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2016 DIGILAW 602 (CAL)

Sk. Patal @ Sarifuddin v. State of West Bengal

2016-08-03

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. Doubting the correctness of the judgment dated 30.04.2015 and order of conviction dated 04.05.2015 recorded by the learned Additional District Judge 4th Court, Suri, at Birbhum, the appellant has preferred this appeal contending inter alia that the learned Judge while passing the impugned order could not evaluate the evidence of the witnesses and the learned Court below wrongly believed that the witnesses were present at the alleged place of occurrence. 2. According to the appellant learned Court below had proceeded with presumption and surmise and the falsehood which had overshadowed the truth. If the assessment of evidence could have been done in its proper perspectives in that case such finding would not have been recorded by the Trial Court. 3. Factual matrix of the case is required to be recapitulated. Sieving doubt unnecessary details, the prosecution case in a capsulated form is such that on 06.08.2009 in the morning, the present appellant along with others went to plot No. 1000 for destroying the planted paddy, which was sowed by the victim. After getting such information the victim and his son went there and altercation took place amongst the rival parties. When altercation was going on suddenly the rival groups started hurling of bombs. In the meantime, one Sk. Piara along with some local villagers rushed to the spot and they found one person of each group was lying on the ground and sustained bomb explosion injury. The said Sk. Piara then took the victim Selim to Suri Sadar Hospital wherein he was admitted and around 12:00 to 12:30 P.M the victim died there. A written complaint was filed which was scribed by Sk. Nasibuddin. 4. After the F.I.R. is registered, the prosecution agency came into operation. In course of investigation the Investigating Officer has visited the place of occurrence, prepared rough sketch map with index, collected inquest report, collected post mortem report and after seizing the wearing apparels the Investigating Officer has submitted charge-sheet under Section 147/148/149/302 of the Indian Penal Code read with Section 9(B)(II) of the Indian Explosive Act. Pursuant to the charge-sheet submitted by the Investigating Officer, the appellant faced the trial. The learned Trial Court, on perusal of the materials on record framed the charges under the aforesaid sections and the charges were read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. Pursuant to the charge-sheet submitted by the Investigating Officer, the appellant faced the trial. The learned Trial Court, on perusal of the materials on record framed the charges under the aforesaid sections and the charges were read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. 5. It appears from the L.C.R. that the learned Trial Court had recorded the evidence of the prosecution witnesses, examined the appellant under Section 313 Cr.P.C. and after hearing argument of both sides has passed a reasoned judgment. 6. At the time of argument, learned Counsel appearing on behalf of the appellant vehemently submitted that the impugned judgment and order of sentence are required to be interfered with on the ground that there are some discrepancies which the learned Court below had lost sight of. According to him, there is no witnesses to the occurrence in spite of that learned Court below has accepted the ‘hearsay evidence’ as a gospel truth. He also contended that this appellant also sustained a severe injury due to bomb blast, which allegedly was thrown by the victim and his group. His main argument was such that when the victim tried to hurl bombs upon them suddenly a bomb fell down and gets it blasted. He further added that the learned Court below failed to appreciate the factual aspect in its all probability. 7. Learned Counsel appearing on behalf of the state on the contrary argued that witnesses are the truthful witnesses and they rushed to the occurrence soon after the occurrence and on way to hospital the victim breathed his last. So there was no chance of embellishment in the written complaint. If also argued that the written complaint was written by Sk. Nasibuddin on behalf of the step brother of the victim. After making such submission learned Counsel appearing on behalf of the state argued that the judgment of the learned Trial Court is quite unimpeachable and it does not warrant any interference. 8. Now this Court is to consider the evidence of prosecution witnesses to ascertain if the prosecution has been able to prove the case beyond all reasonable doubt and if the Trial Court’s finding is justified or not. Therefore, this Court should now listen to the witnesses. P.W.1 is the defacto complainant. 8. Now this Court is to consider the evidence of prosecution witnesses to ascertain if the prosecution has been able to prove the case beyond all reasonable doubt and if the Trial Court’s finding is justified or not. Therefore, this Court should now listen to the witnesses. P.W.1 is the defacto complainant. He lodged the complaint against the present accused/appellant along with other accused persons and he has identified the accused persons in course of his deposition before the Trial Court. Although he was not the witness to the occurrence yet he deposed as to how the occurrence took place. According to him, on 06.08.2009 in the morning the co-accused Nur Ali along with his henchmen had gone to the plot No. 1000, which according to the defacto complainant, belonged to the victim. Victim was a bargadar of that land and he had sowed paddy seeds in the said land. Nur Ali provoked his associates to kill the victim. The accused appellant then threw a bomb towards the victim and as a result victim sustained injury due to such bomb blast. While the appellant was trying to hurl another bomb suddenly it fell down on the earth and due to such blast the appellant was also injured to some extent. Victim was taken to hospital and breathed his last. In course of cross-examination he also sticks to his conviction that Selim was the bargadar of entire plot. Before the incident took place a meeting was held by the peace committee over the issue of disputed plot No. 1000 to which villagers attended. Notice was also issued to the victim by D.L.R.O. office. The written complaint was prepared in his house but before lodging that said written complaint, one Amer Ali had also lodged a complaint. Other parts of his cross-examination was in the form of denial. 