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2016 DIGILAW 447 (CAL)

Serajul Ali v. State of West Bengal

2016-05-20

RAJIV SHARMA, SHIVAKANT PRASAD

body2016
JUDGMENT : SHIVAKANT PRASAD, J. This appeal is directed against judgment and order dated 29.02.2008 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Malda, in Sessions Trial Case No. 91 of 2004 corresponding to Manikchak P.S. Case No. 17 of 2000 being G.R. Case No. 234 of 2000 convicting the accused appellants under Section 364/109 of Indian Penal Code and sentencing them to imprisonment for life and fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for sixty days and the appellants were further found guilty for the offence punishable under Section 302/109 of the Indian Penal Code and sentence to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for another sixty days and directed that both the sentences under Sections 364/302/109 of the Indian Penal Code. The brief fact leading to this appeal is that on 12.02.2000 at about 11 P.M. in the night the appellants called the deceased Mahab Ali from his Khosbartola residence to settle the dispute of land and took the deceased with them. On the next morning on 13.02.2000 at about 6 A.M., the deceased was found hanging from a ‘babla’ tree in the wheat field of Saifuddin Ali at Narottampur Mouza. ‘Lungi’ and ‘genji’ which the deceased Mahab Ali wore, were in torn condition and stain of blood were found on the ridge of land at few distance and the wheat plants were found scattered. The dead body was seen with blood coming out of nose and with the mark of strangulation on the neck. It is alleged that accused persons namely, Tamij Ali and Serajul Ali had killed his elder brother Mahab Ali by strangulation and the dead body was hanged up on the ‘babla’ tree. On the basis of complaint, Manikchak P.S. Case No. 17 of 2000 under Sections 364/302/201/34 IPC was started and accused persons were arrested by the I.O. On completion of the investigation, I.O. submitted Charge-sheet being No. 100/2000 against the accused persons under Sections 364/302/201/34 of the IPC. After the case was committed to the Court of Sessions, charges under sections 364/302/109 of the IPC were framed against the said accused persons who abjured the guilt and claimed a trial. The prosecution examined as many as 14 (Fourteen) witnesses to substantiate charges levelled against the accused persons. After the case was committed to the Court of Sessions, charges under sections 364/302/109 of the IPC were framed against the said accused persons who abjured the guilt and claimed a trial. The prosecution examined as many as 14 (Fourteen) witnesses to substantiate charges levelled against the accused persons. The prosecution also adduced in evidence following documents- The Ejahar Ext.-1, the endorsement of the O.C. of the P.S. Ext.-1/1, Sketch map and index Ext.-3 and 3/2, Inquest Report Ext.-4, dead body challan Ext.-5, seizure list of blood stained earth, wheat plants and strangulated rope Ext.-6, seizure list of wearing apparels of the deceased Ext.-7, report of the I.O. Ext.-8, the P.M. report Ext.-9 have been marked exhibits on behalf of the prosecution. After the prosecution closed its evidence, the accused persons were examined under Section 313 of the Cr.P.C. but they declined to adduce any defence evidence. The defence case is one of denial of charges which emerges the trend of the cross-examination of prosecution witnesses. The learned Trial Judge convicted and sentenced the appellants accused persons by the impugned judgment which is under challenge by the appellants inter alia, on the grounds that the learned Court below erred both in law and facts in passing the impugned judgment, liable to be set aside. Mr. Swapan Kumar Mallick, learned Counsel for the appellants has submitted that the learned trial Judge wrongly passed the impugned judgment of conviction and sentence against appellants solely relying on the evidence of P.W.-9 and P.W.-14. It is further contended that evidence of P.W.-6, mother of the deceased is not worthy of credence as the evidence to the effect that appellants called her son in the night of 12.02.2000 on the pretext of settling a land dispute without showing anything that there insisted any such dispute. Mr. Mallick also contended that P.W.