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2014 DIGILAW 78 (TRI)

Md. Badrul Haque v. State of Tripura

2014-02-13

DEEPAK GUPTA, U.B.SAHA

body2014
JUDGMENT Deepak Gupta; C.J.:- This appeal by the convicted accused is directed against the judgment dated 15-06-2012 passed by the learned Additional Sessions Judge, North Tripura, Dharmanagar in Case No. S.T. 27(NT/D) of 2011 whereby the accused was convicted of having committed an offence punishable under Section 304 part II of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for 10(ten) years and pay fine of Rs. 3,000/- and in default of payment of fine to suffer further rigorous imprisonment for 3(three) months. Briefly stated, the prosecution case is that PW-1, Liakat Ali, runs a shop near the Churaibari Railway godown. According to the prosecution, on 21-05-2009 at about 9-30 p.m., the accused Badrul Haque came inside the shop of this witness. Victim Samu Miah alias Chamu Miah also sat in the verandah of the shop. When the train from Karimganj side came, the accused took out a sharp edged weapon and inflicted several blows of the same on Samu Miah who raised his hand and tried to save the blows. Due to the injuries inflicted, the thumb of the right hand of Samu Miah was severed and fell on the ground. After sometime, the police came from Churaibari Police Station and the victim was removed to the Kadamtala Hospital in a Fire Brigade. Thereafter, PW-1 got the FIR scribed from PW-2 and this was submitted in Police Station Churaibari at about 11-35 p.m., i.e. within two hours of the incident. 2. On the basis of this FIR, the police conducted investigation and after collecting evidence, charge-sheet was filed against the accused for having committed the murder of Samu Miah. The accused pleaded not guilty and claimed trial. Hence, this appeal by the accused. 3. We have heard Mr. Ratan Datta, learned counsel for the appellant, and Mr. R.C. Debnath, learned Addl. Public Prosecutor for the respondent-State. 4. The accused pleaded not guilty and claimed trial. Hence, this appeal by the accused. 3. We have heard Mr. Ratan Datta, learned counsel for the appellant, and Mr. R.C. Debnath, learned Addl. Public Prosecutor for the respondent-State. 4. The main grounds raised by Sri Datta, learned counsel for the appellant, are:-- (i) That, the police already had information about the incident regarding which G.D. entry was recorded, but the same was not produced and hence, the complaint cannot be treated as an FIR; (ii) That, one Islam Uddin who was the eye witness was not examined; (iii) That, the victim remained alive for 25 days after the incident, but was never examined; (iv) That, the Doctor who conducted the postmortem examination on the deceased was not examined; (v) That, in the 313 statement, the medical evidence regarding the nature of injuries and the postmortem report were not put to the accused; (vi) That, the weapon of offence was initially stated to be a 'dao', but what was seized was a 'bhujali' and nothing has been produced in Court. 5. PW-1, Liakat Ali, the informant, stepped into the witness box and stated that when he was sitting in his shop at about 9-30 p.m., Chamu Miah came to his shop. About the same time, the accused Badrul Haque also came to his shop and purchased a cigarette. At that time, a train came from Karimganj side when suddenly Badrul pulled out a 'dao' and inflicted blows of the 'dao' on the person of Chamu Miah who was sitting on a bench. When they raised an alarm, Badrul ran away. One Islam Uddin was also present in the shop when the occurrence took place. Chamu Miah after receiving the injuries raised an alarm and went towards the shop of Tapan Deb and fell outside the shop. Chamu Miah received severe injuries on his person and the thumb of his right hand was severed and fell in the shop of the witness. Thereafter, the Fire Brigade came and took the injured to the hospital. The police also came to the spot. According to the claimant, he lodged the ejahar with the police which was written by Bijan Dhar and he put signature on the document. Chamu Miah was first shifted to the hospital at Dharmanagar and later to the G.B. Hospital, Agartala where he died after some days. The witness identified the accused. The police also came to the spot. According to the claimant, he lodged the ejahar with the police which was written by Bijan Dhar and he put signature on the document. Chamu Miah was first shifted to the hospital at Dharmanagar and later to the G.B. Hospital, Agartala where he died after some days. The witness identified the accused. In cross-examination, he states that Chamu Miah was sitting on a bench while Badrul was standing. He also states that the accused took out the 'dao' from the back side of his body from inside the shirt and assaulted the victim. According to him, after the incident he went to the house of Bijan Dhar who wrote the ejahar and then he handed over the ejahar to the Police Officer. He admits that in the ejahar it is mentioned that the accused took out the 'dao' from the waist. At the time of incident, there was no electricity in his shop, but a lantern was burning. He denied the suggestion that the accused did not attack Chamu Miah. PW-2, Bijan Dhar, is the scribe