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2015 DIGILAW 66 (CAL)

Ayat Ali Seikh v. State of West Bengal

2015-01-29

NISHITA MHATRE, SAMAPTI CHATTERJEE

body2015
JUDGMENT SAMAPTI CHATTERJEE, J. 1. The instant appeal is directed against the Judgment and Order of conviction passed in Sessions Trial being No. 4(01) of 2008 arising out of Sessions Case No.99(5) of 2007 passed by the Learned Additional Sessions Judge, FTC-III, Krishnanagar, Nadia on 18th May, 2009 & 19th May, 2009 holding the accused/appellant guilty of offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and also to pay fine of Rs.50,000/- for commission of offence punishable under Section 302 of the Indian Penal Code and in default of payment of fine, he must undergo simple imprisonment for four year. The realised fine is to be paid to the wife of the deceased towards her compensation. 2. The case of the prosecution is as follows:- 3. On 04.11. 2000 one Kalpana Ghosh, aged about 33 years, resident of Chakundi under P.S.-Kaliganj, District-Nadia lodged a complaint to Kaliganj Police Station to the effect that on 03.11.2000 at about 7 p.m. she and her husband on their way back home from her father’s house at Gabhipur got down from bus at Majher Gram and through Ghorai Khetra they were approaching home. After walking across Ghorai Khetra at around 8 p.m., when they were near Hajambari Dahar they noticed four or five persons standing on the road. As they were nearing them, Ayat Ali of Shantipur caught hold of her husband and Anes, son of Nobi of Ghorai Khetra kept on striking her husband with a hansua. Other persons kept on striking her husband. She, shouted and came towards village to call people for help. She further stated in her complaint that her husband had enmity with Ayat Ali and Anes Ali. When she came back with the villagers again at the place of occurrence she found the dead body of her husband lying in adjacent mango orchard. The accused persons fled away after murdering her husband. On the basis of the said complaint police started investigation of Kaliganj P.S. Case No.248 of 2000 under Section 302/34 of the Indian Penal Code. This case was registered as G.R. Case No.1755/2000. After completion of investigation police submitted charge-sheet under Section 302/34 of the Indian Penal Code against the accused persons including the present appellant. Accordingly trial started and after completion of trial out of three accused persons two accused persons namely 1. This case was registered as G.R. Case No.1755/2000. After completion of investigation police submitted charge-sheet under Section 302/34 of the Indian Penal Code against the accused persons including the present appellant. Accordingly trial started and after completion of trial out of three accused persons two accused persons namely 1. Sabuj @ Safijul Mallick and 2. Jamaluddin Sk. were acquitted and the present appellant Ayat Ali Seikh was convicted as aforesaid. 4. P.W.1 is the wife of the deceased. In her deposition she stated that on 3rd November, 2000 at about 7 to 7.30 p.m. she and her husband (Sashthi Ghosh) with one Charan Ghosh were coming from Gabhipur to Chakundi. On the way accused Ayat Ali and Anes Ali forced her husband to get down from the cycle. Then accused Ayat Ali and Anes Ali started to strike on the body of her husband by one ‘Dao’ and the deadbody of her husband was found under a mango orchard. She further stated that the village people came and took the dead body of her husband therefrom. After seeing that she lost her sense. She further stated that the incident was reported to the police station. One Dinanath Mandal scribed the complaint as per her instruction and she put her LTI over the complaint. She further stated that those two persons had access in their house and they were very much known to her and her husband previously. She could not narrate any reason behind the assault of her husband by the accused persons. She further deposed that she and her husband were coming on cycle and Charan Ghosh was also on another cycle. She also stated that she did not write in the complaint coming from Gabhipur they got down from bus near Majher Gram. She further deposed that she did not try to save her husband and sit at that place. Thereafter villagers came there after 10 minutes and body of her husband was taken to the house by them. On that night she did not go to the police station but she had a talk with police. She also failed to explain whether the cycle was seized or not by the police. She further stated that her husband was an accused in a murder of Anlae Sk of village Sitachandanpore, elected member of village Panchayet. On that night she did not go to the police station but she