9. P.W. 2 is the scribe. According to him, hearing the hue and cry he went to the spot and found the appellant along with some others, who were proceeded towards Selarpur field and the appellant and his associates were carrying lethal weapons. Suddenly the accused appellant threw a bomb which hit the victim. Local villagers chased the appellant and in the meantime another bomb fell from the hand of the appellant for which the appellant also sustained injury. 10. Suddenly the accused appellant threw a bomb which hit the victim. Local villagers chased the appellant and in the meantime another bomb fell from the hand of the appellant for which the appellant also sustained injury. 10. Instantly, the local villagers took the victim to hospital and as per dictation of P.W. 1 the written complaint was written which is marked Exhibit No. 2. Police has seized remnants of the explosive substances under a seizure list and put his signature. He also categorically stated that the appellant had hurled bomb upon Selim. 11. P.W. 3 is a co-villager. From the sketch map it appears that he is adjacent land owner of plot No. 1000, wherein the victim had claimed to have sowed paddy seeds. He categorically stated that before the fateful day, paddy plants were planted by the victim and at that time the present appellant along with others came to the disputed portion of land and wanted to remove the planted paddy. At that time victim chase them by saying that he has cultivated the land and it would be determined in future regarding ownership of the paddy. He found the victim lying on the ground and he heard the sound of explosion. In course of cross-examination he stood as a ‘Rock of Gibraltar’ and stated firmly that he was watching the incident all along. 12. P.W. 4 is also co-villager and he is a man of easy conscience. Yet he has narrated incident which exactly tallies with the prosecution case. In course of cross-examination he admitted that he is the relation of the victim and he told the police as to how the incident occurred. 13. P.W. 5 is not the witness to the occurrence but he came to know from his family members that there was bomb blast between two groups i.e. appellant and the victim and for which victim died. 14. P.W. 6 is the medical officer who had conducted the post mortem. While doing his work as an autopsy surgeon, he found the following injuries on the dead body. (i) One lacerated injury over the back of the chest wall atthoracic vertebral level measuring 8cm.x14cm.x5cm. (ii) Causing lacerated injury into muscle nerve and blood vescels at that level muscle and skin and surrounding structure outside and causing a deep cavity. (iii) There was a fracture of thoracic T3 vertebral on the body with dislocation. (i) One lacerated injury over the back of the chest wall atthoracic vertebral level measuring 8cm.x14cm.x5cm. (ii) Causing lacerated injury into muscle nerve and blood vescels at that level muscle and skin and surrounding structure outside and causing a deep cavity. (iii) There was a fracture of thoracic T3 vertebral on the body with dislocation. (iv) Spinal cord was also lacerated. (v) Scattered mud on his body, hands and legs. According to him death was due to the effect of explosion. He categorically opined that there was no mark of injury on the frontal side of the deceased. His such evidence indicates that the victim sustained bomb blast injury from behind. At the time of argument learned Counsel for the appellant tried to impress this Court that there was mutual fight between the parties and as a result one of the bombs, which had been carrying by the deceased fell down, and he sustained such injury. But his such argument does not impress me since injury is at the back side. 15. P.W. 7 is Sk. Sahabul, who is the son of the victim. According to him on the fateful day he had been doing cultivation along with his deceased father. Suddenly he found this appellant along with others entered into the land and started to damage the crops. They were trying to prevent them and at that time the miscreants hurled bomb upon them and as a result his father succumbed to his injuries. Thereafter, local villagers came and witnessed the incident. The convict/appellant and others fled away. The victim was taken to Suri Sadar Hospital and on the way he breathed his last. After the incident police came to the spot. In course of cross-examination he has admitted that he is also one of the accused in a case, which was instituted by the appellant and others against him and that case is pending. He was also made an accused in other cases. He clearly stated that they are one of the co-sharers to the extent of a certain portion of the land of plot No. 1000. He also stated that it was the season of cultivation and they had been there. A dispute was raised by the convicts/appellant regarding ownership of 19 decimals of land of their plot. He also sustained injury during the course of altercation and mutual fighting. He also stated that it was the season of cultivation and they had been there. A dispute was raised by the convicts/appellant regarding ownership of 19 decimals of land of their plot. He also sustained injury during the course of altercation and mutual fighting. Other part of his evidence is in the form of denial. On scanning his evidence it is amply proved that he was at the scene of occurrence and that his father died due to hurling of bombs. 