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2013 DIGILAW 11 (CAL)

Taimur Haque v. STATE OF WEST BENGAL

2013-01-10

JOYMALYA BAGCHI

body2013
JUDGMENT The revisional application is directed against the judgment and order of acquittal dated 21.03.2009 passed by the learned Sessions Judge, Fast Track 2nd Court, Jangipur, Murshidabad in Sessions Serial No. 144/04 (Sessions Trial No. 3(1) 2005). The prosecution case as alleged against the accused persons is to the effect that on 14.05.2003 at about 12 noon one Nairul Sk. (P.W. 7) had quarrelled with one Motha Sk. at Shyampur Ghat. Thereafter around 1 p.m., the accused persons came to the locality of Taimur Haque (P.W. 1), father of Nairul, being armed with bombs; at that time, the victim Safiqul Islam @ Bhola, the eldest son of Taimur Haque, was returning from his matrimonial home situated in the same village; on seeing Safiqul, the accused persons hurled bombs at him; to save his life Safiqul tried to take shelter inside the house of Saifuddin Sk. (P.W. 11); at that time, he was hit by one of the bombs in the back and having suffered severe injuries fell in front of the house of said Saifuddin Sk. and died instantaneously. At the time of occurrence, Taimur and his wife rushed to the spot to save Safiqul and both of them sustained injuries; Raina Bibi (P.W. 5), daughter of Taimur gave telephonic information to Suti Police Station and police arrived at the place of occurrence, held inquest over the body of Safiqul and sent his dead body for post mortem examination. Police received a written complaint from Taimur Haque resulting in the registration of the instant case being Suti P.S. Case No. 69 of 2003 dated 14.05.2003 under Sections 302, 324, 34 of the Indian Penal Code and Section3/4 of the Explosive Substance Act. In conclusion of investigation, charge-sheet was filed against the accused persons under Sections 286, 302, 324, 34 of the Indian Penal Code. The case was committed to the learned Court of the Additional Sessions Judge, Jangipur and thereafter transferred to the Court of the learned Additional Sessions Judge, Fast Track 2nd Court, Jangipur, Murshidabad for trial and disposal. Charges were framed against the accused persons under Sections 286, 324, 302, 34 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. The prosecution examined as many as 19 witnesses and exhibited number of documents in the course of trial. Charges were framed against the accused persons under Sections 286, 324, 302, 34 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. The prosecution examined as many as 19 witnesses and exhibited number of documents in the course of trial. In conclusion of trial, the trial Judge acquitted the accused persons of all the charges levelled against them. Hence, the instant revisional application at the behest of the petitioner/defacto complainant. It appears that in the instant case the prosecution has primarily relied on evidence of Taimur Haque (P.W. 1), Surjahan Bibi (P.W. 2) Raina Bibi (P.W. 5), sister of Safiqul, deceased, Raina Bibi (P.W.6), wife of Safiqul, deceased, Nairul Sk (P.W. 7) and Rakibul Sk. (P.W. 16) who claim to be eye witnesses of the case. The learned trial Judge disbelieved such eye witnesses on the following grounds: That the place of occurrence in the instant case had not been established beyond reasonable doubt as it is the version of the witnesses that the incident occurred in front of the house of Saifuddin Sk. (P.W. 11) but the inquest in respect of the dead body was held in front of the house of his brother Sahabuddin; the telephonic message received by P.W. 17 from P.W. 5 which was registered as G.D. Entry No. 465 dated 14.05.2003 was not exhibited and that evidence of P.W. 17 with regard thereto was that “somebody had been killed by somebody throwing bomb in Islampur village”; the narration of the incident in Court by P.W.s 1, 2, 5, 6, 7 and 16 that the accused Rasul Sheikh hurled bomb under the instruction of accused Akhter is contrary to the first information report; the narration of the incident by Raina Bibi (P.W. 6) is inconsistent with the version of Nairul Sk. (P.W. 7); the motive as portrayed by the prosecution runs contrary to the prosecution version of the incident and the medical report as proved by P.W. 15 does not establish the injuries upon P.W. 2 as bomb blast injuries. Learned counsel appearing for the petitioner submitted that the trial Judge had acquitted the accused persons on the basis of perverse findings and without taking into consideration admissible evidence on record. Learned counsel appearing for the petitioner submitted that the trial Judge had acquitted the accused persons on the basis of perverse findings and without taking into consideration admissible evidence on record. It was his further submission that the version of the