Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 1125 (CAL)

Sk. Anisur v. State of West Bengal

2014-12-02

NISHITA MHATRE, SAMAPTI CHATTERJEE

body2014
Judgment : Nishita Mhatre, J. 1. The appeals are directed against the decision of the Additional District and Sessions Judge Fast Track Court, Jhargram in Sessions Trial No.53/March/98 by the impugned judgment dated 24th February, 2006 the Trial Court has convicted both the appellants -Mohidul has been found guilty of the offence punishable under Section 302 while Anisur has been convicted under Section 302 read with Section 109 of the Indian Penal Code. Both of them have been sentenced to life imprisonment. In addition Mohidul has been directed to pay a fine of Rs.5,000/- (Rupees Five Thousand only) and in default of payment of fine, he is required to undergo simple imprisonment for a period of two years. Besides the jail sentence Anisur has been fined Rs.15,000/-(Rupees Fifteen Thousand only) and in default of payment of the fine, he has been sentenced to undergo simple imprisonment for three years. 2. Ashok Shit PW 4 was informed by one Kumed Mahato at 10.30 p.m. on 6th June, 1997 that somebody had been murdered in his newly constructed house. He rushed to the house where he had permitted hawkers from Murshidabad to reside. He heard a cry from the room “Save me”. The police from Belpahari Police Station arrived after being informed by Kumed Mahato. The door was broken open and they entered the room. They found Sahidul Sk. writhing in pain on the floor with a bleeding injury in his abdomen. A knife was lying near Sahidul. They went into another room and found a new boy sitting on the beam with a big dagger in his hand. Sahidul was taken to the Belpahari Hospital and the police took the persons sitting on the beam in his custody. The doctor recorded a statement of Sahidul which was made in the presence of the staff of the Hospital and PW 4. The victim mentioned that Mahidul had stabbed him in the abdomen with the knife. Sahidul died in the hospital after informing the doctor his home address. Ashok Shit filed the complaint and the FIR was registered. 3. It appears from the record that the statement of Mohidul was recorded under Section 164 of the Cr.P.C. However, that statement was not exhibited, nor is a copy of the same on the record before the trial Court. On the basis of that statement Anisur was arrested. Ashok Shit filed the complaint and the FIR was registered. 3. It appears from the record that the statement of Mohidul was recorded under Section 164 of the Cr.P.C. However, that statement was not exhibited, nor is a copy of the same on the record before the trial Court. On the basis of that statement Anisur was arrested. The statement was made on 9th June, 1997 and Anisur was produced before the Court on the same day. 4. The dying declaration of the victim has been recorded by the doctor, PW 9 at the Belpahari Hospital. The victim has mentioned therein that Mohidul had stabbed him in the abdomen an hour before he was brought to the hospital. The victim has also stated that he and Mohidul used to hawk aluminium articles at Belpahari. He mentioned that his boss stayed in Sagina Hotel in Kharagpur. The statement was recorded in the presence of two members of the hospital staff. They have signed the dying declaration along with PW 9. 5. An inquest was conducted in the hospital. This inquest report had been signed by PW 9 and PW 4, the complainant. 6. The post-mortem report indicated that the death was due to severe blood loss following the injury which was homicidal in nature. 7. PW 1 has written the complaint as dictated by PW 4. He has stated that he called the police to the place of occurrence, that is, the house of Ashok Shit. He has witnessed the seizure of certain articles from the room. However he had not seen the incident at all. 8. PW 2 is also a seizure witness. 