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2015 DIGILAW 930 (CAL)

Joleman Sk. v. State of West Bengal

2015-11-30

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2015
JUDGMENT : Sankar Acharyya, J. This appeal has been preferred by three appellants Joleman Sk (A-1), Nekail Sheikh @ Nakail (A-2) and Kamal Sheikh (A-3) challenging the judgment and orders of conviction and sentence dated 5.9.2008 and 9.9.2008 respectively passed by learned Additional Sessions Judge, 2nd Fast Track Court Jangipur in Sessions Case No. 16 of 2005 corresponding to Sessions Trial NO. 2 (9) of 2005 under Sections 364 and 302 read with Section 34 of the Indian Penal Code (in short I.P.C.). 2. The appellants have contended that the evidence on record do not justify the conviction and sentence and that the impugned judgment and orders of conviction and sentence are bad in law causing prejudice to the appellants. Appellants have further contended that the appellants were not properly examined under Section 313 of the Code of Criminal Procedure (in short Cr.P.C.) and that the witnesses examined by prosecution are either relatives or known persons of the complainant which fact has not been considered by the Trial Court. Appellants have prayed for setting aside the impugned judgment and orders. 3. Initially the case was started against six accused persons including the three appellants. Two accused persons Ayub Sk and Sajahan Sk absconded and their case was splitted up and kept pending. The case proceeded against four accused persons including the three appellants and one Sabirul Sk., who had faced the trial in the Trial Court. In the impugned judgment accused Sabirul Sk. has been acquitted of the charges under Sections 364/302/34 of the Indian Penal Code and the appellants have been convicted and sentenced of the said charges. The case of the State prosecution adjudicated in the Trial Court in substance is that on 7.2.2004 at about 5:00 p.m. the victim Sabdul Sk. Went to tea stall of Nurman Sk. for taking tea in their village Adwaitanagar when the six accused persons being armed with sharp cutting weapons sword, bhojali (dagger) and hansua and also with bombs attacked him. Sabdul rushed to a nearby tea stall of one Salim Sk, for taking shelter but accused persons chased and caught hold of him there. They dragged him from that tea stall and started assaulting him with sharp cutting weapons and took him away. The accused persons killed Sabdul and left his dead body in the field of green mustard plants of one Joinal Sk. 4. They dragged him from that tea stall and started assaulting him with sharp cutting weapons and took him away. The accused persons killed Sabdul and left his dead body in the field of green mustard plants of one Joinal Sk. 4. Defence of the four contesting accused persons was denial of the occurrence and involvement of accused persons in the alleged crime with a further defence of alibi of accused appellants Juleman (A-1) and Nakail (A-2) with a plea that at the relevant time of alleged occurrence they attended a meeting at village Chanchki in Jharkhand in connection with divorce of Shafura Khatun daughter of Nuruddin Sheikh (DW 1) of village Chanchki and her husband Naborul Sheikh of village Adwaitanagar. 5. During trial prosecution examined nineteen witnesses as PWs and accused persons examined three witnesses as DWs. 6. Nineteen PWs are Hanif Sk. (PW 1), Belal Hossain (PW 2), Tajkera Khatron (PW 3), Aklema Bewa (PW 4), Ambia Bewa (PW 5), Sakir Sk. (PW 6), Soleman Sk. (PW 7), Md. Jiaul Haque (PW 8), Manirul Sk. (PW 9), Salim Sk. PW 10), Asgar Ali (PW 11), Anjarul Sk. (PW 12), Abdul Khaleque (PW 13), Md. Badruddoja (PW 14), Serajul Sk. (PW 15), Abdul Gaffar (PW 16), Dr. Subhendu Kumar Roy (PW 17), S.I. Surajit Sadhukhan (PW 18) and S.I. Prasanta Mukherjee (PW 19). 7. Three witnesses of contesting accused persons are Nuruddin Sk. (DW 1), Noor Ali (DW 2), Jamilur Rahman (DW 3). Accused persons also adduced one talaqnama as exhibit-A. 8. Prosecution adduced documentary and material evidence also and marked exhibits. Exhibited documents of prosecution are carbon copy of inquest report (exhibit- 1), a seizure list dated 8.2.2004 relating to seizure of blood stained earth etc. collected from the place of recovery of dead body of victim (exhibit- 2), another seizure list dated 8.2.2004 relating to seizure of blood stained wearing apparels and blood of victim (Exhibit- 3/A), another seizure list dated 25.8.2004 relating to seizure of 60 tiles from the house of accused Nekail Sk. collected from the place of recovery of dead body of victim (exhibit- 2), another seizure list dated 8.2.2004 relating to seizure of blood stained wearing apparels and blood of victim (Exhibit- 3/A), another seizure list dated 25.8.2004 relating to seizure of 60 tiles from the house of accused Nekail Sk. on the strength of warrant of proclamation and attachment (exhibit- 4/A), carbon copy of another seizure list dated 7.11.2004 relating to seizure of two swords, one dagger and two hansua from a bush behind Islampur Primary School (exhibit- 5/B), written compliant dated 8.2.2004 lodged by PW 1 at Samshergunj Police Station through PW 19 (exhibit- 6), formal FIR (exhibit- 7), carbon copy of post mortem report (exhibit- 8), relevant portion of statement of accused Kamal Sk. recorded by PW 18 leading to discovery of incriminating weapons (exhibit- 9), rough sketch map of the place of occurrence (exhibit- 10) and index of exhibit- 10 (exhibit- 10 A). Material exhibits of prosecution are two swords collectively (Mat. exhibit- 1), one dagger (Bhojali) (Mat, Exhibit- 2), one 'hansua' (Mat. exhibit- 3) and one old white colour blood stained full sleeve shirt and a half sleeve vest and a green check lungi collectively (Mat. exhibit- 4). 9. Some unchallenged facts of the case are homicidal death of Sabdul Sk. on 7.2.2004, before about two years of Saddul's death his son Zakir was also murdered for which Sabdul complained at Police Station and during trial in that case Sabdul deposed in Court on the day before the date of his death and subsequently in that case accused Kalu Sk. Torab Ali and Abu Taleb have been acquitted of their charge. A-1 Joleman is cousin of said Kalu Sk. and Abu Taleb and said Torab Ali are nephew of A- 1 Joleman. 10. Determining question is whether the Trial Court has rightly found guilty the three appellants as authors of abduction and murder of Sabdul Sk. 11. At the time of hearing of this appeal Mr. A-1 Joleman is cousin of said Kalu Sk. and Abu Taleb and said Torab Ali are nephew of A- 1 Joleman. 