had a talk with police. She also failed to explain whether the cycle was seized or not by the police. She further stated that her husband was an accused in a murder of Anlae Sk of village Sitachandanpore, elected member of village Panchayet. She also disclosed that there was a dispute with people of Santipore regarding theft in a shop room of Azad Sk. She further deposed that she did not know other people of their place but she heard the name of Anu Sk. who was a notorious person. She also deposed that she had no idea if there was any dispute between her husband and Anu Sk and Khedu who are notorious persons. She further deposed that her husband was forcefully brought down from the cycle by the accused persons on that winter evening. On the said road many houses were situated there as the people of that area used to take that road for catching bus. 5. P.W.2 was declared hostile by the prosecution. He was a signatory to the inquest report and deposed that he did not tell before Investigating Officer that at the time of incident in the light of torch he found Ayat Ali of Shantipore, Sabuj Sk., Zamir and Anes Ali, Ghorai Khetra, were running towards Shantipore. He also deposed that he did not tell the Investigating Officer that he found the dead body of Sashthi Ghosh. He also stated that he did not tell the Investigating Officer that wife of Sashthi Ghosh (P.W.1) was shouting when she saw that Ayat and Anes Ali and other accused persons were fleeing away after killing her husband. 6. P.W.3 was also declared hostile by the prosecution. He was the signatory of the seizure list (Exbt.3/1) and label (Exbt.4/1) and stated that he only heard Sashthi Ghosh was murdered. He further stated that after three days he went to Himadri Babu, the Officer-in-charge of the police station, for some Salishi of a dispute in their village. He further deposed that he did not tell the Investigating Officer that Ayat told that he would trace the offending weapon. He further deposed that he did not tell the Investigating Officer that Ayat Ali took out the offending weapon (Dao) 1 feet length with wooden handle. He further deposed that he did not tell the Investigating Officer that Ayat told that he would trace the offending weapon. He further deposed that he did not tell the Investigating Officer that Ayat Ali took out the offending weapon (Dao) 1 feet length with wooden handle. He further deposed that since he had friendship with the Investigating Officer therefore he used to go to the police station frequently. He had no knowledge whether he put signature on any seizure list or not. He only stated that he put his signature on a blank paper on request of the Investigating Officer, his friend. 7. P.W.4 was a seizure list witness and he supported the defence case. He stated that he did not know wherefrom police got the ‘Dao’. Police did not ask him anything. He also did not tell the Investigating Officer that police arrested Ayat Ali from his house or that Ayat Ali admitted his guilt in his presence. He further stated that he did not tell police that accused Ayat would show the offending weapon. He also did not disclose to the Investigating Officer that Ayat Ali brought out 1 feet length ‘Dao’ from the bush near his house. He further stated that at about 12/1 p.m. when he was standing in front of his house near the road police vehicle stopped there and police told him to put his signature on two white papers and he signed accordingly. 8. P.W.5 declared hostile by the prosecution. He is also a signatory of the inquest report. 9. P.W.6 was the scribe of FIR who wrote the FIR as per the instruction of P.W.1. He was also the witness of seizure list (Exbt.2/2) and inquest report (Exbt.1/2) and subsequently declared hostile by the prosecution. P.W.6 stated that Sashthi Ghosh lived in front of his house. He was murdered in the mango garden of Ghorai Khetra at about 8/9 p.m. at night on 13.11.2000. He went to his house and saw people crowded there. During his deposition P.W.6 was asked to read the F.I.R & answer who murdered Sashthi. He stated that it was written that Ayat Ali and Anes Ali. He also stated that he did not go to the scene of occurrence. He went to his house and saw people crowded there. During his deposition P.W.6 was asked to read the F.I.R & answer who murdered Sashthi. He stated that it was written that Ayat Ali and Anes Ali. He also stated that he did not go to the scene of occurrence. He also never disclosed before the police that wife of Sashthi recognised two persons and he never told their names as Ayat Ali and Anes and he was not known to Ayat Ali. He further deposed when at about 8.30/9 a.m. he went to the house of Sashthi then the deadbody of Sashthi was not there. His wife and two daughters were crying. They (wife and daughters) did not know who murdered Sashthi and where. P.W.6 further stated that FIR was written in his varanda, when on the next morning police came to his house then P.W.6 wrote the FIR at his varanda as per words of police. 