her own relative, who had scribed the FIR at the police station at 4.30 p.m. and this discrepancy cannot be said to be a minor one and further non-examination of vital witness namely Bidyut Mondal makes the FIR a suspect one. Secondly, it is submitted that P.W.12 the I.O. found the deadbody only at 9/9.30 a.m. on 5.3.2000. Thirdly, if according to P.W.11 S.I. S. S. Das it takes about 40 minutes to reach the place of occurrence within the Mouza Kriparampur from the Bishnupur Police Station then it was impossible for him to hold inquest over the deadbody at 3.05 a.m. in the morning of 5.3.2000. Fourthly, evidence of P.W.1, P.W.8 and P.W.9 as also of the other witnesses to the effect that there had taken place a fair on account of Shivaratri at Kalitala and that the place was lighted on account of the fair by generator has been falsified by evidence of I.O. who has said that there was no fair on the relevant day at the place of incident and when there was held no fair consequently no lighting of the area was necessitated and accordingly witnessing the incident by P.W.1, P.W.8 and P.W.9 was absolutely impossible. Mr. Imam then contended that given a close look at the evidence of P.W.1 it does not appear that she had really seen the incident because when she says in her examination-in-chief that she found the deadbody of her husband opposite to Kalitala in her village of Ramkrishnapur and when she further says in her cross-examination that it takes about five minutes on foot to go from her house to Kalitala where occurrence took place, it was impossible on her part to see the appellants running near Kalitala of the village with sword in their possession just after the incident. Fifthly, Mr. Fifthly, Mr. Imam argued that evidence of P.W.8 and P.W.9 who speak of assembly of people on account of fair and lighting of the area on account thereof has been contradicted by I.O. who says that the witnesses did not tell him that the area was lighted by generator. It is further argued by Mr. Imam that P.W.9 did not tell the I.O. that he found the victim being assaulted by means of a sword. According to Mr. Imam motive behind murder was not established because there is no evidence of any animosity between the appellants and the deceased and P.W.8 and P.W.9 cannot be said to be the witnesses who had really seen the incident of murder. Further it is argued that the wearing apparels of the deceased was not seized nor was the same sent to the FSL for chemical examination. 8. Mr. Abdus Salam, the learned Advocate for the State-respondent submitted that evidence of almost all the witnesses including those who turned hostile had made it abundantly clear that the occurrence took place at Kalitala where there are Shiva Mandir and Kali Mandir and the night of the incident was flooded with the light through generator because it was the day of Shivaratri and a fair took place on account thereof. As such, Mr. Salam contends that presence of P.W.8 and P.W.9 at the place of occurrence as affirmed by them cannot be negatived with no reason whatsoever and both the witnesses have convincingly said in their testimonies on oath that following an altercation between the appellants and the deceased the two appellants by means of sharp cutting weapon caused bleeding injuries to the deceased causing his death instantaneously. According to Mr. Salam there is no inherent contradiction between evidence of P.W.8 and P.W.9 and also no contradiction between the evidence of P.W.8 and P.W.9 on the one hand and the evidence of the I.O. that can make them unreliable, more particularly when P.W.8 and P.W.9 cannot be said to be interested witnesses, nor are they relations of the victim. Mr. Salam there is no inherent contradiction between evidence of P.W.8 and P.W.9 and also no contradiction between the evidence of P.W.8 and P.W.9 on the one hand and the evidence of the I.O. that can make them unreliable, more particularly when P.W.8 and P.W.9 cannot be said to be interested witnesses, nor are they relations of the victim. Mr. Salam argues that a stray statement of the I.O. that there was no fair held at the time of occurrence at Kalitala cannot outweigh the evidence of the eye-witnesses who had really assembled at Kalitala on account of Shivaratri and it is not the evidence of the I.O. that he had remained present at Kalitala between 9/9.30 p.m. on 4.3.2000 and this evidence of I.O. about absence of fair at Kalitala is of no significance. 9. Having gone through oral evidence of the witnesses with special reference to the evidence of P.W.1, P.W.8 and P.W.9 and having heard the submissions of the learned Counsel for the appellants and that of the State-respondent we come to find that even if evidence of P.W.1 is said to be unbelievable because of the distance between her house and Kalitala being five minutes walk, evidence of P.W.8 and P.W.9 cannot be discarded on any logic whatsoever. The place of occurrence as has appeared very consistently from evidence of all the important witnesses is Kalitala within the village of Ramkrishnapur, and Shiva Mandir and Kali Mandir are situated at Kalitala at the crossing of Daspara and Ramkrishnapur Gotalahut Road. Evidence of P.W.3, P.W.8 and P.W.9 have made it specific that the place of occurrence is near the stall of P.W.3 which is at Kalitala and also near the Kali Mandir and Shiva Mandir. Evidence of P.W.3, P.W.8 and P.W.9 get confirmation from evidence of the I.O. who says that as per his record of his investigation the incident took place at Kalitala and at the northern side of Kriparampur and Gotala. 