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2015 DIGILAW 490 (CAL)

Saharia Sk. v. State of West Bengal

2015-06-16

INDRAJIT CHATTERJEE, NADIRA PATHERYA

body2015
JUDGMENT: Patherya J. : This appeal has been filed against the order and judgment dated 20th December 2004 and 21st December 2004 passed by the Additional District and Sessions Judge, Fast Track, 2nd Court, Rampurhat, in Sessions Trial No.82/2002 arising out of Sessions Case No.35 of 1999 whereby and whereunder the appellants herein who are five in number have been convicted under Sections 148, 302/149 and 324/149 IPC. Pursuant to an order passed in 2009 the said appellants are on bail. The prosecution’s case is as follows :- On 28th October, 1988 at about 7.00 a.m. the victim went to his maternal uncle’s house for business and at about 7.30 a.m. the said victim along with Enjil (P.W.2) was returning from the maternal uncle’s house when near the tailoring shop of Balaiuddin the accused appellants along with some other persons armed with bomb, sword, pipegun and knife attacked them. A shot from the pipegun was aimed at the victim but it missed its target. The victim took shelter in the grocery shop of Mojeswar wherefrom he was dragged out. Enjil (P.W.2) tried to resist Saharia the accused appellant no.1, at this time Bakkar the accused appellant no.4 assaulted him on his back with a knife and injured Enjil (P.W.2) fell down. The victim was thereafter dragged out of the shop and assaulted. Janbar threw a bomb at the victim, as a result whereof, the victim lost a finger of his right hand and some teeth. The said incident was seen by the de facto complainant, Angu Sk, at whom, too bombs were hurled. Therefore, he could not save the victim. After hurling bombs the accused appellants persons fled and the defacto complainant approached the victim and found him dead. Thereafter a complaint was filed with the Mayureswar Police Station and Mayureswar P.S. Case No.17 dated 28th October, 1988 was started. Investigation was undertaken and charge Sheet submitted against seven accused persons for commission of offence punishable under Sections 148/149/326/327/302 IPC. Makrob Ali and Kamruddin Sk. died and the case against them was filed. On framing of charge the said was read out and explained to the accused appellants who pleaded not guilty and sought to be tried. In all 13 witnesses were examined and documents exhibited. Makrob Ali and Kamruddin Sk. died and the case against them was filed. On framing of charge the said was read out and explained to the accused appellants who pleaded not guilty and sought to be tried. In all 13 witnesses were examined and documents exhibited. The accused appellants were also examined under Section 313, Cr.P.C and on appreciation of oral and documentary evidence by order/judgment dated 20th December 2004 and 21st December 2004, the appellant/accused persons were convicted under Sections 148, 302/149 and 324/149 IPC. From the said order of conviction, this appeal has been filed and order sought. Counsel for the accused appellants submits that there has been delay in sending the FIR by the I.O. to the Court of the S.D.J.M. It was sent only on 31st October, 1988 whereas the date of incident was 28th October, 1988 and the FIR filed on 28th October, 1988 at 8.02 hours. The inquest report has not been included in the paper book. The charge initially framed was under Section 307 but later amended by order dated 2nd December, 2004 to Section 302 IPC. P.W.1 is the defacto complainant who is an eyewitness to the incident. The FIR is to be sent to the Court of the S.D.J.M within 24 hours, i.e., by 29th October, 1988 when it should have been dispatched but, it was sent three days later and there is no explanation for the delay. In the written complaint there is mention of Kofitan Sk. and Misar Ali Sk. both of whom have not been examined. The charge was framed on 4th February, 2003 and was amended on 2nd December, 2004 and by virtue of such amendment, the name Enjil Sk. was included. Section 302/149 and 324/149 forms the basis of the order of conviction. Md. Rasul Baksh though a seizure list witness was not examined. Ziar Ali has also not been examined. P.W.1 is not an eyewitness as he was not present at the P.O. The act of each of the accused has also not been mentioned. P.W.2 Enjil is the injured eyewitness whose Gamcha & Ganjee though seized was not identified or exhibited. No suggestion was also given to P.W.1 or P.W.2 with regard to death of the victim. P.W.3 is the son of