-1 de facto complainant had disowned the statement made in the FIR as he stated in examination-in-chief that he could not say as to who wrote the FIR. He has after receiving information from a man of his locality along with others had been to the land of Saifuddin Ali in mouza Narottompur where he found the dead body of his elder brother Mahab Ali and his throat was tried by a rope with ‘babla’ tree. He has after receiving information from a man of his locality along with others had been to the land of Saifuddin Ali in mouza Narottompur where he found the dead body of his elder brother Mahab Ali and his throat was tried by a rope with ‘babla’ tree. He also seen dried blood on the land, wheat crops in scattered condition and the wearing ‘lungi’ and ‘genji’ of Mahab Ali in torn condition. He strongly believed that his elder brother was murdered by somebody. He also saw the mark of strangulation when the accused persons were arrested obviously after the lodgement of FIR wherein he has disclosed the names of the accused persons with the clear allegation that the accused persons had landed dispute with the deceased who used to holdout threat on him with dire consequences and that on the fateful night they had called his brother on the plea of settling the land dispute. During cross-examination P.W.-1 stated that he could not say who wrote the FIR and he has no idea about the contents of FIR whereas the scribe of written complaint has been examined before the trial Court as P.W.-10 who has in clear crystal term stated that Sahab Ali told him to write the complaint and as per his version, he wrote the FIR and the contents of which were read over to him and knowing the contents of the FIR to be correctly written as per his version, he put his LTI on the FIR in his presence and accordingly, the P.W.-10 Enamul Haque has proved the written FIR as Ext.-1. It is true that P.W.-10 has not endorsed on the FIR about reading over the contents of FIR to the maker of the FIR P.W.-1 but that by itself is not fatal to the prosecution case. FIR becomes immaterial when a case is committed to a Court of Sessions. FIR reflects that maker of the FIR has strong suspicion against the accused persons named in the FIR because they held threat on the deceased on land dispute and prosecution case finds corroboration by its maker. Guljar Ali P.W.-2, Hayat Ali P.W.-3, Basir Alam P.W.-4, Manu Sk @ Manurul Sk. FIR reflects that maker of the FIR has strong suspicion against the accused persons named in the FIR because they held threat on the deceased on land dispute and prosecution case finds corroboration by its maker. Guljar Ali P.W.-2, Hayat Ali P.W.-3, Basir Alam P.W.-4, Manu Sk @ Manurul Sk. P.W.-5 could not say as to who had caused the death of Mahab Ali and for what reason but P.W.-2 has seen the dead body found tied with a ‘babla’ tree by neck with rope in the wheat land of Tamijuddin and also found dried blood on the land and crops in broken condition. Samnur Bewa, P.W.-6 mother of the deceased Mahab Ali has stated on oath that Serajul and Tamijuddin had called her son from her house and took him with them but her son did not return home in the right. In the morning having learnt that dead body of her son was in the field, she went to the field and found his dead body lying in the land of Eshaque Moulavi. According to her it was about 7 P.M. her son came whom after enjoying video show and wanted to take meal but Serajul and Tamijuddin called him and he went out from the house with them. She has identified both the accused persons in Court. She has further stated that there used to be transaction between the accused persons and her son in respect of landed property and for that purpose they had called her son to accompany them. In this context defence put a suggestion to her that she did not state to the I.O. about the said fact but she has candidly denied the suggestion. Appraising her evidence we find that she is a credit worthy witness inasmuch as no suggestion was put to the I.O. by the defence showing that her statement was not so recorded by the I.O. Therefore, her evidence corroborats the prosecution case. Evidence of P.W.-7 Abu Taleb a witness to the inquest report pointed out that he saw the dead body of Mahab Ali lying in the land of Esahaque Mouluvi of village Uttar Chandipur and that police came to the P.O. and shifted the dead body from there. Evidence of P.W.-7 Abu Taleb a witness to the inquest report pointed out that he saw the dead body of Mahab Ali lying in the land of Esahaque Mouluvi of village Uttar Chandipur and that police came to the P.O. and shifted the dead body from there. S.I. Sanjoy Ghosh, P.W.-8 was the Second I.O. of the case and took up investigation on 31.3.2000 and examined one witness Basir Alam but almost investigation was completed by the previous I.O.. P.W.-8 submitted charge-sheet against the accused persons considering the materials in the case docket obviously he has no personal knowledge about the incident save and except collecting evidence during investigation. According to him, he submitted a report Ext.-8 before the SDJM though he did not examine Jahanura Bewa P.W.