10. After it is established that the place of occurrence is near Kali Mandir and Shiva Mandir at Kalitala and by the side of the stall of P.W.3 let us examine whether there was light in and around the area on the night of 4.3.2000. 10. After it is established that the place of occurrence is near Kali Mandir and Shiva Mandir at Kalitala and by the side of the stall of P.W.3 let us examine whether there was light in and around the area on the night of 4.3.2000. The witnesses who claimed to have seen the incident and the witnesses who are reported of the incident have said in one voice that it was the night of Shivaratri and on account of that a fair was held at Kalitala and in connection with the fair there was lighting arrangement with the help of generator. It could not be elicited from cross-examination of the I.O that any of the witnesses had stated to him that the area was dark and that there was no light at Kalitala. A stray statement of the I.O in his cross-examination that there was no fair held at Kalitala cannot be accepted for two reasons, firstly because not a single witness did tell him in positive terms that there was no fair held and that there was no lighting arrangement in the area and secondly, because I.O. does not claim that he was present at Kalitala on the night of 4.3.2000. P.W.9 not telling the I.O. that there was lighting arrangement at the time cannot be construed to mean that P.W.9 told him that there was no lighting arrangement. By way of cross-examination it could not be elicited from the I.O. that P.W.1, P.W.3, P.W.8 and P.W.9 did tell him that no fair was held and no lighting arrangement was there. 11. In the context as above evidence of P.W.8 and P.W.9 who claimed their presence at Kalitala at the time of the incident and having witnessed the incident of murder cannot be discredited with falsehood. It is the evidence of P.W.8 that opposite to the Kalibari on the day of Shivaratri when he was in the mela place the appellants assaulted the deceased by the side of the shop of P.W.3 in his presence following a quarrel between them. It is significant to note that in spite of lengthy cross-examination of the I.O. no contradiction between the evidence of P.W.8 and the statement of P.W.8 under section 161 Cr.PC has been discovered and there is no ground to say that P.W.8 did not see the occurrence. It is significant to note that in spite of lengthy cross-examination of the I.O. no contradiction between the evidence of P.W.8 and the statement of P.W.8 under section 161 Cr.PC has been discovered and there is no ground to say that P.W.8 did not see the occurrence. Alleged contradiction in evidence of P.W.9 to the effect that P.W.9 did not tell the I.O. that the incident took place at 9.30/10 p.m. by the side of the tea stall of Subal Mal near Kali Temple and near Daspara Ramkrishnapur Gotalahut crossing is not a contradiction, firstly because that the incident took place at between 9.30 p.m. and 10 p.m. and that it took place by the side of tea stall of P.W.3 near Kali Temple is a matter of fact largely established from overwhelming evidence of the witnesses. Again evidence of the I.O. that P.W.9 did not tell him that the deceased had to go to Amtala every day as a lobourer at 9.30/10 p.m. is again no contradiction because the I.O. has said in the next sentence that P.W.9 told him that the deceased had to go every day during that time to work as a lobourer at a godown. It cannot be lost sight of the fact that I.O. did never say in his cross-examination that P.W.9 did not tell him that he had seen the appellants assaulting the deceased and when there is no such statement made by P.W.9 denying to have seen the incident to the I.O. it cannot be said that evidence on oath of P.W.9 which materially does not affect this statement before the I.O. with regard to having seen the incident of murder should be discarded. Therefore, both P.W.8 and P.W.9 have remained firm in their evidence that they had seen the incident of murder in their own eyes at Kalitala. As said above, even if evidence of P.W.1 is discarded all through evidence of P.W.8 and P.W.9 is sufficient to record the fact that incident of murder was witnessed by P.W.8 and P.W.9 and these two witnesses are neither interested nor are they relations of the deceased. 