9. PW 3 was present when the police broke open the door of Ashok Shit’s house where the incident occurred. He has mentioned that Mohidul and perhaps Sahidul the victim were tenants in Ashok Shit’s house. He had hawkers whom he had seen. He had stated that Mohidul hid on the beam just below the tiled roof of the room. According to this witness he was present when the injured victim was taken to the hospital. He claimed that the victim had mentioned the name of the assailant and that the doctor had probably recorded the same. 10. PW 4 Ashok Shit, the complainant has reiterated what he had stated in his complaint. According to this witness he was present when the injured victim was taken to the hospital. He claimed that the victim had mentioned the name of the assailant and that the doctor had probably recorded the same. 10. PW 4 Ashok Shit, the complainant has reiterated what he had stated in his complaint. He has mentioned the name of Anisur in his deposition and said that Sahidul and Anisur ate a meal in his hotel. He has stated that on the date of the incident Anisur was not present in the room which he had rented out to him and the other hawkers as he had gone home; only Sahidul and Mohidul were present in the room on 6th June, 1997. He has spoken about the dying declaration which was recorded by the doctor. As mentioned earlier PW 4 is a witness to the inquest report. He was also a witness to the seizure of the knife, bhojali and other articles including the blood-stained clothes from the room on 7th June, 1997. He has identified the bhojali and mentioned that at the time of seizure it was blood-stained and that there was no sign of blood when the knife was shown to him in Court. The witness has stated that when Sahidul was removed to the hospital the police were not present and it was only after he died that the accused Mohidul was arrested. According to this witness, after the seizure of the knife and bhojali they were not sealed in his presence nor was any label affixed on them. 11. PW 7 is the doctor who conducted the post mortem. He has stated that the victim sustained one injury on his right side and that it could have been caused by either the bhojali or the knife. 12. PW 9 is the doctor who recorded the dying declaration of the victim. He treated the victim immediately on being admitted in the Belpahari Hospital. He was categorical in his assertion while he has being cross-examined that the injury could not have been caused by the bhojali but only by the knife which was shown to him in Court. Surprisingly, the doctor has not been cross-examined about the state of mind of the victim when he has made the dying declaration. 13. He was categorical in his assertion while he has being cross-examined that the injury could not have been caused by the bhojali but only by the knife which was shown to him in Court. Surprisingly, the doctor has not been cross-examined about the state of mind of the victim when he has made the dying declaration. 13. PW 11 is the father of the victim who alleged that Anisur had hired Mohidul to kill his son. According to this witness, Anisur had taken a loan of Rs.30,000/- (Rupees Thirty Thousand only) from his son for constructing his house. as his bidi business was not doing well, Anisur told him to do business in aluminium good When his son asked for repayment of the loan as he was getting married and Anisur expressed his inability to repay the loan. Besides the bare word of this witness there is no material on record to substantiate his story that Anisur had hired Mohidul to kill his son Sahidul. 14. PW 12 is the uncle of the victim. He has also mentioned that Anisur, Mohidul and Sahidul used to hawk Aluminium utensils at Belpahari. This witness had no personal knowledge about the incident. He has spoken about the loan of Rs.30,000/- (Rupees Thirty Thousand only) being given to Anisur. Yet he could not say when the loan given to him. 15. PW 13 is the Investigating Officer. He was present when the door of the room of Ashok Shit’s house was opened. He stated that he found Sahidul lying on the ground, bleeding and that Sahidul informed him that Mohidul had assaulted him with a knife. The witness has also stated that he saw Mohidul holding a knife and sitting on the wooden beam. He arrested Mohidul. The witness prepared the inquest report. 16. PW 14 received the intimation. The G.D. Entry bearing No. 149 on 06.06.1997 pursuant to which he sent PW 13 to investigate the crime. This witness has seized the bhojali, examined witnesses and collected the dying declaration. This witness has mentioned that the statement of the accused was recorded judicially after he was forwarded to the Court. On the basis of the disclosure made by Mohidul he arrested Anisur from Kharagpur. According to the witness, the knife, clothes and other articles were sent to the Forensic Science Laboratory. However, no report was submitted. This witness has mentioned that the statement of the accused was recorded judicially after he was forwarded to the Court. On the basis of the disclosure made by Mohidul he arrested Anisur from Kharagpur. According to the witness, the knife, clothes and other articles were sent to the Forensic Science Laboratory. However, no report was submitted. He has contradicted the version of PW 11 that Anisur hired Mohidul to kill his son. He has also conceded that no investigation regarding the loan of Rs.30,000/- (Rupees Thirty Thousand only) was carried out. He has mentioned that the case has not been started pursuant to the G.D. Entry No. 149 dated 06.06.1997 which was recorded at 10.45 p.m. The FIR was registered at 12.45 a.m. being G.D. Entry No. 151. 