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2016 DIGILAW 821 (CAL)

Munkir Sk. v. State of West Bengal

2016-10-05

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Debasish Kar Gupta, J. 1. This appeal is directed against judgment and order dated September 16, 2006 and sentence dated September 19, 2006 passed by the learned Additional Sessions Judge, Fast Track 2nd Court, Rampurhat, District-Birbhum in Sessions Trial No. 13 of 2003 arising out of Sessions Case No. 38 of 2000 convicting the appellants for commission of offence punishable under Sections 302/34 and 201/34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) as also under Section 27 of the Arms Act read with Section 34 of the I.P.C. 2. On September 23, 1998 one Ekamuddin Sk. (deceased person), son of late Taiyab Sk. of village-Bankura, Police Station-Maheshpur, District-Birbhum was returning back to his home from Pakur after completion of his work. He got down from train at Murarai station. Then he took his bicycle from the Tailor’s shop “Samrat Tailor”. He kept his bicycle at the house of a known person situated at Village-Bhushana. He started the journey on foot through a narrow lane leading towards his home. At that point of time his elder brother Niyamat Sk. (PW 2) came to receive him. He was moving down the above lane keeping his aforesaid brother (the deceased person) behind him. He looked at his back hearing a noise. He found that the appellants had attacked the deceased person. Appellant Jenhar Sk. caught hold of the hands of the deceased and appellant Munkir Sk. opened fire from his firearm aiming at the deceased. Out of fear, the PW 2 started running towards his village. After informing the villagers of the above incident, he came back to the place of occurrence along with other villagers including PW 1 and PW 6. Though they found blood stain at the place of occurrence, the deceased person could not be found out by them. They went to the Murarai Police Station. After informing the above incident, they came back to the place of occurrence with police. Even then the deceased person could not be traced out. 3. On the next date, i.e. on September 24, 1998, PW 1, PW 2, PW 6 and others went to the place of occurrence once again. Following the mark of blood stain on the earth they reached to the bank of river “Paglanadi” and found the dead body of the deceased person. 4. 3. On the next date, i.e. on September 24, 1998, PW 1, PW 2, PW 6 and others went to the place of occurrence once again. Following the mark of blood stain on the earth they reached to the bank of river “Paglanadi” and found the dead body of the deceased person. 4. Immediately, PW 1 submitted a written complaint dated September 24, 1998 to the Officer-in-Charge, Murarai Police Station, Birbhum. After recording the above incident under G.D.E. No. 1010 dated September 24, 1998 at 11.15 hours, the Officer-in-Charge, Murarai Police Station, Birbhum, drew the formal FIR bearing Murarai P.S. Case No. 68/98 dated September 24, 1998 incorporating the names of the appellants therein for commission of offence punishable under Sections 302/201/34 of the I.P.C. and Section 25/27 of the Arms Act. PW 7 was engaged as Investigating Officer to investigate into the above case. 5. PW 7 went to the place of occurrence. He prepared the rough sketch map with index of the place of occurrence. He also prepared the inquest report dated September 24, 1998 over the dead body of the deceased person with reference to the above FIR. The history revealed from the preliminary investigation was also incorporated in the above inquest report. The PW 7 further seized wearing apparels of the deceased person (sky colour jeans pant and a belt fixed with it, one shirt and one Parko 1210 Pen) under seizure list. A bunch of paddy plant stained with mud and blood was also seized under seizure list. The dead body of the deceased person was forwarded to the Rampurhat Police Morgue through the PW 5 for post mortem examination. 6. Post mortem examination on the dead body of the deceased person was conduced by PW 4 on September 24, 1998 with reference to the U.D. Case No. 9/98 and Murarai P.S. Case No. 68/98, both dated September 24, 1998 and the post mortem report was prepared at 16.00 hours. According to the post mortem report, one bullet injury and multiple stab injuries were detected over the dead body. According to the above post mortem report rigor mortis was present on the dead body. According to the opinion of the PW 4, the cause of death was due to shock and hemorrhage arising out of the aforesaid injuries which were ante mortem and homicidal in nature. 7. According to the above post mortem report rigor mortis was present on the dead body. According to the opinion of the PW 4, the cause of death was due to shock and hemorrhage arising out of the aforesaid injuries which were ante mortem and homicidal in nature. 7. The statement of the eyewitness PW 2 was recorded by the PW 9 under Section 164 of the Cr.P.C. 8. Subsequently, the appellants surrendered before the police. 9. After completion of investigation, charge sheet bearing No. 56/99 dated July 21, 1999 was submitted by the PW 8 (the second I.O.) before the Court against the appellants for commission of offence under Sections 302/201/34 of the I.P.C. as also under Section 25 of the Arms Act. 10. Charge was framed against the appellants on May 19, 2003 for commission of offence punishable under Sections 302/201/34 of the I.P.C. and Section 25/27 of the Arms Act. 11. After considering the evidence of nine (9) prosecution witnesses and other documentary evidences as also the statement of the appellants recorded under Section 313 of Cr.P.C., the impugned judgment was passed by the learned trial Judge. 