w w w . L a w y e r S e r v i c e s . i n

Gour Seal v/s The State of West Bengal

    Criminal Appeal No. 365 of 1997 with Criminal Appeal No.369 of 1997

    Decided On, 29 June 2010

    At, High Court of Judicature at Calcutta


    For the Appellant: Ahindra Kumar Adhya, Advocate. For the State: Asoke Mukherjee, Sandipan Ganguly, Advocates.

Judgment Text

Sailendra Prasad Talukdar, J.

This appeal is directed against the judgment and order dated 5th December, 1997 passed by the learned First Court of Additional Sessions Judge, Hawrah. The learned Trial Court by the said judgment held six accused persons guilty of the offences under section 148 and section 302 of the Indian Penal Code. They were accordingly sentenced to suffer imprisonment for life for the offence under section 302 of Indian Penal Code. Each of them was also directed to pay fine of Rs.1000/-, in default, to suffer imprisonment for a further period of one year. The convicts were sentenced to suffer rigorous imprisonment for two years for the offence under section 148 of Indian Penal Code. The learned Trial Court directed that such sentences, however, are to run concurrently.

Being aggrieved by the said judgment and order dated 05.12.1997, the appellants approached this Court by filing this appeal. Mr.Adhya, appearing as learned counsel for the present appellant, sought to assail the impugned judgment on the ground that the same suffers from misappreciation of evidence.

The backdrop of the case may briefly be stated as follows:-

One Hushenara Khatoon made a statement before the Police Officer on 27.04.1995. Such recorded statement was treated as First Information Report in the case. She alleged that on that day at about 1.30 pm when she was in the courtyard after taking bath she found Prasanta Kundu and few others abusing one Nur Islam Mallick. Those persons thereafter started assaulting him. They were resisted. Accused Prasanta Kundu, Bhaja entered into the house by climbing upon the jack fruit tree at the back side of the house. Other accused persons namely Biswa Monol, Gour Seal, Sk.Yunus and Sk.Sajahan entered into the house by climbing upon the coconut tree standing in front of the house. Sk.Jamshed and his wife Tehran Bibi were inside. The accused persons then struck them to death with the weapons in their hands. In response to the hue and cry raised by the victims, many people of the locality assembled near the resident of the Jamshed. When the accused persons were leaving, the wife of