of the ejahar. He states that he wrote the ejahar immediately after the occurrence at the instance of PW-1. PW-3, Tapan Deb, states that about 9-30 p.m. when he was in his shop at Churaibari, he heard somebody crying that Badrul had assaulted him. That person fell down outside the shop in a bleeding condition. He recognised the person as Chamu Miah. He identified the accused Badrul in Court. According to him, at the time of incident there was no electricity in his shop and he was working with the light of a candle. PW-4, Mst. Atarjan Bibi, is the widow of the deceased, but her evidence is not relevant for the purpose of deciding this case. PW-5, Abdul Rahim, is the brother of the deceased and according to him, his brother remained admitted at Dharmanagar Hospital for 4(four) days and was able to speak. He also states that at 9-30 p.m. at night while he was in a meeting, he received a telephonic call that his brother had been assaulted by Badrul Haque. He then rushed to the spot. The evidence of PW-6, 7, 8, 9, 10, 11, 12 and 13 is not relevant. He also states that at 9-30 p.m. at night while he was in a meeting, he received a telephonic call that his brother had been assaulted by Badrul Haque. He then rushed to the spot. The evidence of PW-6, 7, 8, 9, 10, 11, 12 and 13 is not relevant. PW-14, S.I. Sunil Murasing, was the Officer-in-Charge of Churaibari P.S. and according to him, he received complaint from PW-1 on the basis of which FIR was lodged. PW-15, Kripamoy Chakma, was the ASI at Churaibari P.S. on 20-10-2008 and on that date about 7(seven) months prior to the occurrence he recorded two cross police reports under Section 107 Cr.P.C., one at the instance of Chamu Miah and another at the instance of Badrul Haque. PW-16, S.I. Madhusudan Chakma, is the Investigating Officer. According to him, he received telephonic information about the incident and rushed to the place of occurrence on 21-05-2009 after making G.D. entry No. 711. When he reached the place of occurrence, the Fire Service vehicle also came there and shifted the victim to Kadamtala PHC. According to him, he prepared the map of the place of occurrence and then recorded the statements of the witnesses. The accused absconded and later on was arrested. He came to know that the victim had died in G.B. Hospital on 31-05-2009. He states that since he was out of station in connection with deposition in other case and the victim succumbed to the injury, he could not record his statement. He also states that he was transferred on 14-06-2009 and then handed over the case docket to the Officer-in-Charge. In cross-examination, he states that he neither went to Kadamtala PHC to meet the victim nor did he go to Dharmanagar Hospital. He also did not send the blood for chemical test. PW-17, Dr. Pulak Barua, examined the victim at the Kadamtala PHC and found the following injuries:-- (i) Muscle and deep tissues severed off over mid left forearm; (ii) Muscle and deep tissues severed off over left lower thigh anteriorly; (iii) Muscle and deep tissues severed off over right wrist ventral aspect; He also states that the patient was critical and was referred to Dharmanagar Hospital after first aid. According to him, the injuries were caused by a sharp and heavy weapon. This is the entire evidence. 6. According to him, the injuries were caused by a sharp and heavy weapon. This is the entire evidence. 6. From the aforesaid evidence, it is clear that there was some previous enmity between the deceased Chamu Miah and the appellant Badrul Haque though the dispute was more than 6/7 months old. PW-1, the informant, who is also the main eye witness, has fully supported the prosecution case. Nothing has been extracted in his cross-examination which would indicate that he has made a false statement. No suggestion was put to him that his relations with the deceased were inimical. 7. Coming to the first contention of the appellant. No doubt, Islam Uddin has not been examined. However, the statement of Liakat Ali is totally reliable and we see no reason why his statement should not be believed. The incident occurred in his shop and he saw the incident. It is not necessary for all the witnesses to be called, but if the evidence of some witness is essential to the unfolding of the narrative, he must be called. 8. Sri Ratan Datta, learned counsel for the appellant, has relied upon the judgment of the Apex Court in AIR 1971 SC 1586 . That judgment has no applicability to the facts of this case. In that case, the Court found that the eye witnesses examined by the prosecution were partisan witnesses and some of them had enmity with the accused. It was in these circumstances that the Court held that the non-examination of Ramesh who was an impartial witness was essential to the unfolding of the narrative. In the present case, the eye witness examined, i.e. Liakat Ali is not related to any side. He has no personal axe to grind and there is no reason why his testimony should not be believed. It is not necessary that in every case, the prosecution must examine each and every eye witnesses even if they be eye witnesses. However, if the prosecution chooses to examine some eye witnesses and they do not support the prosecution or their evidence is not reliable, then an adverse inference can be drawn that the other eye witnesses would have also not supported the prosecution. In this case, we are of the considered view that the statement of PW-1, Liakat Ali, inspires confidence and can be believed. 