eye witnesses were substantially corroborated by one another and the trial Judge erred in law in relying on minor and inconsequential variations to reject their evidence. He forcefully argued that the trial Judge failed to consider that there was no shifting of the place of occurrence and the residence of Sahabuddin were adjacent to that of Saifuddin, P.W. 11 as they were brothers and resided in separate mess. He submitted that the trial Judge erred in law in relying on a singular statement of P.W. 11 that Sahabuddin resided one kilometer away to his house to disbelieve the otherwise consistent eye witnesses’ version in the prosecution case. Mr. Basu, Sr. Counsel, appearing for the accused persons submitted that the judgment was a well reasoned one and the trial Judge had taken into consideration the entire evidence on record and after analyzing the same had come to a just conclusion of acquittal. He submitted that in exercise of revisional jurisdiction a reasonable view of the trial Court ought not to be substituted by another view even if the latter appears to be a reasonable one. In support of his submission, Mr. Basu relied on AIR 1986 SC 1721 . Mr. Basu further submitted that the evidence of the so-called eye witnesses are contrary to one another and the prosecution case suffered from inherent improbabilities which has not been explained away. He further argued that in the absence of explanation as to how the dead body of the victim shifted from the Courtyard of P.W. 11 to the front of the house of Sahabuddin by the prosecution the benefit of doubt was rightly extended to the accused persons. In the backdrop of such submission, the moot issue appears to be whether the trial Judge had committed an error in law in not relying on the evidence of the prosecution witnesses who claimed to be eye witnesses of the case. In the backdrop of such submission, the moot issue appears to be whether the trial Judge had committed an error in law in not relying on the evidence of the prosecution witnesses who claimed to be eye witnesses of the case. The primary issue on which the learned trial Judge disbelieved the eye witnesses’ version is that the dead body was found at the time of inquest in front of the house of Sahabuddin and not in front of the house of Saifuddin, P.W. 11, where the eye witnesses claimed the assault had occurred. The trial Judge relied on evidence of P.W. 11 who stated that the distance between his house and that of Sahabuddin Sk. is one kilometer to come to the conclusion that the place of occurrence had not been proved beyond reasonable doubt. It appears that while coming to such conclusion, the learned trial Judge was totally oblivious of the evidence of Nairul Sk., P.W. 7, who in his cross examination stated as follows : “………….Saifuddin and Sahabuddin are two brothers and their homes are adjacent.” “………….Saifuddin resides with his wife and children but his brothers reside in separate messes.” There is complete absence of any discussion of these pieces of evidence of Nairul Sk. with regard to the distance between the house of P.W. 11 and his brother Sahabuddin in the body of the impugned judgment. It, therefore, appears that the finding of the trial Judge that the house of Sahabuddin is situated about one kilometer away from that of Saifuddin Sk., P.W. 11 has been arrived at without taking into consideration relevant evidence on record and therefore the same is clearly a perverse one. That apart, it is the consistent evidence of all the prosecution witnesses including the hostile witnesses that the incident occurred in front of the house of P.W. 11, Saifuddin Sk. P.W. 17 who arrived at the place of occurrence also seized bloodstained earth in front of the house of Saifuddin Sk (P.W. 11). It may be apposite to refer to the seizure list being exhibit 1 wherein a bloodstained earth and a bloodstained bench had been seized from the place of occurrence. The learned trial Judge had not taken into consideration such contemporaneous incriminating circumstances in this case while arriving at his conclusion as to shift of place of occurrence. It may be apposite to refer to the seizure list being exhibit 1 wherein a bloodstained earth and a bloodstained bench had been seized from the place of occurrence. The learned trial Judge had not taken into consideration such contemporaneous incriminating circumstances in this case while arriving at his conclusion as to shift of place of occurrence. In doing so, the learned trial Judge was completely oblivious of the evidence of P.W. 7 and also other attending circumstances including the seizure of bloodstained earth in front of the house of Saifuddin Rejecting of version of prosecution witnesses who consistently deposed that assault took place in front of house of P.W. 11 on the specious plea that inquest over body was