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ader Mallick, namely Jabeda Begum, caught hold of the blood stained ?Khatan? (large knife) which was with Bhuto Galui. Those persons left the place thereafter. Many persons entered into the house and found that victims, namely Sk.Jamshed and his wife Tahran Bibi, were lying dead in front of the rear entrance i.e. the southern gate of their house with deep bleeding injuries on their heads. On the basis of such statement, Amta P.S. case No.39 for the offences under sections 302/34 of IPC was started on 27.04.1995. The Police Officer held inquest and prepared the report. Postmortem examination was held and according to the Doctor who conducted such postmortem examination, the death of both the victims was due to head injury, ante mortem and homicidal in nature. After completion of investigation, the police authorities submitted the charge sheet. Thereafter, the case was committed to the learned Court of Sessions and from there, it was referred to the learned Trial Court. Learned Trial Court framed charge under section 148 and under section 149/302 of Indian Penal Code against as many as seven accused persons. The accused persons pleaded not guilty and claimed to be tried when such charges were read over and explained to them. Defence case, as it appears from the trend of cross-examination and the statements made during examination under section 313 of Cr.P.C., is the denial of the prosecution allegation and the plea of innocence.It is the cardinal principle that it is for the prosecution to establish the guilt of an accused person beyond any reasonable doubt. The prosecution in order to discharge this burden in this case examined as many as 13 witnesses. Of them, PW-1 is the defacto complainant who in his evidence-in-chief stated that Jamshed was murdered on 27.4.1995 at about 1.00/1.30 pm in his house. PW-1 was in the courtyard after taking bath. She could hear cries coming from the house of Jamshed and Noor Islam Mallick. She rushed to the said spot and found the accused persons were having a quarrel with Noor Island Mallick. They assaulted him. She further deposed that when such accused persons had been to the house of Jamshed , she went inside the house and bolted the door from inside. She specifically stated that Gaur Seal, Sk.Sajahan, Sk.Yunus and Biswanath Mondal came to the roof of the house of Jamshed. They assaulted Jamshed and his wife by using dagger, knife, bricks etc. They opened the door and the remaining three accused persons went inside. One of the accused persons was murdered subsequently. PW-1 claimed that the Police arrived at the spot and she narrated the incident. As she followed the accused persons, Bhuto Golui threatened her with a ?Khatan? of dire consequences. Her statement was duly recorded by police and she identified her signature in it, marked exhibit 1/1. In cross examination she admitted that there are about 30 houses in and around house of Jamshed within a distance of two minutes walk. She mentioned the names of those persons who were having their houses within two minutes of walk from the house of Jamshed. She further stated that relatives of victim of Noor Islam cried for help when they found Noor was being assaulted. According to her, about 15 persons assembled at that time. Oleda Begum, her mother Jabeda Begum, Alaya Begum and PW-1?s mother namely Rashida Begum were amongst the persons who assembled in the house of Noor Islam Mallick. She further deposed that the episode in the house of Noor Islam Malick continued for about 10/ 15 minutes and the accused persons thereafter went towards the house of Jamshed. In cross examination, PW-1 stated that Jamshed was a rich person in the locality. His house was surrounded by a boundary wall of 8 ft height. She stated that there were two gates in the house, of which one of the gates used to remain open all the time and it was closed when the incident took place. She further stated that the family members who assembled in the house of Noor Islam Mallick were already standing on the bank of the tank near the house of the Jamshed. Police arrived at 2/2.30 PM. PW-1 did not know as to who informed the police. Police came to the place again on the next day. PW-1 did not deny that Jamshed was supporter of Congress. The accused persons belonged to the political party CPI(M). PW-1 deposed that she stated before the police in the complaint as well as in the statement recorded under section 161 of Cr.P.C that four persons came to the roof of Jamshed by climbing the coconut tree. They opened the door in the courtyard and other three accused persons approached the same. She denied that the case was falsely cooked up in order to protect Jamshed and his wife who were impleaded in a case of murder. PW-2, who had been sought to be described as a vital witness, in his evidence in chief clearly stated that he did not know anything concerning the accused persons in respect of murder of Jamshed. He was declared hostile by the prosecution. PW-3 did not lend any support to the prosecution case either.PW-4 just stated that the accused persons murdered Jamshed and his wife.PW-5 introduced himself as the son-in-law of Jamshed, i.e. victim.He stated that his father-in-law and mother-in-law were murdered by the accused persons on 27.4.1995 at about 1.30/2.00 pm. In chief, PW-5 stated that after reaching home on 27.4.1995, he could find many persons crying and he found Jamshed and his wife lying dead with bleeding injuries. In response to his query, Hosenera,Jabeda and Tohora Bibi gave the names of the miscreants who murdered Jamshed and his wife. While giving the names