10. P.W.7, the second Investigating Officer stated in his evidence that Alamat was misplaced. He got CD on 18th September, 2001 and he sent the ‘Dao’ for FSL examination on 22nd March, 2002. After collecting alamat on 22nd March, 2002 he sent ‘Dao’ for FSL but the said ‘Dao’ was not produced in Court. He did not know if GD was made regarding loss/misplacement of ‘Dao’. 11. P.W.8 the third Investigating Officer submitted charge-sheet. He did not get FSL report. He found petition for FSL report but FSL report was not collected. 12. P.W.9 the autopsy surgeon did not explain the details of injuries. He stated in his evidence that heavy sharp cutting weapons might have been used for causing those injuries. He was shown a ‘Dao’ in Court then he stated that this kind of weapon might have caused such injuries. 13. P.W.10 was the Constable who carried the deadbody of Sashthi Ghosh from Chakundi to Saktinagar Hospital. 14. P.W.11 was the police personnel who started Kaliaganj P.S. Case No.248 of 2000 dated 04.11.2000 under Section 302/34 of the Indian Penal Code. 15. P.W.12, the first Investigating Officer prepared the inquest report in presence of witnesses (Exbt.1/3). He prepared sketch map with index (Exbt.11 and 11/1). He examined available witnesses and recorded their statement under Section 161 Cr.P.C. He collected post mortem report on 6th November, 2000 and he arrested accused Ayat Ali on 6th November, 2000. 15. P.W.12, the first Investigating Officer prepared the inquest report in presence of witnesses (Exbt.1/3). He prepared sketch map with index (Exbt.11 and 11/1). He examined available witnesses and recorded their statement under Section 161 Cr.P.C. He collected post mortem report on 6th November, 2000 and he arrested accused Ayat Ali on 6th November, 2000. He recovered one ‘Dao’ measuring 1 feet length from the bush near the house of Ayat Ali at Santipore. He also prepared seizure list (Exbt.3/2). He examined Sukdev Das, Goutam Banerjee, Dinanath Mondal, Charan Ghosh, Jillu Rahaman and Surab Sk. He stated that P.W.2 Sukdeb Das told him that while he was returning from Debogram he heard some shouts and saw people were rushing to Ghorai Khetra. He also told the Investigting Officer that in the flash of torch he found Ayat Ali of Shantipore, Sabuj Sk, Zamil Sk of Ghorai Khetra were running towards Shantipore. He also told that he saw the deadbody of Sashthi Ghosh and wife of Sashthi Ghosh was shouting that Ayat Ali and Anes after killing her husband fled away. The Investigating Officer also examined P.W.3 who was declared hostile by the prosecution. He also examined P.W.4 who told him that police arrested Ayat Ali from his house and asked him and Ayat Ali admitted his guilt in their presence. He told the Investigating Officer that Ayat Ali brought out one ‘Dao’ of 1 feet length from a bush near his house. P.W.12 also examined P.W.5 Goutam Banerjee who told him that while they were coming from Debogram to their house vide Lohasa then they found Ayat Ali. Anes of Shantipore and Sabuj Sk, Patal’s son were running towards Shantipore. P.W.12 stated that he arrested Ayat Ali on 06.11.2000 at 5.05 a.m. and forwarded him to Court on 7th November, 2000. He stated that the offending weapon was kept in Malkhana but he did not collect the Malkhana Register number of that weapon. He did not send seized ‘Dao’ to Court for onward transmission for FSL examination. He further stated that there is no note in seizure list regarding label or identification of ‘Dao’. He further stated that inquest was done in the courtyard of the deceased after starting specific case. There was no mention as to who brought the deadbody from scene of offence to the house of deceased. He further stated that there is no note in seizure list regarding label or identification of ‘Dao’. He further stated that inquest was done in the courtyard of the deceased after starting specific case. There was no mention as to who brought the deadbody from scene of offence to the house of deceased. He stated that Prabir Ghosh identified the place of occurrence but statement of Prabir Ghosh was not recorded. No cycle was seized. The said Investigating Officer was recalled on 9th April, 2009 for further examination where he was shown a ‘Dao’ (Mat. Exbt.I) but label was not attached with the said ‘Dao’. He further stated that there was a note in CD in respect of confessional statement of accused Ayat Ali regarding concealing of the offending weapon but the subsequent Investigating Officer sent the weapon for FSL examination but FSL report was not in CD. He further stated that there was no note in the CD regarding receipt of weapon from FSL. He further stated that there was no mention of wrapping in seizure list or that special identification mark on ‘Dao’. He further stated there was no seal in the closed packet of soil collected from the place of occurrence. 