-14 as she was not available but she had made her statement during the investigation before the previous I.O. the accused persons called her husband who accompanied them to resolve the landed dispute but he had not returned home on that night. According to her in the next morning she heard cry of the accused Tamij Ali that Mahab Ali Sk. had committed suicide by hanging. It is true that she could not say anything more but she had firm belief and suspicion that accused persons murdered her husband. Report Ext.-8 as submitted by P.W.-8 would show that P.W.-14 had no relation with her deceased husband for long and was staying separately but that does not mean that her evidence has to be brushed aside. Lutfar Sk., P.W.-9 was the next door neighbour of the deceased Mahab Ali. He stated in unequivocal term that it was in the month of falgoon in the night at about 10:11 O’clock about six years ago, he along with others came back home from video hall after enjoying video show was going to take dinner, he heard somebody calling Mahab Ali. Then, he went out and by putting his torch light on, he saw Tamil Ali and Serajul calling said Mahab Ali. He also asked them as to why they were calling him in that night to which they replied that for settlement of dispute of landed property they were calling Mahab Ali. Mahab Ali came out and he went out with Tamij Ali and Serajul in his presence. He also asked them as to why they were calling him in that night to which they replied that for settlement of dispute of landed property they were calling Mahab Ali. Mahab Ali came out and he went out with Tamij Ali and Serajul in his presence. In the morning next day, he heard from the villagers that the dead body of Mahab Ali was lying in the field of village Rehatpur. Police came to the village and he along with others accompanied police to the place where the dead body of Mahab Ali was lying on the wheat field of Saifuddin of said village. P.W.-9 saw the dead body of Mahab Ali tied with rope with a ‘babla’ tree. Police held inquest over the dead body in his presence and others to which he is a witness to the inquest report Ext.-4. We do not find the evidence of P.W.-9 being discredited by the defence. P.W.-11 S.I. Santanu Koar on receipt of the FIR started Manikchak P.S. Case No. 17/2000 vide his endorsement on it as Ext.-1/1 and drew up formal FIR Ext.-2. On the basis of which investigation was taken out by the Investigating Officer. S.I. Dilip Kumar Dey P.W.-13 the first I.O. of this case held investigation by visiting the P.O., prepared the sketch map of P.O. with index Ext.-3 and held inquest over the dead body in presence of witnesses Ext.-4 and sent the dead body to hospital for post mortem vide dead body challan Ext.-5 to ascertain the actual cause of death. He also seized alamats on the spot under seizure list Ext.-6 and proved MAT Ext.-I collectively. He recorded the statement of witnesses and seized wearing apparels of the deceased under Seizure list Ext.-7 MAT Ext-II collectively. I.O. arrested the accused persons but could not conclude the investigation due to his transfer. A suggestion in the cross-examination has been put to the I.O. to this effect that Lutfar had not stated to him that at about 10 O’clock at night in between 12.2/13.2.2000 he along with others came back home after enjoying the video show and about Tamij and Serajul calling Mahab Ali at night. This piece of evidence appears to be mere defensive suggestion put to the I.O. but does not go to the root of the prosecution case. Dr. This piece of evidence appears to be mere defensive suggestion put to the I.O. but does not go to the root of the prosecution case. Dr. M. L. Das P.W.-12 Autopsy Surgeon held P.M. examination over the dead body of Mahab Ali and found subcutaneous tissue below ligature mark ruptured, strained with extra vasseted blood and fracture of hyoid curtiledge with huge extra vassation in an around ligature mark with both lungs and brain congested. According to him, the death was due to strangulation, ante mortem and homicidal in nature. The entire prosecution case rest on the circumstantial evidence based on last seen theory. Mr. Mallick has submitted that appellants cannot be convicted solely based on the last seen theory. It is for the prosecution to prove its case on evidence up to the hilt and conviction of the appellants should not have been based on suspicion, however, strong it may be. Mr. Mallick relied on the authority in case of Kanhaiyalal v State of Rajasthan reported in (2014) 2 Supreme Court Cases (Cri) 413 : (2014) 4 supreme Court Cases 715, in support of his contention, wherein it has been observed in paragraph 12 and 15 as follows- “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. 