of the accused person, PW-5 stated that he was told that Bhuto Golui had a Katan and Gour seal had a sword with them. The other accused persons had revolver, pistol etc. Identifying the accused persons on dock, PW-5 stated that one of the accused persons had expired. From his evidence in cross examination it appears that his two sons, Sirajul and Nazrul were accused in a case of alleged murder of the son of Biswanath Mondal.PW-6 just stated that Jamshed and his wife were murdered about two years prior to her deposing in court.PW-7 in his evidence in chief stated that his house is near that of the victim Jamshed. On the relevant day at about 1/1.30 pm, he could hear cries from the house of Jamshed. He rushed to the spot and found Hasenara, Jabeda and Tohara were crying. Jabeda, further, told him that she was threatened by Bhuto with a Katan and he also found that Jamshed and his wife were lying dead with bleeding injuries.PW-8 was again declared hostile by the prosecution since he stated that Jamshed and his wife known to her but he did not know how it was done. He, however, found Jamshed and his wife were lying dead with bleeding injuries. PW-8 appears to have stood the test cross examination well. He also stated that the boundary wall of the house of Jamshed would be 8/10 ft. high.PW-9 identified the accused persons as the persons who had murdered Jamshed and his wife. According to him, he had witnessed the actual murder. He further stated that Bhuto had a Katan, Gour had a bhojali, Bhaja had a revolver, whereas other persons were equipped with dagger, katari etc. Before he could reach the place of occurrence in response to the cries, he found that the accused persons fleeing away after committing murder of the two victims. PW-9 claimed that when he reached the place of occurrence, there were many persons over there and of them, Badal was one. There were about eight female persons at that time. PW-9 denied that all of them entered into the house of Jamshed and simultaneously, he found Jamshed and wife were lying dead.PW-10 was the Doctor who on 28.4.1995 held post mortem examination over the dead body of the two victims. In his evidence in chief, he described in detail as to the nature of the injuries as well as their extent. According to him, death of each of the victims was due to the effect of the injuries as described by him which were ante mortem and homicidal in nature.In answer to the question put before him by the learned counsel for the accused Sk.Sajahan and three others, the said doctor said that if all the seven persons took part in the assault with sharp cutting weapons, more injuries were expected. He further stated that if a person is assaulted at random by all the seven miscreants, injuries over the persons were expected.PW-11 was just tendered by the prosecution.PW-12 is the police officer who took investigation of the case being so asked by the O.C of the concerned police station. He identified the formal FIR prepared by A.Chakrabotry of Amta P.S since he was conversant with his handwriting. The oral statement of Hosenera Khatun was recorded by then the O.C., Prabir Das. He identified his hand writing as well and being proved by him such recorded statement was marked exhibit-1. The endorsement was marked exhibit 1/2 being proved by PW-12. In course of investigation, he visited the place of occurrence and examined available witnesses. He prepared rough sketch map with index in regard to the place of occurrence and the same being proved by him was marked exhibit -5. The dead bodies of the two victims were sent for postmortem examination through constable No.2976, Madan Roy. The challan, being proved by him, had been marked exhibit-6. He referred to the various items which were seized by him under seizure list at the place of occurrence. The blood samples of the two victims were collected under seizure list and the same had been marked as exhibit-8. He held inquest over the dead body and being proved by him, such inquest report had been marked exhibit-9. Samples of blood so collected were sent for chemical examination, vide challan, marked exhibit-10. No report was, however, received from the expert before submission of charge sheet. After completion of investigation, he submitted charge sheet. Referring to the statement of Noor Islam Mallick, PW-12 stated that the said witness told him that on reaching there he found Jamshed and his wife lying with bleeding injuries. PW-12 further claimed that the said witness told him that the accused persons were trying to kill Jamshed for a long period. He then stated that Jabeda Begum told him that he caught hold of Bhuto while the accused persons were fleeing away after committing murder of Jamshed and his wife. She further stated that she was threatened by Bhuto who was having a blood stained Katan with him. The said witness stated that he examined Begam, who however, did not state that Bhuto had a Katan in his hand She, however stated that he had a sharp cutting weapon. PW-12 then deposed that one Pachu Mallick did not state before him that he saw the accused person fleeing away from the place of occurrence. Teharan Bibi stated before him that she came to know about the incident from para people and did not claim that she found the accused persons murdering Jamshed and his wife and thereafter, fleeing away.Evidence of PW-13, who is another police officer, is rather formal in nature. In cross-examination, he deposed that Anil Chakraborty did not state that four accused persons came to the roof of Jamshed by climbing coconut tree or that she went inside the room of Jamshed and bolted the same from inside or that