10. Determining question is whether the Trial Court has rightly found guilty the three appellants as authors of abduction and murder of Sabdul Sk. 11. At the time of hearing of this appeal Mr. Sandipan Ganguly learned Advocate for the appellants has advanced arguments that according to prosecution case the victim was abducted in the day time from a village market area having so many shops and establishments and he was assaulted with sharp cutting weapons on the way of taking him away but not even a single independent eyewitness has been examined by prosecution against the appellants and since the examined alleged eye-witnesses are interested and closely related to the victim they should not be relied upon as proof of prosecution case. 12. He has pointed out that there are discrepancies in the depositions of material witnesses of the prosecution. He has claimed that alibi of A- 1 and A- 2 has been successfully proved by DW 1, DW 2 and DW 3 and also corroborated by PW 9 and PW 10. In support of his arguments Mr. Ganguly has relied upon the decisions of Supreme Court in the cases of Kapildeo Mandal and Ors. v. State of Bihar reported in 2008 (1) E Cr N 28, Jagga Singh and Anr. v. State of Punjab reported in (2011) 1 Supreme Court Cases (Cri) 845, Jumni and Ors. v. State of Haryana reported in (2014) 3 Supreme Court Cases (Cri) 380, Iswar Singh v. The State of Uttar Pradesh and Ilam Singh and Ors v. The State of Uttar Pradesh reported in AIR 1976 Supreme Court 2423. 13. On the other hand, Mr. Subir Banerjee, learned Advocate for the State respondent has argued that prosecution has proved its case examining six PWs ( PW 1 to PW 6) as eye-witnesses of the occurrence. Their evidence against the appellants is corroborative each other. According to him said witnesses have been cross-examined at length but they stood with credibility. He has submitted that minor discrepancies in their evidence is to be ignored. Their evidence against the appellants is corroborative each other. According to him said witnesses have been cross-examined at length but they stood with credibility. He has submitted that minor discrepancies in their evidence is to be ignored. He has advanced his arguments that said witnesses have also proved the mens rea of the appellants submitting that the victim of this case deposed in the case of murder of his son Zakir on the preceding date of his death without paying heed to the threat of the appellants to him with dire consequence in case of his giving evidence against accused persons in that case. He has replied to the arguments of appellants' side submitting that the evidence of DWs is not corroborative each other and they have not stated about presence of PW 9 and PW 15 in the alleged meeting of divorce at village Chanchki at Pakur of Jharkhand although during cross-examination PW 9 and PW 15 made extraneous statement to support the defence version of alibi. He has also drawn our attention to the distance between Chanchki and Adwaitanagar as 7 km. only claiming the alibi as false outright. He has also claimed that ocular evidence and medical evidence adduced by prosecution has sufficiently proved the prosecution case. His further arguments is that the evidence of relative witnesses cannot be discarded only because they are relatives of victim submitting that the relatives and well wishers of victim will not screen the real culprits and will not implicate innocent persons in a crime like murder. He has cited the decisions in the cases of Gurucharan Singh and Anr. v. State of Punjab reported in AIR 1956 SC 460 , Guli Chand and Ors v. State of Rajasthan reported in (1974) 3 Supreme Court Cases 698, Maqbool Alias Zubir alias Shahnwaz and Anr. v. State of Andhra Pradesh reported in AIR 2011 SC 184 , Gangabhavani v. Rajapati Venkat Reddy and Ors. reported in AIR 2013 Supreme Court Cases 3681 and Rokad Singh and Ors. v. State of Madhya Pradesh reported in 1994 Cri.L.J. 494. 14. In the impugned judgment learned Judge in the Trial Court has discussed the evidence adduced by both the parties. In this appeal we like to re-appreciate the evidence on record. 15. PW 1 is son of the victim. He has been examined as an eyewitness of the occurrence. v. State of Madhya Pradesh reported in 1994 Cri.L.J. 494. 14. In the impugned judgment learned Judge in the Trial Court has discussed the evidence adduced by both the parties. In this appeal we like to re-appreciate the evidence on record. 15. PW 1 is son of the victim. He has been examined as an eyewitness of the occurrence. According to FIR lodged by PW 1 all the six accused persons of the case attacked his father with sharp cutting weapons in the tea stall of Nurman Sk. Out of fear the victim took shelter in another tea stall of Salim Sk. wherefrom he was dragged and taken away. PW 1 and others tried for rescue of the victim but they were threatened by accused persons to kill them and out of fear they could not go to the accused persons. He has described the weapons of the accused persons. It appears from the description of said weapons that except acquitted accused Sabirul Sk. who was carrying bombs the other five accused persons were armed with sharp cutting and pointed weapons like sword, dagger (Bhojali) and 'hansua'. PW 1 also witnessed that accused persons were chopping the victim and took the victim to land of one Joynal Sk. and killed him there. Said matters were informed to police. Police came and with the help of police dead body of the victim was recovered. 16. In his deposition PW 1 has added that the appellants of this appeal threatened the victim before the date of occurrence that if the victim would disclose the truth about murder of Zakir Hossain he would be murdered by the appellants but ignoring such threat the victim deposed in the case of murder of Zakir Hossain on the day before the date of occurrence. According to PW 1, on the date of occurrence the victim along with PW 1 and PW 2 went to the tea stall of Nurman Sk. (not examined as PW) for taking tea. At that time the appellants and accused Sajahan and Ayub took the victim from that tea stall and assaulted the victim with Hansua, dagger and sword and they left the dead body of victim in the field and went away blasting bombs. Someone informed the police over phone. Police force came. PWs and Police searched for the dead body and recovered the dead body from the field. Someone informed the police over phone. Police force came. PWs and Police searched for the dead body and recovered the dead body from the field. Police examined the dead body and found cut marks over the dead body. Thereafter