12. It is submitted by Mr. Kushal Kr. Mukherjee, learned amicus curiae, that a First Information Report was drawn on the date of occurrence i.e., on September 23, 1998 by the Officer-in-Charge, Murarai Police Station. The FIR bearing Murarai P.S. Case No. 68/98 dated September 24, 1998 was drawn at a later stage for false implication of the appellants which was not sustainable in law. 13. According to him, the learned trial Judge failed to take into consideration the major contradictions in between the evidence of the prosecution witnesses reaching the root of the prosecution case. 14. It is also submitted by him that the necessary witnesses, i.e., the Officer-in-Charge of Murarai Police Station and the owner of the land where the incident had been occurred were not produced before the Court for withholding the above necessary evidence to unearth the truth as also the false implication of the appellants. 15. According to him, the antecedents of the appellants could not have been taken into consideration in violation of provision of Section 54 of the Evidence Act to find the appellants guilty of commission of offence. 16. Reliance is placed by Mr. 15. According to him, the antecedents of the appellants could not have been taken into consideration in violation of provision of Section 54 of the Evidence Act to find the appellants guilty of commission of offence. 16. Reliance is placed by Mr. Mukherjee on the decisions of Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), reported in 2005 SCC (Cri) 1037 and Javed Masood & Another vs. State of Rajasthan, reported in (2012) 2 C Cr LR (SC) 44 in support of his above submissions. 17. On the other hand, it is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that the prosecution case was based upon the evidence of eyewitness PW 2. His evidence with regard to the bullet injury sustained by the deceased person was corroborated with the post mortem report of the autopsy surgeon, amongst other injuries. It is submitted by him that the inquest report was prepared on the next date of occurrence of the incident. It is also submitted by him that the FIR contained the names of the appellants. The inquest report was prepared with reference to the FIR under reference containing the names of the appellants on the basis of the history recorded after preliminary investigation by the PW 7. According to him, the evidence of the eyewitness PW 2 was further corroborated by the post mortem report of the autopsy surgeon which was prepared with reference to the above FIR. Therefore, the impugned judgment was based on evidence of the eyewitness PW 2, amongst other oral and documentary evidences. It is also submitted by him that the motive of the appellants to kill the deceased person was also surfaced from the evidence of PW 1, the uncle of the deceased person. According to Mr. Roy Chowdhury, there was an attempt to destroy the evidence of commission of offence by making an attempt to drop the dead body in the water of river “Paglanadi”. So, the non-recovery of weapon of offence from the appellants need not require further explanation. 18. According to Mr. Roy Chowdhury, there was no impropriety in the decision making process of the learned trial Judge to find out the appellants guilty of commission of offence. 19. Reliance is placed by Mr. So, the non-recovery of weapon of offence from the appellants need not require further explanation. 18. According to Mr. Roy Chowdhury, there was no impropriety in the decision making process of the learned trial Judge to find out the appellants guilty of commission of offence. 19. Reliance is placed by Mr. Roy Chowdhury on the decisions of Daya Ram & Others vs. State of Haryana, reported in 2015 AIR (SCW) 3905 and Sanjeev Kumar Gupta vs. State of U.P. (Now State of Uttarakhand), reported in 2015 AIR (SCW) 3151 in support of his above submissions. 20. Having heard the Learned council appearing for the rival parties as also after considering the evidence on record, the contentions of the appellants are considered as follows: (A) False implication of the appellants in the case in view of alleged drawing of two FIR: It was held by the Apex Court in Pandurang Chandrakant Mhathre vs. State of Maharashtra, reported in (2009) 10 SCC 773 , that when a police officer had no other alternative but to leave the police station on receipt of an information relating to commission of cognizable offence to give first priority to control the incident which had been occurring at the place of occurrence simply after diarizing gist of such information, the same cannot be treated to be “first information report” under section 154 (1) of Cr.P.C. which must contain some essential and detailed incident. The relevant portion of the above decision is quoted below:- “38. It is fairly well settled that first information report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilised for contradicting or discrediting the testimony of other witnesses. In other words, the first information report cannot be used with regard to the testimony of other witnesses who depose in respect of incident. It is equally well settled that the earliest information in regard to commission of a cognizable offence is to be treated as the first information report. It sets the criminal law in motion and the investigation commences on that basis. Although first information report is not expected to be encyclopaedia of events, but an information to the police to be “first information report” under Section 154 (1) must contain some essential and relevant details of the incident. It sets the criminal law in motion and the investigation commences on that