held in front of house of Sahabuddin (brother of P.W. 1) is therefore wholly untenable in law. That is a post occurrence aspect in the prosecution case and does not mitigate against the prosecution version of assault as it is possible the body was shifted to the different spot after the occurrence. The seizure of the bloodstained bench from the place of occurrence lends credence to such version. Doubt in the prosecution case must be reasonable and not a fanciful one based on inconsequential and irrelevant circumstances. For these reasons, I am of the considered view, rejection of the prosecution evidence on the perverse conclusion that the place of occurrence has shifted is wholly unwarranted in the facts and circumstances of the instant case. That apart, the other issues on the basis of which the learned trial Judge has rejected the evidence of the eye witnesses also are not tenable in law. It is a settled law that cryptic telephonic information by a witness cannot be construed as the first information report and such information cannot be the basis to discredit the prosecution case. The version of P.W. 17 that the telephonic communication made to him did not narrate the names of the accused or the identity of the victim therefore cannot be the basis to throw out the prosecution version that the witnesses including P.W. 6 (who claimed to have made the said telephone call) were eye witnesses of the occurrence. Moreover, the FIR in the instant case was promptly lodged by P.W. 1 when the police came to the spot. Moreover, the FIR in the instant case was promptly lodged by P.W. 1 when the police came to the spot. It is also trite law that previous statement of one witness cannot be said to be the basis to discredit all prosecution witnesses. The alleged contradictions with regard to the manner and cause of occurrence of the incident as narrated by the prosecution witnesses are minor in nature and they do not come to the root of the prosecution case so as to discredit the said witnesses. The narration of the incident in the first information report substantially corroborates the prosecution case and the variations therein with regard to the specific role of accused persons are not only natural but also immaterial as the consistent evidence is that all the accused persons being armed with bombs came to the place of occurrence where the victim was assaulted. The argument that the motive as portrayed by the prosecution renders the prosecution version improbable also does not hold water inasmuch as the accused persons being enraged with one of the family members of the P.W. 1 had come to their house and had indiscriminately attacked another family member causing his death. Moreso, when there is consistent eye witness evidence of murderous assault on the victim by the accused persons the same cannot be disbelieved on the anvil of lack of motive. The alleged inconsistency in the evidence of P.W. 6 (Raina Bibi) and Nairul (P.W. 7) as to the genesis of the incident is a minor one and does not detract them from being natural eye witnesses of the incident of assault. Rejection of the evidence of injured eye witness (P.W. 2) on the ground that P.W. 15 (doctor) could not say that it was bomb blast injury is contrary to the fundamental principles of criminal law. Undoubtedly, P.W. 2 was injured and had to be operated upon. She gave out the history of assault as ‘bomb blast injury’. P.W. 15 has not denied the same but merely has said it could not ascertain it. It is settled principle that ocular evidence prevails over medical opinion unless the latter is wholly inconsistent with the former. Such is not the case here. The trial judge committed an error in law in rejecting the evidence of P.W. 2 by relying on P.W. 15, as aforesaid. It is settled principle that ocular evidence prevails over medical opinion unless the latter is wholly inconsistent with the former. Such is not the case here. The trial judge committed an error in law in rejecting the evidence of P.W. 2 by relying on P.W. 15, as aforesaid. For the aforesaid reasons, I am constrained to hold the impugned judgment and order is based on illegal and perverse findings. The conclusions arrived at by the learned trial Judge is not in consonance with settled principles of criminal law and is liable to be set aside. The matter is remanded to the learned trial Court and the learned trial Judge is directed to proceed with the trial of the case from the stage of arguments under Section 234 Cr.P.C. and conclude the same preferably within a period of three months from the date of communication of the order. The revisional application is accordingly allowed. Lower court record be sent down at once. Urgent certified photostat copy of this order be given to the parties, if applied for, subject to compliance with all necessary formalities.