16. Mr. Subir Debnath, learned Counsel appearing for the appellant submitted that the entire prosecution case is full of contradictions and discrepancies. Mr. Debnath further contended that in the prosecution case there is only one eye witness, P.W.1 whose evidence is very much doubtful, as her testimony does not corroborate with the FIR. She stated that she, her husband (deceased) and Charan Ghosh on 3rd November, 2000 from Gabhipur got down from bus at Majher Gram and thereafter they approached to their home through Ghoria Khetra. But in her testimony she stated that she and her husband were coming on a cycle and Charan Ghosh was also in another cycle. Mr. Debnath further contended that it was stated by the witnesses that the incident occurred at 7.30 to 8.30 p.m. In the same village police camp was there. Police came to P.W.1s house but P.W.1 did not disclose anything before the police regarding death of her husband. Mr. Debnath further urged that Charan Ghosh was not examined. No blood-stained wearing apparels were seized. Police came to P.W.1s house but P.W.1 did not disclose anything before the police regarding death of her husband. Mr. Debnath further urged that Charan Ghosh was not examined. No blood-stained wearing apparels were seized. According to the witnesses only Prabir Ghosh identified the scene of offence to police personnel but the said Prabir Ghosh was not examined by the prosecution. Mr. Debnath further contended that the 1st Investigating Officer did not send the ‘Dao’ for FSL examination. P.W.7 the 2nd Investigating Officer stated that alamat was misplaced. He got CD on 18th September, 2001 after collecting alamat. P.W.7 sent the ‘Dao’ for FSL examination on 22nd March, 2002 but he did not see the said ‘Dao’ in the Court. Mr. Debnath further contended that P.W.12 the first Investigating Officer stated that on 6th November, 2000 at about 5.05 a.m. he arrested the accused person but the accused was produced before Court on 7th November, 2000 but the delay was not explained by him. Mr. Debnath further contended that P.W.7 stated that he did not send the seized ‘Dao’ to Court for onward transmission of FSL. He stated in his evidence that he seized the ‘Dao’ but FSL report was not in CD. Not only that P.W.12 stated that there was no note in CD regarding the receipt of weapon from FSL. Mr. Debnath further pointed out that scene of occurrence was near the mango orchard but in the rough sketch map there was no sign of mango orchard. Even there was no mention of mango orchard. Mr. Debnath further urged that inquest report mentioned three injuries on the person of the dead body of deceased Sashthi Ghosh, but Post-Mortem report mentioned five injuries. Autopsy Surgeon in his evidence stated that there were six injuries. Mr. Debnath further contended that P.W.1 in her evidence stated that the FIR was written as per her instruction of the P.W.6 but from the testimony of P.W.6 it is evident that FIR was written as per words of police at his varandah on the next morning. Mr. Debnath further contended that testimony of the sole eye witness did not bear out her claim that she had witnessed the attack on the deceased. Therefore, in the version of Mr. Debnath the entire case of the prosecution is full of contradictions, loosends and untold sotries. Mr. Debnath further contended that testimony of the sole eye witness did not bear out her claim that she had witnessed the attack on the deceased. Therefore, in the version of Mr. Debnath the entire case of the prosecution is full of contradictions, loosends and untold sotries. The entire testimonies creates suspicion in the mind of Court regarding commission of offence by the appellant. Testimonies of the witnesses were not corroborating with the FIR as well as the testimony of Autopsy Surgeon and P.W.12, the first Investigating Officer. Mr. Debnath further urged that an accused person is presumed to be innocent until he is found guilty but the burden of proof is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts against the accused person. But in the present case there is huge lacunae on the part of the prosecution to establish its case beyond all reasonable doubts against the appellant. In support of his contention he relied on a Supreme Court