basis. Although first information report is not expected to be encyclopaedia of events, but an information to the police to be “first information report” under Section 154 (1) must contain some essential and relevant details of the incident. A cryptic information about commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report.” From the evidence on record it is revealed that the PW 1 went to the Murari police station on September 23, 1998, in the night along with PW1, PW6 and other villagers immediately after the incident. At that time the deceased person was missing. The Officer-in-charge, Murari police station, noted down the statement of the PW2 and sent a police team to the place of occurrence to trace out the deceased person. The above recording of statement cannot be equated with FIR by any stretch of imagination. From the other evidence on record it is revealed the PW1 submitted a written complaint to the officer-in-charge, Murari police station on September 24, 1998, at 11.10 hours containing the names of the appellants. On the basis of the same, the formal FIR bearing Murari P.S. Case No. 68/98 was drawn after making a GDE bearing no. 1010. Further, we find that the inquest report was prepared with reference to the above FIR containing the names of the appellants. The post mortem report was also prepared with reference to the above FIR. So, we do not find substance in the above contention of the appellants. In view of the above distinguishable facts and circumstances we are of the opinion that the decisions of Mukhtiar Ahamed Ansari (supra) and Javed Masood & Another (supra) do not help the appellants in any way. (B) Major contradictions in the evidence of prosecution witnesses touching the rout of the prosecution case: In State of U.P. Vs. In view of the above distinguishable facts and circumstances we are of the opinion that the decisions of Mukhtiar Ahamed Ansari (supra) and Javed Masood & Another (supra) do not help the appellants in any way. (B) Major contradictions in the evidence of prosecution witnesses touching the rout of the prosecution case: In State of U.P. Vs. Krishna Master, reported in (2010) 12 SCC 324 , it was observed by the Apex Curt that minor discrepancies of trivial nature not touching the core of the case, hypertechnical approach by taking sentences torn out of the context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit the rejection of the evidence as a whole. The relevant portion of the above decision quoted below:- “15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. 16…….. 17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. It is not un-often that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.” It is alleged by the appellants that according to the evidence of PW1, he got the information of the commission of offence under reference when the PW 2 was narrating the incident to the villagers. But according to the evidence of PW2, he had informed the incident to the PW6 first and then he informed the PW1of the incident. We are of the opinion that the above discrepancy was minor in nature not touching the root of the prosecution case. So, the above contention does not help the appellants. (C) Withholding of the evidence of the officer-in-charge, Murari police station and the owner of the land where the incident occur: It is the time honoured rule that the law of evidence does not require a particular number of witnesses to be examined to prove a given fact. Where the Court finds that the testimony of witnesses is neither wholly reliable nor wholly unreliable in a given set of facts, it may seek corroboration but disbelieving of reliable testimony on the ground that others have not been examined is to do complete injustice to the prosecution. Reference may be made to the decision of State of Uttar Pradesh vs. Krishna Master (supra) and the relevant portion of the above judgment is quoted below:- “47. It is a well-known principle of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The courts are concerned with the merit and the statement of a particular witness and not at all concerned with the number of witnesses examined by the prosecution. The time-honoured rule of appreciating evidence is that it has to be weighed and not counted. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, where the court finds that the testimony of the solitary witness is neither wholly reliable nor wholly unreliable, it may, in a given set of facts, seek corroboration, but to disbelieve reliable testimony of a solitary witness on the ground that others have not been examined is to do complete injustice to the prosecution.” Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require interference on the above ground in view of the settled proposition of law as discussed hereinabove. (D) Violation of the provisions of Section 54 of the Indian Evidence Act, in taking into consideration the past history of the appellants to find them guilty of commission of offence: Considering the evidence on record, we find that the PW 7 made a statement in course of his examination-in-chief with regard to the antecedents of the appellants. However, after thorough consideration of the impugned judgment, we do not find that those antecedents of the appellants were considered by the learned trial Judge for finding the appellants guilty of commission of offence. So, alleged violation of the provision of section 54 of the Indian Evidence Act, is a begging question on the part of the appellants. 21. In view of the discussion and observation made hereinabove, this appeal is dismissed. 22. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously. I agree – Debasish Kar Gupta and Md. Mumtaz Khan, JJ.