PW 1 lodged written compliant before police at village Adwaitanagar. During cross-examination PW 1 has stated that they went to the field but could not search his father (victim) due to fear and they returned home. He came to know about death of his father when he saw the dead body at the field. He along with his brother PW 2 and elder sister PW 3 accompanied police and Aklima (PW 4) and Sakir (PW 6) also accompanied police at the time of search. PW 1 was suggested that the victim alone went to the tea stall of Nureman on the date of incident but PW 1 denied it. In the next question PW 1 was suggested that the victim did not go to the tea stall of Nureman on the date of incident. It was also denied by PW 1. He was further suggested that six persons took his father forcibly from the tea stall of Nureman and they murdered the father of PW 1 which was admitted by PW 1. After such admission the PW 1 told the number of miscreants as five instead of six. It is significant to note that although acquitted accused Sabirul Sk. Was made accused in FIR (exhibit- 6) but PW 1 has stated nothing against Sabirul Sk. in his deposition during cross-examination PW 1 has stated that he did not search his father at night before arrival of police out of fear but PW 3 went out for searching her father when absconding accused Sajahan caught hold of her hair and threatened her with dire consequence. PW 3 could not go to the place where dead body of the victim was found. Excluding minor discrepancy the deposition of PW 1 read with exhibit- 6 speaks about involvement of the appellants in committing the incident of murder of Sabdul Sk. Who was the father of PW 1. Significantly, we like to note that he was not suggested alleging alibi of A- 1 and A- 2 during his lengthy cross-examination. It is needless to say that PW 1 is victim's relative but a natural witness of prosecution. 17. Who was the father of PW 1. Significantly, we like to note that he was not suggested alleging alibi of A- 1 and A- 2 during his lengthy cross-examination. It is needless to say that PW 1 is victim's relative but a natural witness of prosecution. 17. PW 2 is another son of the victim Sabdul Sk. He is another eyewitness of occurrence. Corroborating PW 1 he has stated that the victim along with PW 1 and PW 2 went to the tea stall of Nureman Sk. This PW 2 has also not alleged any accusation against accused Sabirul Sk. He has also stated that the three appellants and two absconding accused persons caught hold of the victim and took him towards village assaulting him by 'hansua', sword, 'cheni' and dagger (bhojali). He stated that said five accused persons took the victim towards field and Pw 2 and others returned home. According to PW 2, the accused persons exploded bombs for which PW 2 and others could not go with the victim. According to PW 2, police arrived at their village in the night. PW 2 and others accompanied police to find out the victim and recovered the dead body of the victim from the field. PW 2 proved his signatures (carbon impression) on inquest report and two seizure lists as a witness of holding inquest by police over the dead body of victim and seizure of blood stained earth and some mustard plaints from the place of recovery of the dead body and also seizure of wearing apparels of the victim after post mortem examination of the dead body. At the time of his cross-examination he was suggested putting leading question that he along with PW 1 witnessed the incident closely and PW 3 witnessed the incident as she was pulling (fetching) water from the well and PW 2 answered affirmative to those leading questions. Nothing reveals from the deposition of PW 2 to disprove the prosecution case. He has substantially corroborated the PW 1. This PW 2 is also a related witness of prosecution. 18. PW 3 is daughter of the victim. She is also eye-witness of the incidents. She has given a vivid description of her father's going to tea stall of Nurman and attacking him by five accused persons (excluding Sabirul Sk. He has substantially corroborated the PW 1. This PW 2 is also a related witness of prosecution. 18. PW 3 is daughter of the victim. She is also eye-witness of the incidents. She has given a vivid description of her father's going to tea stall of Nurman and attacking him by five accused persons (excluding Sabirul Sk. out of six accused persons) and the victim's taking shelter in tea stall of Salim Sk. wherefrom said accused persons took him away assaulting the victim by sword, dagger and 'cheni'. PW 3 has stated that at the time of incident PW 1 was at the medicine shop of Afzal and PW 2 was at the shop of Abbas and that PW 1 and PW 2 intended to save their father and went for about 10 cubits but villagers forbade them to go as the accused persons might have killed them. Before examination of PW 3 the appellants suggested to PW 2 that at the relevant time of incident PW 3 was pulling water from well. The PW 3 has also stated that she was drawing water from a well at the relevant time. She was informed by PW 2 that her father was assaulted and taken away by accused persons. From the said sentence in isolation it may be interpreted that PW 3 neither saw any incident of assault on the victim and taking away the victim by accused persons. But in the next sentence she stated that she also witnessed that the appellants and two absconding accused (mentioning their names) were assaulting her father and dragged him towards western side. PW 3 followed them and requested them to save her father's life when appellant Joleman (A- 1) caught hold of hair of PW 3 (PW 1 stated that Sajahan caught hold hair of PW 3) and threatened her with dire consequence in case of resisting them stating that her father enjoyed pleasure in giving evidence. The said evidence of PW 3 appears to us as probable. According to PW 3, her father gave evidence in the case of murder of her elder brother against Kalu, Torub and Abu Taleb. She stated the relationship of said three persons with A- 1. The said evidence of PW 3 appears to us as probable. According to PW 3, her father gave evidence in the case of murder of her elder brother against Kalu, Torub and Abu Taleb. She stated the relationship of said three persons with A- 1. This PW 3 stated that she caught the feet of her father but accused persons did not stop chopping him and that accused persons pulled her father to the middle of the field and PW 3 returned home and informed the villagers. Corroborating PW 1 she also stated that she along with PW 1, PW 2, PW 4 and PW 6 accompanied police in search of her father