15. The theory of last seen- the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan. ” Mr. Mallick further referred to a case of State represented by Inspector of Police, Tamil Nadu v. Sait Alias Krishnakumar reported in (2009) 3 Supreme Court Cases (Cri) 1037, wherein it has been held in paragraph 7 as follows- “7. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan. ” Mr. Mallick further referred to a case of State represented by Inspector of Police, Tamil Nadu v. Sait Alias Krishnakumar reported in (2009) 3 Supreme Court Cases (Cri) 1037, wherein it has been held in paragraph 7 as follows- “7. The residual question was the reliability of the evidence tendered by P.W.-8. Here again, the High Court found that his version lacked credence. He claimed to be a person who had seen the accused after some time of the incident with a bloodstained knife. But his conduct was found to be unnatural. If he was the only person to have seen the accused from close quarters, it was not explained why he did not say so during investigation. Such a version for the first time in the Court has been rightly discarded by the High Court. Therefore, the High Court directed acquittal, as noted above.” We have respectfully gone through the decisions and benefiting the concept about the last seen theory as observed in the afore cited decisions we are of the considered view that the decisions are distinguishable from the facts and circumstances of the instant case. We are aware of the principles relating to proof in a criminal trial that the evidence should be in consonance with probabilities and consistent with other evidence and probability should be given preference to possibility, but mere suspicion is not the proof, and suspicion, however strong, cannot take the place of proof, and is not sufficient to warrant a conviction. We find that the written complaint described about a suspicion in the mind of FIR maker. P.W.-14 wife of the deceased ahs also stated about the firm belief and suspicion against the appellants having committed the crime of murder, but consistently, the prosecution witnesses No. 9 and mother of the deceased P.W.-6 have consistently stated about the fact that it was the accused appellant to call the deceased on the fateful night to accompany them on the pretext of settling land dispute and they have seen the deceased to go along with the accused appellant but the deceased did not return home on fateful night and for ever. It was in the next morning that the prosecution witnesses heard about the dead body of the deceased hanging by neck tied with a ‘babla’ tree. It was in the next morning that the prosecution witnesses heard about the dead body of the deceased hanging by neck tied with a ‘babla’ tree. It would be pertinent to take note of the evidence of P.W.-14 who learnt from appellant that he had raised cry in the morning that the deceased had committed suicide and this piece of evidence goes uncontroverted by defence. Therefore, such conduct of the accused persons shows his guilty mind, the circumstantial evidence becomes of clinching nature whereon, accused can be convicted. In Kanhaiyalal case (Supra), there was cordial relationship with the accused and the deceased for a long time. So the theory of last seen together was not applicable in that case but the factual aspects of the instant case does not bear the similar fact situation inasmuch as the FIR and prosecution witnesses have talked about landed dispute between the accused persons and the deceased and about the fact of threat held out at the deceased at with dire consequences. Case of Inspector of Police (Supra) is also not apposite to the facts and circumstances of the instant case because, in the present case P.W.-6 and P.W.-9 have unequivocally stated on oath having seen the deceased going with accused persons/ appellants herein when the latter called the former to settle the land dispute and on that pretext they took the deceased with them on the fateful night and the version of the said witnesses in Court conclusively prove the theory of last seen together. We are, accordingly of the view that cumulative effect of circumstances leads to negate the innocence of the accused appellants and within all human probability the appellants committed the crime of murder of the deceased. Having bestowed upon anxious consideration to the facts and circumstances of the case we hold that the learned Trial Judge has rightly arrived in his judgment by holding the accused appellants guilty of the offences charge under Sections 364/302/109 of the IPC. Thus, we do not find any ground to interfere into the impugned judgment and is upheld. As a result, appeal fails and is dismissed. Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court forthwith. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.