9. In this case, we are of the considered view that the statement of PW-1, Liakat Ali, inspires confidence and can be believed. 9. As far as the non-examination of the second I.O. is concerned, he has not done any such material investigation which would render the trial bad due to his non-examination. PW-16 is the witness who conducted the investigation and he has given a detailed statement. Though it may have been better if the second I.O. had also been examined, but his non-examination is not fatal to the prosecution. 10. It has been urged by Sri Datta that the Doctor who conducted the postmortem has not been examined and hence, the postmortem report should not be read in evidence. This argument is totally misleading and has been made without making reference to the order of the trial Court dated 22-03-2012, relevant portion of which reads as follows:-- Ld. Addl. P.P. submits that if defence has no objection the Medical Report of Agartala Govt. Medical College, Agartala dated 01/06/09 of the victim may be exhibited on admission. Ld. Defence counsel also submits that he has no objection and the Medical Report may be exhibited. Accordingly the medical report is marked as exhibit-6 on admission by defence. Once the learned Defence Counsel submitted that he has no objection to the medical report being exhibited in the statement of the learned Addl. P.P., now the defence cannot raise an objection that the postmortem report cannot be read in evidence. 11. Sri Ratan Datta, learned counsel for the appellant, next contends that the statement of Tapan Deb is hearsay. This contention is rejected with the contempt it deserves because the statement of Tapan Deb is not hearsay and he has stated what he had heard the deceased say. 12. The non-production of the weapon of offence is also not at all fatal in the present case since the statements of PW-1, 2, 3 and the medical evidence clearly show that the deceased was given injuries by a sharp edged weapon by the appellant-accused. 13. It is lastly contended by Sri Datta that in the statement of the accused recorded under Section 313the medical evidence has not been put to him. This contention is correct and the learned trial Court would have been better advised to have put these accusations to the accused. 13. It is lastly contended by Sri Datta that in the statement of the accused recorded under Section 313the medical evidence has not been put to him. This contention is correct and the learned trial Court would have been better advised to have put these accusations to the accused. However, no prejudice has been caused to the accused since in question No. 3, the details of the statement have been put with reference to the statement of PW-1. Medical evidence may be necessary to be put where the accused takes up some other defence such as self defence or where he wants to say that the wound is self-inflicted or has been caused due to fall etc. This is not what is the defence taken in the present case because in the present case, the appellant has denied each and every suggestion put to him. No prejudice has been caused to him by not putting him these questions. We are saying so especially when the postmortem report was admitted in evidence on the admission of the learned counsel for the accused and there is virtually no cross-examination to the Doctor. 14. The learned trial Court rightly came to the conclusion that this was not a case of murder since the accused did not have the intention to kill the deceased and he, therefore, convicted him under Section304 part-II of IPC. We see no error in this judgment. 15. The appeal is accordingly dismissed. Time and again, this Court has been observing that the investigation in serious criminal cases is not being done properly. Even in the present case, the Investigating Officer (PW-16) has been grossly negligent. Though the deceased was alive for many days, no effort was made to record his statement. This could have led to the acquittal of the accused. However, PW-1 continued to support the prosecution and we have to convict the accused only on the basis of his evidence. This witness did not even collect any blood sample from the spot or send them for chemical examination. We are, therefore, clearly of the view that PW-16, Madhusudan Chakma, has been totally negligent in the performance of his duties and, therefore, the Director General of Police is directed to ensure that suitable disciplinary proceedings are initiated against him. This witness did not even collect any blood sample from the spot or send them for chemical examination. We are, therefore, clearly of the view that PW-16, Madhusudan Chakma, has been totally negligent in the performance of his duties and, therefore, the Director General of Police is directed to ensure that suitable disciplinary proceedings are initiated against him. The matter be listed before us on 02-06-2014 by which date the Director General of Police shall file an affidavit as to what action has been taken against him.