and they found dead body of her father in field of mustard plants. They found many cut injuries on the body of the victim. PW 3 has also stated about inquest over her father's dead body held by police. PW 3 put her LTI on the inquest report which is corroborated by exhibit- 1. This PW 3 is an illiterate village woman. She faced a very lengthy cross-examination done on behalf of the appellants. She made no accusation against acquitted accused Sabirul Sk. She firmly stated about existence and location of dug-well wherefrom she was lifting water at the relevant time of occurrence. She gave a vivid description of the topography of a major part of village - Adwaitanagar during cross-examination and creditably she established her veracity. It reveals from her evidence that unfortunately the village - Adwaitanagar witnessed incidents of murder of several persons like Rajjak, Atabul, Mosa, Rabiul, Seru, Zakir, Sahjamal and the victim of this case Sabdul Sk. She gave a categorical description against the appellants as to how they took part actively in assaulting the victim with sharp cutting deadly weapons at the time of taking away the victim from the tea stall of Salim Sk. She made statement that it was possible for her to see the incident of assault from the dug-well although she was not aware at the time of first attack and assault on her father by the appellants and two absconding accused persons and she came to learn it from her brother PW 2 at the time of her lifting water from dug-well and thereafter she herself saw the incident of assault on the victim and taking him away by accused persons. From her evidence it reveals that PW 1 and PW 2 also witnessed the incidents from a nearby place. In substance the PW 3 deposed in support of prosecution case during lengthy cross-examination. It was argued on behalf of the appellants that the PW 3 made some statements in her deposition which she did not make during her examination by PW 13 under Section 161 of the Code of Criminal Procedure. Though at this stage we are not to refer to the statements made under the said provision of the Code, the appellants have argued that such reference is permissible for the sole purpose of pointing out contradictions in the prosecution case which benefits the accused. In our view, such lapse on the part of PW 3 are not contradictions but omission to say minute details before PW 13 soon after the incident of murder of her father which is not unnatural. Nothing has come out from PW 3 read with the deposition of PW 19 that PW 3 contradicted her previous diction. Had there been verbatim statement in deposition of PW 3 like her earlier statement made before PW 19 under Section 161 of the Code of Criminal Procedure we might have considered this illiterate village woman as tutored witness but we do not find any reason to label her as a tutored witness. However, we cannot consider the PW 3 as totally free from doubtful statements because this PW 3 stated that her father went to tea stall of Nurman to take tea and sat there facing south when accused persons came from northern side and caught her father but her father got rid of their clutch and entered into the tea stall of Salim to save his life. During her cross-examination she stated that Belal (PW 2) informed her about the incident first and she witnessed the incidents. As such, it should be presumed that before getting information from PW 2 the PW 3 did not see the incident the first attack on her father but she made statements as if she saw the incidents from the beginning which may not be true. We are also not unmindful that the PW 3 described the assault as chopping while the PW 17 found most of the injuries on the dead body during post mortem examination as stab wounds. We are also not unmindful that the PW 3 described the assault as chopping while the PW 17 found most of the injuries on the dead body during post mortem examination as stab wounds. Since the weapons used as per deposition of PW 3 are sharp cutting having points according to the structure of weapons said weapons may cause cut injuries or stab injuries depends upon the manner of assault by the assailant. Stab wounds are also deep cut wounds. As such, the contradiction between medical evidence of PW 17 and ocular evidence of PW 3 or PW 1 and PW 2 does not damage the very root of prosecution case. This PW 3 is also a witness, related to the deceased and PW 1 and PW 2. 19. PW 4 is sister in law of the victim Sabdul Sk. She has stated nothing against the acquitted accused Sabirul Sk. Corroborating PW 1, PW 2 and PW 3 this PW 4 deposed against the appellants and two absconding accused persons supporting the prosecution case during her examination-in-chief. In her examination-in-chief there is contradiction as the prosecution claims going of Sabdul (victim) to tea stall of Nureman before performing Namaj in a mosque beside that tea stall but PW 4 said that Sabdul went to the tea stall after performing Namaj in that mosque. PW 4 is also an illiterate village woman. She also faced a lengthy cross-examination. In her examination-in-chief she stated how and to which direction accused persons pulled Sabdul from the tea stall of Salim. Her given direction tallies with prosecution case and corroborated by exhibits 10 and 10 A. In her examination-in-chief PW 4 stated that accused Nekail (A- 2) and Joleman (A- 1) threatened Sabdul that they would do what they like if he did not compromise in the case of murder of Zakir. During her cross-examination she stated that they threatened Sabdul in her presence. It reveals from evidence of PW 19 that PW 4 made similar statement before PW 19 like examination-in-chief on that point but she did not mention her presence at the time of such threat. Matter of her presence during threat has been introduced by the appellants during cross-examination although according to the appellants she did not state specifically about her presence during her examination by PW 19 under Section 161 of the Code of Criminal Procedure or during her examination-in-chief. Matter of her presence during threat has been introduced by the appellants during cross-examination although according to the appellants she did not state specifically about her presence during her examination by PW 19 under Section 161 of the Code of Criminal Procedure or during her examination-in-chief. During cross-examination she admitted that she told the police that she got information that Nekail (A- 2), Joleman (A- 1), Kamal (A- 3) Sajahan and Ayub attacked Sabdul at the tea stall of Nureman. As such, we believe that any incident of attack on the victim at the tea stall of Nureman was not witnessed by PW 4 with her own eyes. But we do not find evidence in her cross-examination or in evidence of other PWs including PW 19 to disbelieve her narration regarding taking Sabdul away from the tea stall of Salim and leaving the dead body of Sabdul at the mustard field of Jainal. Be it mentioned that PW 1 and PW 3 also stated about presence of PW 4 at the time of search and recovery of dead body of Sabdul in the field of mustard plants in the night. During cross-examination PW 4 told that she told PW 19 that police recovered the dead body of Sabdul with wound marks from the field at night and she saw the dead body of Sabdul. Her said evidence has not been contradicted putting any question to PW 19. In summing up the discussion on evidence of PW 4 we do not disbelieve her evidence about presence of PW 4 at the time of recovery of dead body. This PW 4 is a relative of the deceased. 