12. In the circumstances, the delay in lodgment of the FIR is of no consideration. The submission of Mr. 12. In the circumstances, the delay in lodgment of the FIR is of no consideration. The submission of Mr. Imam that if according to P.W.1 she had met Bidyut Mondal, her relative through whom he got the FIR scribed at the P.S. at 4.30 p.m. on 5.3.2000 the FIR could not have been lodged with the O.C. Bishnupur P.S at 3.15 p.m. on 5.3.2000 cannot be accepted because registration of the case at 3.15 p.m. is apparent from the official record which is the formal FIR and in the circumstances statement of P.W.1, a rustic village lady that Bidyut Mondal met her at the P.S. at 4.30 p.m. does not destroy the prosecution case. Mr. Imams contention that if according to P.W.1 it takes 40 minutes to reach the place of occurrence from Bishnupur P.S. then inquest could not have been held at 3.05 a.m. at the place of occurrence because prior to 3.05 a.m. there was no receipt of the incident of murder at the police station cannot be upheld because it has been overlooked by Mr. Imam that as per the inquest report (Ext.2) P.W.11 received the information over telephone that a deadbody was lying by the side of a road of Ramkrishnapur at 3.05 a.m. on 5.3.2000 and on receipt of information he proceeded to the spot and held inquest at 3.45 a.m. Therefore, it cannot be said that inquest was held at 3.05 a.m. in the morning. I.Os statement in cross-examination that he found the deadbody at 9/9.30 a.m. on 5.3.1990 cannot be the premise either to hold that occurrence did not take place at 9/9.30 a.m. on 4.3.1990 or that inquest was not held at 3.45 a.m. on 5.3.1990 because as I.O. P.W.12 came to the spot between 9/9.30 a.m. Non-examination of Bidyut Mondal, the scribe of the FIR of no avail because Bidyut Mondal was reported of the incident by P.W.10 and he was not the eye-witness to the incident and his relevance was to the extent of scribing the complaint, the maker of which has been examined as P.W.1. Though he turned hostile, P.W.3 has made it clear that the incident occurred within a distant of 100 yards from his shop on the day of a fair on account of Shivaratri and when cross-examined by the prosecution this witness has stated that on the night of Shivaratri the deceased after completion of supper was proceeding to Amtala like other days to work as a day labourer. 13. The argument of Mr. Imam that the blood-stained apparels of the deceased were not seized and were not sent to FSL for chemical examination is not of importance in view of evidence being in abundance to the effect that the occurrence took place at Kalitala and it was directly witnessed by P.W.8 and P.W.9. 14. The argument of Mr. Imam that motive behind the murder was not established can be repelled by the words that evidence of P.W.8 and P.W.9 have made it clear that there was a quarrel between the deceased and the appellants following which the incident took place and it is needless to say that establishment of motive behind every murder is not a sine qua non of the establishment of a case of murder. 15. Mr. Imam, learned Advocate for the appellants took us to four decisions of the Honble Supreme Court namely (1) Ramsewak & Ors. vs. State of M.P., as reported in 2004 (11) SCC 259 , (2) Buta Singh vs. State of Punjab, as reported in 1991 SCC (Cri) 494, (3) Karunakaran vs. State of Tamil Nadu, as reported in 1976 SCC (Cri) 52, (4) Lakshmi Singh & Ors. vs. State of Bihar, as reported in 1976 SCC (Cri) 671. We have gone through the decisions but are of the opinion that these decisions which were in the context of facts and circumstances of each case are not applicable to the instant appeal. In the first mentioned case there was a doubt in respect of the place of occurrence and in that context the Honble Supreme Court observed that no blood was found on the spot wherefrom the deadbody was recovered. In the instant case before us the place of occurrence has been consistently told by the witnesses to be Kalitala, more exactly by the side of the stall of P.W.3 and inquest was held at that place where body had lay. In the instant case before us the place of occurrence has been consistently told by the witnesses to be Kalitala, more exactly by the side of the stall of P.W.3 and inquest was held at that place where body had lay. In the reported case the prosecution sought to build a case upon a chance witness which does not arise here. In the second mentioned case two versions were presented before the Honble Supreme Court and benefit of doubt was accorded accordingly. In the facts of that case it was held that the FIR which was delayedly lodged and delayedly sent to the Magistrate did not come into existence at the time shown by the prosecution. This decision based on the factuality of that case cannot be made applicable to the appeal before us. The third case is again based on facts of that case and we are unable to hold that the evidence of the witnesses in the instant appeal has stood discredited by the FIR. The fourth decision dealt with ascendance of the accused, related witness and appreciation of medical evidence which are having no relevance to the facts and circumstances of the appeal before us. 16. Regard being had to the facts and circumstances of the case as well as evidence on record we are of the considered opinion that the prosecution case was well-built and the learned Trial Court did not commit any error in recording conviction and sentence against the two appellants. 17. We, therefore, dismiss the appeal and confirm the judgment and order of the learned Trial Court. 18. A copy of the judgment shall be sent to the Superintendent of the concerned Correctional Home where the two appellants are lodged upon conviction so as to apprise them about the fate of their appeal and a copy of the judgment along with the L C R shall be sent to the learned Trial Court for information and necessary action. I agree. Appeal dismissed.