17. Mr. Manik Baksi, the learned Counsel for Anisur has submitted that the story of Anisur having acquired a loan of Rs.30,000/- (Rupees Thirty Thousand only) from Sahidul is not borne out from the evidence on record. He pointed out that besides the bare word of PWs 11 and 12 there is no evidence to that effect; neither is there any evidence to indicate that the victim had demanded the amount from Anisur. According to the learned Counsel, there was no incriminating evidence at all against Anisur and, therefore, his conviction by the Trial Court was unsustainable. He has drawn our attention to the fact that the place of occurrence has not been mentioned in the FIR. He has also stated that the Investigating Officers in this case have been completely negligent and have not cared to seal and label the alleged weapon of assault which was found at the scene of offence. The learned Counsel has submitted that though there is a reference to the fact that Mohidul’s statement was recorded under Section 164 Cr.P.C., the document itself is not on record. It has not been exhibited and, therefore, according to the learned Counsel, the contents of that document are not before the Court. In these circumstances he urges that if indeed there is a confessional statement made by Mohidul which is inculpatory and which implicates Anisur, it cannot be accepted as the statement is not on record. He submitted that in any event there must be other evidence on record adduced by the prosecution which incriminates Anisur without which the confessional statement of co-accused cannot be relied upon. He submitted that in any event there must be other evidence on record adduced by the prosecution which incriminates Anisur without which the confessional statement of co-accused cannot be relied upon. He relied on the judgments in Nathu v. State of Uttar Pradesh reported in AIR 1956 Supreme Court 56 and Pancho v. State of Haryana reported in AIR 2012 Supreme Court 523 in support of his submission. The learned Counsel then pointed out that the circumstance of Mohidul having made a confessional statement incriminating Anisur has not been put to Anisur when he was examined under Section 313 of the Cr.P.C. Therefore, according to the learned Counsel, neither the statement nor any evidence relating to that statement can be accepted. He has also brought to our notice to the judgments in the case of State of Rajasthan v. Rajaram reported in AIR 2003 Supreme Court 3601 which relates to the assessment of circumstantial evidence. He urged that there was no eye-witness to the incident and therefore, according to him, the inference of guilt against Anisur can be justified only when all incriminating facts and circumstances are found incompatible with his innocence. 18. Mr. Gupta the learned Counsel for the State has urged that there is no need for us to interfere with the decision of the Trial Court as it is based on cogent evidence. He has pointed out that the evidence of PW 14 makes it amply clear that the statement of Mohidul had been recorded under Section 164 of the Cr.P.C. on 9th June, 1997 by the learned Magistrate. He has drawn our attention to the record which indicates the order of the learned Magistrate passed while recording the statement under Section 164 wherein the learned Magistrate has cautioned Mohidul that the statement could be used against him. The learned Magistrate has also recorded that the accused was making the statement free from duress, coercion and any threat from the police. Mr. Gupta urged that this statement should be considered by us as it is not exculpatory and incriminates Anisur. 19. We are not inclined to accept this submission of Mr. Gupta. It may be true that a statement under Section 164 of the Cr.P.C. of Mohidul was recorded by the learned Magistrate. However, that statement is not on record. The Magistrate was not examined as a witness. Therefore, the statement has not been exhibited. 