20. PW 5 is daughter in law of the victim Sabdul Sk. This PW 5 deposed that she witnessed that these three appellants and two absconding accused persons took Sabdul forcibly from the side of the shop of Nureman and they were assaulting Sabdul with sharp cutting weapons on the way. She has stated that dead body of Sabdul was found at a mustard field at night. PW 5 is also an illiterate village woman. From the totality of her evidence we find her also as a witness who is related to the victim and PW 1, PW 2, PW 3 and PW 4. 21. PW 6 is another son of victim Sabdul Sk. He also claimed himself as an eye-witness of the incident. PW 5 is also an illiterate village woman. From the totality of her evidence we find her also as a witness who is related to the victim and PW 1, PW 2, PW 3 and PW 4. 21. PW 6 is another son of victim Sabdul Sk. He also claimed himself as an eye-witness of the incident. According to him, hearing hue and cry he came and witnessed that five accused persons took his father forcibly towards field. PW 6 was going to rescue his father but A- 2 Nekail chased PW 6 and did not allow PW 6 to give water in the mouth of his father and threw brick bat towards PW 6. During cross-examination he stated that from Chanchki he informed about the incident to police over phone at about 10:45 p.m. The PW 16 stated during his cross-examination that PW 6 informed him over phone about the incident on 07.02.2004 at 8:20 p.m. In the night police came and on search his father's dead body was found in the field of Jainal. During his cross-examination he also stated that he works as a day labour at Panchami under Birbhum district at a stone crushing factory and he resides there but occasionally comes to village - Adwaitanagar. On going through the totality of deposition of PW 6 it appears to us that this PW 6 may be termed as chance witness of occurrence and his evidence cannot be said as free from doubt. 22. PW 7 is witness of execution of proclamation of attachment in the house of acquitted accused Sabirul Sk. During his cross-examination on behalf of the appellants existence of well beside Adwaitanagar Primary School is well proved. PW 7 stated that his son has a tea stall beside tea stall of Nureman. Appellants have taken from PW 7 by way of cross-examination that none will be able to see the well from their shop and none will be able to see their shop from the side of said well as there was obstruction by homes. It seems to us that such cross-examination was done in order to make PW 3 as not trustworthy. But significantly we like to mention that we have found that PW 3 heard from PW 2 about incident of attack on her father in the tea stall by accused persons and she witnessed the subsequent incidents. It seems to us that such cross-examination was done in order to make PW 3 as not trustworthy. But significantly we like to mention that we have found that PW 3 heard from PW 2 about incident of attack on her father in the tea stall by accused persons and she witnessed the subsequent incidents. As such, the result of such cross-examination does not fulfil the target of appellants against PW 3. At the time of hearing this appeal Mr. Ganguly pointed out the last line of cross-examination dated 27.11.2006 of PW 19 and claimed that there is no existence of well in the locality for which PW 19 did not draw any well in exhibit- 10. This arguments cannot be given importance because during cross-examination of PW 7 and other witnesses the appellants admitted existence of well beside Adwaitanagar Primary School. 23. PW 8 is a Para-teacher of Adwaitanagar Primary School. He is witness of seizure of sixty tiles from the house of A- 2 and he has proved his signature (exhibit- 4) on the seizure list. Appellants tried to establish through PW 8 also that tea stall of Nureman is not visible from the well situated beside the Primary School as there are some intervening homes. This evidence is also considered like cross-examination of PW 7. Surprisingly, PW 7 and PW 8 were not put any question during cross-examination against their statements made during examination-in-chief. 24. Similarly, PW 9 is witness of seizure of some tiles from the houses of accused Sabirul and Joleman (A- 1). Instead of putting any question to him about his examination-in-chief the appellants tried to prove the alibi of A- 1 and A- 2 during cross-examination. He stated that he along with A- 1 and A- 2 and one Noor Ali (DW 2) went to Chanchki at the home of Nurruddin (DW 1) in the morning and returned home at 9:00 p.m. and heard that Sabdul was kidnapped by 10/15 unknown persons. At the time of hearing this appeal Mr. Ganguly for the appellants submitted that although this PW 9 gave evidence against the prosecution but he was not declared hostile by prosecution. Learned Advocate for the State explained that PW 9 could not be cross-examined declaring hostile because during examination-in-chief the PW 9 stated nothing against prosecution. At the time of hearing this appeal Mr. Ganguly for the appellants submitted that although this PW 9 gave evidence against the prosecution but he was not declared hostile by prosecution. Learned Advocate for the State explained that PW 9 could not be cross-examined declaring hostile because during examination-in-chief the PW 9 stated nothing against prosecution. In our view, due to misconception of law the PW 9 was not declared hostile by prosecution during trial. In the eye of law PW 9 might have been declared hostile and cross-examined by prosecution with permission of Court lawfully when the PW 9 deposed during cross-examination to demolish the prosecution case at the very root. 25. Similarly, PW 15 has also stated during cross-examination that A- 1, A- 2 and absconding accused Ayub for attending a 'salish' relating to divorce of daughter of DW 1 at village - Chanchki stating that they stayed there at night. This PW 15 was also not declared hostile by prosecution. Be that as it may, the statements of PW 9 and PW 15 regarding defence plea of alibi appears as contradictory each other and also contradiction to the depositions of DWs. 26. Contradicting PW 9 the DW 1 Nuruddin Sk. on behalf of appellants stated that A- 1, A- 2 and others went to the house of DW 1 at village - Chanchki (Pakur) on 07.02.2004 at 2:00 p.m. He did not state names of PW 9 and PW 15 as persons attended any 'salish' of divorce at Chanchki as claimed by PW 9 and PW 15. This DW 1 claimed himself as father of the wife of the couple in divorce. 