decision reported in Soham & Another vs. State of Haryana and Another with Rajinder and Others vs. State of Haryana, (2001) 3 SCC 620 . Mr. Debanth further urged that in her deposition P.W.1 stated something which did not corroborate with the FIR. But subsequently just to cover up the loopholes the prosecution tried to improve their case in Court which should not be/cannot be accepted, entertained or encouraged. In support of his contention Mr. Debanth relied on a Supreme Court decision reported in Anil Prakash Shukla vs. Arvind Shukla with State of U.P. vs. Arvind Kumar, (2007) 9 SCC 513 . Mr. Debnath also contended that when the testimony of sole alleged eye witness creates a shade of doubt in the mind of the Court then it is not safe to rely upon the sole testimony of eye witness, (the P.W.1) to impose conviction on the appellant. In support of his contention he relied on a Supreme Court decision reported in Hasan Murtza vs. State of Haryana, (2002) 3 SCC 1 . Mr. Debnath further vehemently urged that it is evident from the testimony of P.W.1 that the deceased was a history-sheeter and he was an accused in some other murder case. Therefore, he might have been murdered by his enemies. In support of his contention Mr. Mr. Debnath further vehemently urged that it is evident from the testimony of P.W.1 that the deceased was a history-sheeter and he was an accused in some other murder case. Therefore, he might have been murdered by his enemies. In support of his contention Mr. Debnath relied on a Supreme Court decision reported in Badam Singh vs. State of Madhya Pradesh, AIR 2004 SC 26 . Mr. Debnath also vehemently urged that the incident occurred on 3rd November 2000 but FIR was lodged on 4th November, 2000 and it was sent to the Court on 7th November, 2000. Delay was not explained. In support of his contention Mr. Debnath relied on a Supreme Court decision reported in Bijoy Singh & Another vs. State of Bihar, (2002) 9 SCC 147 . 17. Mr. Pawan Kumar Gupta, learned Advocate appearing for the State contended that the prosecution case depends on the evidence of P.W.1, the wife of the deceased. Mr. Gupta further contended that Charan Ghosh was a witness but he was not called by the prosecution as he was dead. Mr. Gupta further contended that evidence of P.W.1 corroborated with the FIR and also with the statement of Autopsy Surgeon and the first Investigating Officer. Mr. Gupta further vehemently urged that the accused persons were known to the P.W.1. Therefore, it was not impossible for the P.W.1 to identify the accused persons at night. It was also the version of Mr. Gupta that considering all the facts the Hon’ble Court should affirm the impugned judgment and order passed by the learned Court below. 18. On the facts and evidence as above there can be no dispute that the deceased Sashthi Ghosh had died a homicidal death. Now the question is whether the prosecution has been able to connect the present appellants with the alleged crime? 19. Let us now examine/assess the evidence on record in the perspective of the guidelines of the Supreme Court of India. 20. On a close and critical reading of the evidence both oral as well as documentary with meticulous care we find that the investigating agency handled the prosecution’s case very inefficiently. We find that P.W.1 stated in her written complaint that they got down from bus at Majhergram and thereafter they were approaching there home. 20. On a close and critical reading of the evidence both oral as well as documentary with meticulous care we find that the investigating agency handled the prosecution’s case very inefficiently. We find that P.W.1 stated in her written complaint that they got down from bus at Majhergram and thereafter they were approaching there home. But in the evidence she stated that they got down from the bus and riding on a bi-cycle they were approaching their home. We also find that in the same village police camp was there but P.W.1 did not inform the police regarding the incident on the same day. We also find that P.W.1 stated Dinanath Mandal scribed the written complaint as per her instruction. But P.W.6 in his evidence stated that in the next morning police came there and as per the police version he wrote the complaint at his varandah. We also find that P.W.6 also stated that on 03.11.2000 at about 8.30/9 p.m. being the next door neighbour when he went to the house of P.W.1 he saw that P.W.1 and her daughters were crying and he did not see dead body of Sashthi Ghosh over there. We also find that P.W.1 stated that she and her husband and Charan Ghosh were coming from Gabhipur towards their house on 03.11.2000 but the said Charan Ghosh was not examined. Though Mr. Gupta submitted