the victim who is another eyewitness. P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 are hostile witness, P.W.9 and P.W.12 are formal witness. P.W.2 Enjil is the injured eyewitness whose Gamcha & Ganjee though seized was not identified or exhibited. No suggestion was also given to P.W.1 or P.W.2 with regard to death of the victim. P.W.3 is the son of the victim who is another eyewitness. P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 are hostile witness, P.W.9 and P.W.12 are formal witness. P.W.10 is the Postmortem Doctor, P.W.11 is the doctor who examined Enjil. P.W.13 is the I.O., who is also the scribe and submitted the charge sheet. The evidence of P.W.3 cannot be relied on in view of the evidence of P.W.13, the I.O. The offending weapons were not seized and the postmortem doctor (P.W.10) also did not depose which weapon caused the injury. The investigation is defective and as held in 2013 (3) All India Criminal Law Reporters 75, serious lapse in investigation will warrant acquittal of the accused. There has been delay in sending the FIR to the Magistrate. Inquest was also not sent to the Medical Officer. There is no evidence also of the existence of the inquest report. P.W.1, P.W.2 & P.W.3 in their evidence have stated that the victim was assaulted by weapons and Janbar hurled a bomb by which the finger and tooth of the victim was blown. A bomb was also thrown to P.W.1 which made him shift from the P.O. to a nearby place. The postmortem doctor (P.W.10) found no injury by firearm or bomb or its remnants or mark of violence on the body of the victim. No used cartridge was found although P.W.10 visited the P.O. at 9.05 hours. There is no evidence by P.W.1, P.W.2 & P.W.3 that the accused appellants used any hard or blunt substance. P.W.2 made no statement at the time of incident and even after nine months said nothing. There has been a long delay in recording of the statement. There is no injury report in the bed head ticket (Exhibit-6). The presence of Enjil (P.W.2) is doubtful in view of the evidence of P.W.13, the I.O. so also the doctor and Exhibit-6. P.W.3, son of Enjil gave a descriptive narration of the incident but made no statement to the I.O., P.W.13. There is no injury report in the bed head ticket (Exhibit-6). The presence of Enjil (P.W.2) is doubtful in view of the evidence of P.W.13, the I.O. so also the doctor and Exhibit-6. P.W.3, son of Enjil gave a descriptive narration of the incident but made no statement to the I.O., P.W.13. All the witnesses who deposed, namely, P.W.1, P.W.2 & P.W.3 are relatives and interested witnesses and none of them have deposed that they saw each other at the P.O. There is discrepancy in the seizure list with regard to seizure of the wearing apparels of the victim as it is mentioned therein that it was taken from the P.O. but the postmortem doctor did not say that he found the victim without any apparel. The FSL report has also not been marked as Exhibit. The postmortem was done on 29th October, 1988 at 11.20 hours whereas the apparels were seized on 28th October, 1988 at 10.35 hours at the P.O. P.W.10 (postmortem doctor) has not opined that injury was caused by a particular weapon. For all the said reasons, therefore, the order of conviction be set aside. Counsel for the State submits that delay in despatch of FIR to the Court of the S.D.J.M. is not fatal as held in AIR 2002 SC 3648 . In fact, 28th October, 1988 was a Friday, 29th October, 1988 was a Saturday and 30th October, 1988 was a Sunday, therefore, at the earliest opportune time, i.e., 31st October, 1988 the FIR was dispatched. Defective investigation will not warrant acquittal of the accused as held in AIR 2010 SC 3718. The case has been proved beyond reasonable doubt as has been done in the instant case and in view of AIR 2003 SC 3617 , the conviction be upheld. Related witness need not always mean interested witness as held in AIR 2005 SC 249 . Just because a witness is related, does not warrant dismissal of his evidence. For all the said reasons, therefore, the order of conviction be affirmed and upheld. In reply, Counsel for the accused appellants submits that there no investigation made. Therefore, question of a perfunctory investigation also does not arise and in view of no investigation, the order of conviction be reversed. There is no eyewitness as none of them saw each other. For all the said reasons, therefore, the order of conviction be affirmed and upheld. In reply, Counsel for the accused appellants submits that there no