27. DW 2 claimed that he is father of the husband of the couple in divorce. Although DW 1 claimed that DW 2 and others went to the house of DW 1 at 2:00 p.m. on 07.02.2004 and stayed there up to 10:00 p.m. the DW 2 stated that they reached at about 3:30 p.m. at the house of DW 1 at Chanchki (Pakur) and returned therefrom at about 11:00 p.m. this DW 2 also did not mention names of PW 9 or PW 15 as attended any such salish at village Chanchki. 28. DW 3 Jamilur Rahman claimed himself as scribe of exhibit-A Talaqnama. 28. DW 3 Jamilur Rahman claimed himself as scribe of exhibit-A Talaqnama. He stated about presence of A- 1 and A- 2 at the time of execution of exhibit - A but he did not state about presence of PW 9 or PW 15 at that place. Statement of PW 15 regarding stay of A- 1 and A- 2 in the night of 07.02.2004 is also not admitted by any DW. The DW 3 did not state any time of alleged divorce on 07.02.2004. 29. If the cross-examination of PW 9 and PW 15 be treated as evidence in favour of appellants then the defence case of appellants as alibi supported by three DWs becomes weak due to major contradiction. 30. In view of our above discussions we find that attempt of PW 9 and PW 15 to demolish the prosecution case taking advantage of their cross-examination hopelessly failed. 31. PW 10 is hostile witness of prosecution. During his examination-in-chief he has stated about the incident happened at his tea stall at noon when 5/7 unknown persons called Sabdul from his shop and Sabdul followed them and in the evening of that day he heard that the dead body of Sabdul was found at Adwaitanagar field. He has been cross-examined on behalf of prosecution and defence both. He did not support the prosecution case against the appellants and he supported the defence alibi of A- 1 and A- 2 and proceeding one step more than defence plea of alibi he stated that A- 1 and A- 2 were at Chanchki on the date of incident during day and night. He has established himself as more interested to prove defence case than to speak the truth regarding incident of murder of Sabdul Sk. 32. PW 11 is another hostile witness of prosecution. He was also cross-examined by prosecution and defence both. He only stated that Sabdul was murdered but he denied his knowledge about the incidents of said murder. During cross-examination on behalf of prosecution he denied his knowledge as to whether accused persons were at their village or not after the incident. During his cross-examination on behalf of appellants he stated about existence of tea stalls of Nureman and Salim Sk. and a well by the side of school at Madhya Para of their village. During cross-examination on behalf of prosecution he denied his knowledge as to whether accused persons were at their village or not after the incident. During his cross-examination on behalf of appellants he stated about existence of tea stalls of Nureman and Salim Sk. and a well by the side of school at Madhya Para of their village. He stated that none will see anything from the side of the well if anything happened at the tea stall of Nureman or Salim. Such matter has been discussed by us at the time of discussion on evidence of PW 7. In our view, the deposition of PW 11 does not support the prosecution case or defence case. 33. PW 12 is another hostile witness of prosecution. He also did not give evidence either in favour of the prosecution or in favour of defence. 34. PW 13 is witness of recovery of incriminating weapons on the basis of statement of appellant Kamal Sk. ( A- 3) leading to discovery. This PW 13 is witness of seizure dated 07.11.2004 and he proved his signature on the seizure list (carbon copy) as exhibit- 5. He identified the recovered weapons which have been marked Mat. Exhibits 1, 2 and 3. One seized 'hansua' was not produced in Court during trial. It is a flaw on the part of prosecution. Although PW 13 stated about recovery of weapons from a home near Adwaitanagar Primary School, the exhibit- 5/C and PW 18 speak the seizure from a bush behind Primary School of Islampore. During cross-examination PW 113 admitted that he is an accused in connection with a case of attempt to murder to A- 3 Kamal Sk. Totality of evidence of PW 13 about recovery of weapons and identification of the same does not appear to us very much convincing. 35. PW 14 is another witness of seizure of weapons but his evidence also does not appear to us convincing as he stated that weapons were recovered at Adwaitanagar and showed by police to PW 14 at Islampore. 36. Considering the totality of evidence of PW 13, PW 14, PW 18, exhibit- 5/c, exhibit- 9, Mat. Exhibits 1, 2 and 3 we find that seizure of weapons on the basis of statement of A- 3 leading to discovery (exhibit- 9) is neither proved nor disproved but not legally proved. 36. Considering the totality of evidence of PW 13, PW 14, PW 18, exhibit- 5/c, exhibit- 9, Mat. Exhibits 1, 2 and 3 we find that seizure of weapons on the basis of statement of A- 3 leading to discovery (exhibit- 9) is neither proved nor disproved but not legally proved. We are of the opinion that failure on the part of prosecution to prove seizure of weapons cannot demolish the direct ocular evidence of occurrence given by PW 1 to PW 6. We like to say that due to defect on the part of investigating police Officer (PW 18) the prosecution failed to prove seizure of weapons beyond doubt. 37. PW 16 was the officer in charge of Samsherganj Police Station at the relevant time. He registered the first information report on receiving exhibit- 6 of PW 1 and drew the formal FIR (exhibit- 7). During his cross-examination he stated that on 07.02.2004 at 20:20 hours he got telephonic information from PW 6 that his father was kidnapped by some persons from their village Adwaitanagar and PW 16 lodged GDE NO. 317 dated 07.02.2004 and informed PW 19 to pursue the matter. Subsequently, PW 1 lodged the exhibit- 6 before PW 19 at village Adwaitanagar. 