16. P.W. 8 has prepared the inquest report which is marked exhibited. 17. P.W. 9 is the Investigating Officer he has conducted the investigation. It appears from his evidence that he had visited the place of occurrence, prepared rough sketch map with index, seized remnants of bomb available in the place of occurrence, prepared seizure list, collected the inquest report, post mortem report and, thereafter, he has submitted charge-sheet. He has proved seizure list. On being asked, he has stated that Nasibuddin did not tell them that Patal threw the bomb upon said Selim. In course of cross-examination that Nasibuddin (P.W. 2) had stated that he told police that the appellant threw a bomb towards Selim. He also added that on hearing the hurling of bomb, he went to place of occurrence and found Selim was lying in the field having some injuries. Referring this part of evidence learned Counsel appearing on behalf of the appellant contended that what has not been stated to the Investigating Officer that cannot be taken into consideration by the Court. I do not like to agree with him on the point that there was no evidence whether the Investigating Officer has put particular question to the P.W. 2 in this regard. If such question was not put to the Investigating Officer, then clarification cannot come out. That Nasibuddin is a rustic person and does not have any knowledge as to what should be said to the police or not. The same logic will be applied in case of evidence of Alizan Paswan, who according to the Investigating Officer had not stated to him. It cannot be treated as an omission on the ground that these witnesses had narrated the principal facts to the Investigating Officer, who in turn had filed charge-sheet. Therefore, this type of minor omissions and contradictions cannot be given an undue importance. 18. It cannot be treated as an omission on the ground that these witnesses had narrated the principal facts to the Investigating Officer, who in turn had filed charge-sheet. Therefore, this type of minor omissions and contradictions cannot be given an undue importance. 18. At the time of argument learned Counsel appearing on behalf of the defence categorically stated that sad demise of the victim was due to other reason. He contended that the victim and his fellowmen had enough contribution to the incident. They were the aggressors and this victim’s men threw bomb upon the convict/appellant and as a result the appellant sustained injury. He further stated that there is no explanation in this regard from the prosecution side. But I am in respectful disagreement with him on the ground that it appears from the evidence led by the prosecution that the appellant after charging one bomb upon the victim wanted to throw another bomb and in the meantime that another bomb fell on the earth and as a result there was an explosion and, therefore, the convict is the architect of his own misfortune. 19. On a close scrutiny of the evidence it appears that the victim mainly sustained injury at the back side of his body and profused bleeding was there, so far as post mortem report and inquest report are concerned. This goes to show that the bomb was hurled upon the victim from his back side. If the victim threw bomb upon the convict/appellant, in that case appellant could have sustained injury in his face or chest but that was not happened. On the contrary, if there was mutual fight between the victims and the appellant, in that case bomb would have hit the victim’s front side and not at the back side. On the contrary, it appears to me that while the convict/appellant chased them by throwing bomb to victim, he wanted take to his heels and so the bomb was blasted on his back side. So question of encounter does not arise. After receiving such injury, it is inconceivable that the victim himself threw another bomb upon the present appellant. This apart, inquest report speaks that the victim was having a hydrosil. It also appears from the evidence that it was a rainy season and cultivation process was going on. Naturally it can be expected that due to wet mud it was sleepery. This apart, inquest report speaks that the victim was having a hydrosil. It also appears from the evidence that it was a rainy season and cultivation process was going on. Naturally it can be expected that due to wet mud it was sleepery. A person having bomb in his hand cannot normally run easily through the muddy land and that too having a hydrosil in his body. Therefore, story of mutual fight does not arise at all. 20. In course of examination under Section 313 Code of Criminal the convict/appellant has responded evasively and inconvincingly in respect of the incriminating materials appeared against him. 21. If I consider the evidence in its true spirit in that case it will be seen that the offence is amply proved and the finding of the learned Court below does not warrant any interference. Accordingly, the impugned judgment and order of conviction is upheld. The instant appeal is dismissed. 22. Let a copy of this judgment and LCR be sent to the learned Court below for information and taking necessary action and to proceed with the case in accordance with law. 23. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.