19. We are not inclined to accept this submission of Mr. Gupta. It may be true that a statement under Section 164 of the Cr.P.C. of Mohidul was recorded by the learned Magistrate. However, that statement is not on record. The Magistrate was not examined as a witness. Therefore, the statement has not been exhibited. Thus, we cannot draw conjectures or surmises about the contents of this statement. Therefore, the statement will be of no consequence in the present case. 20. Mr. Gupta has pointed out that the motive for the crime in case of Mohidul was not necessary to be established as he was found in the room with the injured victim holding a sharp edged weapon. He submitted that the dying declaration which is on record incriminates Mohidul and, therefore, it is sufficient to convict him. He has also pointed out the evidence on record which points to the guilt of Mohidul. According to the learned Counsel, the testimony of PWs 4, 7 and 9 supports the case of the prosecution while PW 4 has described the scene of offence and the fact that Mohidul was sitting on a beam holding a knife trying to hide from the police who had broken open into the room. The evidence of PWs 7 and 9 also, according to Mr. Gupta, point to the fact that the knife had caused the injuries and, therefore, Mohidul was responsible for the crime. 21. Mr. Gupta has relied on the dying declaration of the victim and submitted that there was no reason for the doctor who was an independent witness and the other witnesses to the dying declaration to record a statement which was not true. Learned Counsel for Mohidul has submitted that it is difficult to believe that the victim could have made any statement to the doctor. He was admitted at 11.30 p.m. that is within 20 minutes. According to learned Counsel, therefore, it is impossible that the victim would have been in a frame of mind to state the name of his assailant. 22. The dying declaration has been recorded by PW 9. It has been witnessed by two members of the staff of the hospital. It is true that the doctor has not mentioned the frame of mind of the victim when the dying declaration was recorded. However, there is no cross-examination of the doctor on this point. 22. The dying declaration has been recorded by PW 9. It has been witnessed by two members of the staff of the hospital. It is true that the doctor has not mentioned the frame of mind of the victim when the dying declaration was recorded. However, there is no cross-examination of the doctor on this point. In these circumstances, there is no reason to disbelieve the recorded statement, as the doctor and the staff of the hospital are independent witnesses who are in no way concerned with either the victim or the appellants. The statement of the victim has implicated Mohidul in no uncertain terms. 23. Unfortunately, the investigation in this case is extremely shoddy. The Investigating Officer PW 14 who seized the weapons claims that he sent them to the Forensic Science Laboratory as there were bloodstained. However, he did not care to obtain the report of the laboratory. There is evidence to show that these weapons after being seized were not sealed and labeled. 24. On scanning the evidence we are of the opinion that there is no evidence at all which incriminates Anisur. He was not present when the room was opened; nor is there any evidence to show that he had abetted the crime. In these circumstances although PWs 12 and 13 have tried to implicate Anisur by stating that his motive for killing Sahidul was the demand for repayment of the loan, there is no other evidence except the bare words of these persons. Moreover, the statement of PW 12, the victim’s father that Anisur had hired Mohidul to kill Sahidul is contradicted by the Investigating Officer. Therefore, Anisur deserves to be given the benefit of doubt. 25. However, in the case of Mohidul he was found clutching the knife which was blood-stained in a closed room with the injured victim. There was no possibility of any other person entering the room. The dying declaration implicates him and, therefore, the decision of the Trial Court in respect of Mohidul must be upheld. 26. Accordingly, the Criminal Appeal No. 570 of 2007 is allowed. Anisur is acquitted by giving him the benefit of doubt. The Criminal Appeal No. 688 of 2006 is dismissed. 27. The application being CRAN 3806 of 2014 filed in Criminal Appeal No. 570 of 2007 has become infructuous. 28. 26. Accordingly, the Criminal Appeal No. 570 of 2007 is allowed. Anisur is acquitted by giving him the benefit of doubt. The Criminal Appeal No. 688 of 2006 is dismissed. 27. The application being CRAN 3806 of 2014 filed in Criminal Appeal No. 570 of 2007 has become infructuous. 28. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.