38. PW 17 held post mortem examination over the dead body of Sabdul Sk. He had proved carbon copy of post mortem report (exhibit- 8). He found multiple stab injuries on the dead body. Said injuries indicate that the victim was assaulted with sharp cutting pointed weapons by several persons. He has differentiated stab wound and chop wound during cross-examination. None of the prosecution witnesses stated about stab injury inflicted on the body of the victim by his assailants. Such contradiction about chopping wound and stab wound is as minor in nature because the eyewitnesses of prosecution do not claim that they saw the incident of assault from close distance and in our view according to their standard of literacy they may not be aware like PW 17 about difference of chopping and stabbing. 39. In this case according to the allegation of prosecution the occurrence started in the shop of Nureman but said witness Nureman has not been examined in trial. It is not enough to disbelieve the PW 1 to PW 5. 39. In this case according to the allegation of prosecution the occurrence started in the shop of Nureman but said witness Nureman has not been examined in trial. It is not enough to disbelieve the PW 1 to PW 5. Now a days the members of general public generally avoid witness-box against accused persons in connection with an incident of brutal murder. It is significant to note in this specific case of the prosecution that the victim was killed because he did not pay heed to the treat of accused persons in case of his giving true evidence in Court in connection with murder of his son Zakir on the day just before the date of his death. 40. Further allegation of prosecution is that the victim Sabdul got escaped from the persons who attacked him in the tea stall of Nureman and took shelter in the tea stall of Salim (PW 10) wherefrom he was dragged by his assailants but PW 10 did not make any allegation against any accused of the case. However, it is beyond controversy from his evidence that Sabdul Sk. was taken away by 5/7 persons from his tea stall and thereafter his dead body was found at Adwaitanagar field. This part of his evidence is corroborative to the prosecution case as well as evidence of PW 1 to PW 5. 41. In summing up the evidence on record it is crystal clear that although the occurrence started in day time within a village market place no independent person came forward to describe the incidents occurred on the fateful date. Prosecution is successful in proving the fact that on the preceding date of the date of occurrence the victim deposed against the near relations of accused Joleman Sk. (A- 1) in connection with murder of victim's son Zakir and before that date of threat was given to victim Sabdul Sk. by the appellants with dire consequence in case of his making true statements in Court in the case of murder of Zakir. It is a strong direct as well as circumstantial evidence against the appellants to prove their mens rea for committing murder to Sabdul Sk. Preponderance of probability also goes in favour of prosecution in the matter of absence of evidence of any independent witness. It is a strong direct as well as circumstantial evidence against the appellants to prove their mens rea for committing murder to Sabdul Sk. Preponderance of probability also goes in favour of prosecution in the matter of absence of evidence of any independent witness. It is not unnatural for disinterested persons not to invite risk of life speaking the truth against culprits of an incident of brutal abduction and murder of a person. At the same time according to the facts and circumstances of this case it is quite natural for the interested nears and dears of the victim not to rope innocent persons screening the real culprits. From the trend of cross-examination to the vital witnesses of the prosecution there is no reason to believe that PW 1, PW 2, PW 3, PW 4 and PW 5 might not have seen the incidents of dragging and assaulting the victim with deadly weapons by appellants and taking him away towards field from the village. Regarding alibi of A- 1 and A- 2 we find that the alibi of A- 1 and A- 2 with claim of their presence at village Chanchki (Pakur) in Jharkhand at the relevant time is not at all proved. In connection with evidence relied by appellants we find major contradictions about time of their going to Chanchki or return therefrom. If for the sake of arguments we believe that they went to Chanchki on the fateful date either in morning or at 2:00 p.m. or 3:30 p.m. then also it was not impossible for them to take part in the heinous crime at 5:00 p.m. at village Adwaitanagar as the distance between Pakur and Adwaitanagar is only 7 k.m. (vide DW 1 first paragraph). 42. In the result of examination of the appellants under Section 313 of the Code of Criminal Procedure we do not find any defect. Prosecution evidence was elaborately placed by the Trial Court to the appellants for their giving explanation but they only disclosed their defence claiming themselves as not guilty and alibi of A- 1 and A- 2. There is no cogent explanation to disbelieve the PW 1, PW 2, PW 3, PW 4 and PW 5 who have deposed as eye-witnesses of the occurrence. 43. There is no cogent explanation to disbelieve the PW 1, PW 2, PW 3, PW 4 and PW 5 who have deposed as eye-witnesses of the occurrence. 43. In course of our discussion made above we have followed the principle discussed by the Hon'ble Apex Court in the case of Kapideo Mandal and others v. State of Biharand in view of discussion in para- 8 of the said decision we are fortified to rely upon PW 1 to PW 5 as trustworthy eye-witnesses of the occurrence of the instant case. As per discussion on para- 7 of the reported case the medical evidence ruled out fire arm injury of the victim while prosecution case as per para- 4 of that case the victim was fired at by fire arm which was supported by ocular evidence. Under such serious contradiction benefit of doubt was extended in favour of accused persons. In the instant case we do not find such serious contradiction between ocular evidence and medical evidence as discussed above. As such the prosecution case remains unaffected by the aforesaid precedent. 44. Similarly, the another decision of the Hon'ble Supreme Court of India reported In (2011) 1 SCC (Cri) 845 also does not fortify the defence in the case in our hand on the same analogy. 