that since Charan Ghosh died therefore he could not be examined by the prosecution but no death certificate of Charan Ghosh was submitted before the Court. We also find that it was the case of prosecution that Prabir Ghosh identified the scene of occurrence before the police but unfortunately the said Prabir Ghosh was not examined. We also cannot ignore the testimony of P.W.7 the second Investigating Officer who stated that alamat was misplaced and ‘Dao’ was not produced. But P.W.12 the first Investigating Officer stated that on 20th May, 2001 he took charge of the investigation but he did not send the seized ‘Dao’ for onward transmission for FSL examination and there was no note in seizure list regarding label or identification mark on the alleged ‘Dao’. P.W.12 further stated that the offending weapon was sent for FSL examination but FSL report was not in CD and there was no note in CD regarding the receipt of weapon from FSL. P.W.12 further stated that the offending weapon was sent for FSL examination but FSL report was not in CD and there was no note in CD regarding the receipt of weapon from FSL. Further when the alleged ‘Dao’ was shown to the P.W.12 he stated that it was not that ‘Dao’ which was recovered by him. We also find that incident occurred on 03.11.2000 at about 7.30 to 8.30 p.m. but FIR was lodged on 04.11.2000 at about 8.30 a.m. The accused was arrested on 6.11.2000 at about 5.05 a.m. but he was produced before Court on 07.11.2000 and no explanation was given regarding delay of production of the accused person before Court and also regarding delay of sending FIR to the Court. We also find that no cycle was recovered by the Investigating Officer. No blood-stained wearing apparel was seized. We also find from the testimony of P.W.4 (who was not declared hostile by the prosecution) that police asked him to put his signature on blank paper when he was standing in front of his house. He also stated that he did not know wherefrom police got the alleged ‘Dao’ and police arrested accused Ayat Ali from his house. We also find from the rough sketch map of the alleged place of occurrence that there was no indication regarding mango orchard though it was mentioned in the written complaint of the P.W.1 that the deadbody was found adjacent to mango orchard. We also cannot overlook that inquest report mentioned three injuries but the post-mortem report indicated there were five injuries in the person of the deceased. Surprisingly, the evidence of Autopsy Surgeon (P.W.9) stated that there were six injuries on the dead body. P.W.9 also opined that heavy sharp cutting weapons might have been used for causing those injuries. When the alleged weapon was shown to him the Doctor stated that this kind of weapon might have caused such injuries. We also cannot ignore that P.W.1 stated that appellant Ayat Ali and Anes had access in their house and they were very much known to them. She also failed to disclose the reason of assault of his husband by the appellant which clearly indicates there was no motive behind such offence by the appellant. 21. We also cannot ignore that P.W.1 stated that appellant Ayat Ali and Anes had access in their house and they were very much known to them. She also failed to disclose the reason of assault of his husband by the appellant which clearly indicates there was no motive behind such offence by the appellant. 21. In the light of what is discussed above and after deeper consideration, detailed examination of evidence and probabilities of the case and in the light of the arguments advanced by the learned Counsel of both the side we have no hesitation in holding that there were various lacunae, inconsistencies, contradictions, absurdities, loosends and untold stories in the prosecution case. So, the learned Court below manifestly erred in convicting and sentencing the accused. Therefore, it is our duty to interfere with the impugned judgment and to do substantial justice. 22. Therefore, the appellant gets the benefit of doubt. The learned Trial court had therefore wrongly convicted the appellant of the alleged offence. Hence, we set aside the Judgment and Order dated 18.05.2009 and 19.05.2009 passed by the Additional District Judge, FTC-III, Krishnanagar, Nadia. 23. The appellant is found not guilty of the offence punishable under Section 302 of the Indian Penal Code framed against him. 24. The appellant is given the benefit of doubt and acquitted. He be released from the custody if his detention is not required in any other case. 25. The appeal is accordingly allowed. 26. Urgent photostat certified copy of this Judgment, if applied for, be supplied to the learned Advocate for the parties upon compliance of all formalities.