investigation made. Therefore, question of a perfunctory investigation also does not arise and in view of no investigation, the order of conviction be reversed. There is no eyewitness as none of them saw each other. Therefore, the prosecution has not been able to prove its case and orders be passed as sought. Having considered the submissions of the parties P.W.1 is the FIR maker and an eyewitness. P.W.2 is the injured witness. P.W.10 is the postmortem doctor and P.W.11 is the doctor who attended on the injured witness (P.W.2). This case is based on eyewitness evidence who saw the victim being killed, by the accused appellants and the evidence of the eyewitness and especially one who is injured in his attempt to save the victim cannot be ignored. The point of delay canvassed is baseless as 28th October 1988 was a Friday, 29th October 1988 (Saturday) and 30th October 1988 (Sunday). Therefore, the FIR was sent on the 1st working day available thereafter. Non-inclusion of the Inquest Report in the paper book can also be no reason to set-aside the order of conviction. In fact, the Inquest Report (Exhibit-6) is in a totally torn condition and it is only for this reason it was not included in the Paper Book. The evidence and the Report of the Postmortem Doctor (P.W.10) does not suffer from any ambiguity or disparity. Injury Nos. 1, 2 and 7 were vital injuries which caused shock and hemorrhage as per the evidence and report of the Postmortem doctor resulting in the death of the victim. P.W.10 has categorically in cross-examination stated that Injury No.2 was caused by a penetrating weapon and Injury No.7 by a hard blunt substance. P.W.2 (Enjil) is the injured witness who was admitted to the Suri Sadar Hospital on 28th October, 1988 and was discharged on 7th November, 1988. This will appear from the bed head ticket (Exhibit-6). He was treated by P.W.11 who has in his evidence categorically stated that P.W.2, the injured witness suffered stab injury. P.W.2 (injured witness) and P.W.1 (FIR maker) are eyewitness to the incident and each has corroborated the evidence of the other to the extent of assault on the victim by the accused appellants with knife and sword. He was treated by P.W.11 who has in his evidence categorically stated that P.W.2, the injured witness suffered stab injury. P.W.2 (injured witness) and P.W.1 (FIR maker) are eyewitness to the incident and each has corroborated the evidence of the other to the extent of assault on the victim by the accused appellants with knife and sword. The defence could not demolish this case of the prosecution during cross-examination of P.W.2 or P.W.1 either and there exists no reason to disbelief the evidence of P.W.1 or P.W.2. The non-seizure of the offending weapon will not nullify the evidence of an injured witness (P.W.2) and an eyewitness (P.W.1). At best it can tantamount to defective investigation which cannot be a reason to set-aside the order of conviction as held in AIR (2010) SC 3718. Related witness does not mean interested witness as held in AIR (2005) 249 especially when the injured witness (P.W.2) has deposed regarding the assault on the victim in his presence. The motive for assaulting the victim emerges from the evidence of P.W.1, the FIR maker. When he says that the victim was an important witness in a sessions case pending in Suri Court. This could not be dislodged in cross-examination of P.W.1 by the defence. P.W.3’s evidence cannot be brushed away either. He has specifically stated that the accused appellant no.4 assaulted P.W.2 with knife on back which is corroborated by P.W.2 (injured witness) himself. For all the aforesaid reasons the order of conviction calls for no interference and the appeal is accordingly dismissed. The bail granted to the appellants stands cancelled and the appellant is directed to surrender before the Court of the Chief Judicial Magistrate, Birbhum at Suri within a week from the date of receipt of the operative portion of the judgment. Let the operative portion of the judgment be served on the accused appellants through the O.C. Rampurhat, Birbhum in G.R. Case No.615/1988. If the appellants do not comply with the direction of the Court then the Chief Judicial Magistrate, Birbhum will proceed against the sureties and take other legal action like issuance of warrants of arrest against the accused appellants. The seized articles kept as alamat be destroyed after the period of appeal. Let a certified copy of this order, if applied for, be given to the parties on priority basis.