45. Following the principles discussed in para- 9 of the decision reported in 2005 Supreme Court Cases (Cri) 1050 we allow the appellants to rely upon the result of cross-examination of PW 9 an PW 15 who were not declared hostile by prosecution although they supported the alibi of A- 1 and A- 2. But in our view evidence of PW 9 and PW 15 recorded during their cross-examination has in fact destroyed the plea of alibi contradictions the DW 1, DW 2 and DW 3. Said reported decision also does not strengthen the defence plea. 46. The case reported in 2014 (3) Supreme Court Cases (Cri) 380 has dealt with elaborately about plea of alibi in a criminal trial, meaning of the term alibi, standard of proof of alibi and unchanged burden of prosecution to prove its case beyond reasonable doubts. Following the principles discussed in that judgment we looked into the evidence adduced by prosecution in this case first and on being satisfied about satisfactory discharge of burden by the prosecution we looked in the defence plea and evidence of alibi. Following the principles discussed in that judgment we looked into the evidence adduced by prosecution in this case first and on being satisfied about satisfactory discharge of burden by the prosecution we looked in the defence plea and evidence of alibi. In the instant case it cannot be said as highly improbable for A- 1 and A- 2 to remain present at the place where the crime was committed. We like to reiterate that the distance between Chanchki (Pakur) and village - Adwaitanagar is only 7 k.m.. In our considered view said precedent also does not protect the appellant to avoid their active involvement in the ghastly murder of Sabdul Sk. after abducting him from the tea stall of PW 10. 47. In this case exhibit- 7 speaks that the FIR was registered as FIR No. 10/04 on 08.02.2004 receiving exhibit- 6 on 08.02.2004 at 2:40 a.m. and it was sent to learned Magistrate on 08.02.2004 and no delay occurred. In the instant case there is no substantive discrepancy between FIR and ocular evidence adduced by prosecution. In this case the autopsy surgeon ( PW 17) described fourteen items of injuries found on the dead body of the victim Sabdul Sk. and out of the injuries excepting two superficial lacerated wounds all injuries are stab injuries. During cross-examination PW 17 agreed that stab wound is a penetrating injury caused by some sharp cutting weapon such as knife, knel, niddle, arrow, screw diver etc. According to the eye-witnesses of the incidents the assailants of the victim used sword, dagger, 'cheni'and 'hansua'. Said weapons have sharp edge and poDint. No specific question was put to PW 17 as to whether such type of weapons might cause the stab injuries of the deceased. Nature of stab injuries described by PW 17 with measurements clearly suggests possibility fo causing the injuries by the weapons as alleged by prosecution. We are satisfied to believe the eye-witnesses about assault on the victim with the weapons as described by the prosecution. We do not find major contradiction between ocular evidence and medical evidence in this case. It is a lapse on the part of prosecution not to show the weapons, seized to the PW 17 for his opinion but in the instant case such lapse is not fatal in proving the prosecution case beyond reasonable doubt. We do not find major contradiction between ocular evidence and medical evidence in this case. It is a lapse on the part of prosecution not to show the weapons, seized to the PW 17 for his opinion but in the instant case such lapse is not fatal in proving the prosecution case beyond reasonable doubt. It does not cause aberration in the course of justice in this case. We have discussed about non-examination of independent witnesses in this case by the prosecution which is connected with mens rea of appellants for the crime and we are satisfied that the prosecution has successfully proved mens rea against the appellants. Considering the above aspects mentioned in this paragraph and going through the observations made by the Hon'ble Supreme Court of India in its decision reported in AIR 1976 SC 2423 we are of the view that according to the facts and circumstances of the instant case the defence of the appellants is not fortified by that cited decision to cast a shadow of doubt on the prosecution case. 48. In this case faulty investigation is established due to non-examination of the incriminating weapons etc. at the instance of the investigating Police Officer in F.S.L. Since the evidence adduced by the prosecution regarding occurrence though the eye-witnesses (although close relation of the victim) is so strong the lapse in investigation stands completely covered. Thus we are fortified by the observations made by the Apex Court in the decision reported in AIR 2011 SC 184 to ignore such lapse in investigation. 49. In the case reported in AIR 1956 SC 460 it has been observed in last part of paragraph- 9 "But that, it has again been repeatedly held, is no ground for not acting upon that testimony if it is reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened that afternoon". Such observation was made about close relation of the deceased with witnesses. In the case in our hands we also follow that principle regarding the eye-witnesses of the occurrence. 50. Such observation was made about close relation of the deceased with witnesses. In the case in our hands we also follow that principle regarding the eye-witnesses of the occurrence. 50. Following the principle laid down in paragraph- 11 of the decision of the Hon'ble Apex Court reported in AIR 2013 SC 3681 at page 3687 we have carefully scrutinised and appreciated the evidence of PW 1 to PW 5 and in our view, said witnesses have proved themselves before us as intrinsically reliable and their evidence is inherently probably. They cannot be disbelieved merely on the ground that the witnesses are related to each other and also to the deceased. 51. In paragraph- 6 of the decision of Madhya Pradesh High Court reported in 1994 Cri LJ 494 at page 499 also view has been expressed for placing reliance on related witnesses as we have done in this judgment as discussed above. 52. In conclusion, we firmly find and hold that the Trial Court has rightly convicted and sentenced to the appellants of this appeal and there is no reason to set aside the impugned judgment. 53. As a result, this appeal fails and dismissed. Urgent Photostat certified copy, if applied for, be given promptly to the parties or their advocates observing all legal requisite formalities. I agree. Appeal dismissed.