Bhuto threatened Jabada with Katan. This is all about the evidence on record. The accused persons were examined under section 313 of Cr.P.C. There is nothing worth mentioning except that all of them pleaded innocence. Defence did not adduce any evidence in its support. Mr.Adhya appearing as learned counsel for the appellants referred to the impugned F.I.R. in the criminal case. He submitted that the object of insisting upon lodging the report to the police in respect of the commission of an offence is to obtain early information regarding the circumstances in which crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye witness present at the scene of occurrence. He referred to the decision of the Apex Court in the case between Thulia Kali ?vs- The State of Tamil Nadu reported in 1973 SC 501 in this context. Delay quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only get bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the F.I.R should be satisfactorily explained. Referring to the decision of the Apex Court in the case between Hallu and others ?vs- State of Madhya Pradesh reported in AIR 1974 SC 1936, it was submitted that there is no scope, nor any rational justification, to assume any eye witness as implicitly reliable. It was then submitted by Mr.Adhya that omission to important contradiction in prosecution story can be viewed lightly. He sought to derive support from the decision in the case between B.Mallaiah and State of A.P. reported in 1980 Cri.L.J, 914. It was further submitted by Mr.Adhya that delay in recording the statements of material witnesses casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story. He referred to the decision in the case between Ganesh Bhavan Patel and another ?vs- State of Maharashtra reported in 1979 SC 51 in this context. While assailing the manner of appreciation of the evidence by the Trial Court, it was submitted on behalf of the appellant that judgment should not show complete negation of presumption of innocence of the accused. There is no presumption in law of absolute truthfulness of prosecution witnesses. It is the duty of the court to weigh the probability of prosecution evidence ( Ref.:-Raj Kishore Rabidas ?vs- The State, reported in 1969 Cal 321). An analysis of the evidence on record in the backdrop of the above said legal position appears to be necessary.Learned Trial Court laid emphasis on the testimony of PW-1 who is the defacto complainant and who categorically claimed to be an eye witness in the case. It appears that the statement of the defacto complainant was recorded within a few hours of the alleged occurrence. In the said recorded statement, which was treated as F.I.R, she spoke about the accused person abusing one Noor Islam Mallick in filthy language. She also referred to the resistance offered. Thereafter, two of them entered into the house of Jamshed by climbing up a jack fruit tree on the backside/southern corner of the said house. She claimed that four others climbed up the coconut tree in front side and entered into the said house. They, thereafter, struck the victims with different weapons and the victims succumbed to the injuries caused thereby.The victims raised hue and cry and in response to the same, the local people gathered near the house of the victim Jamshed. Jabada Begaum, a neighbour caught hold of one Bhuto Golui who had blood stained knife with him. She claimed in the F.I.R that the criminal ran away in broad day light.As mentioned earlier, the learned Trial Court placed much reliance upon the evidence of PW-1. As it appears from the materials on record, both Noor Island Mallick and Jabeda Begum subsequently backed up. Both of them, while being examined as PW-2 and PW-3 respectively, were declared hostile by the prosecution. Clearly enough, PW-1 did not disclose earlier that she could witness the entire incident through the window of a room in the house of victim, Jamshed. It can not be denied that this by itself results in serious lapse in the prosecution evidence. Admittedly, PW-1 was close relative of the victims, since deceased. This by itself does not justify discarding her evidence or viewing it with suspicion. But this certainty demands an extremely cautious approach on the part of the court. In such background, the evidence deserves to be measured in coffee spoon. That some of accused persons went to the roof of the house of Jamshed by climbing up a coconut tree does not find mention in the recorded statement which indicates further lapse. On behalf of the appellant, it was categorically submitted that the case as made out in the F.I.R did not find any factual support from the evidence of any independent witness. So, learned Trial court accepting the said proposition observed :- ?It is true that so far the way of murder is concerned, the other witnesses did not say in details how they were murdered by the accused persons.? Learned Trial Court placing reliance upon evidence of PW-4, was of the view that the story of PW-1 that she saw the actual incident derived support from the evidence of PW-4. But PW-4 admitted in cross-examination that when she reached the place of occurrence, the victims were lying dead with bleeding injuries. Learned counsel for the appellants further submitted that much of the evidence of PW-6 in court does not find mention in her statement recorded under section 161 of Cr.P.C. Mere fact that the two victims were found lying dead with bleeding injuries does not and can not lead to any presumption of murder. It far less indicates the accused persons with charge under section 302 of IPC. Assuming that those two persons were murdered, it is for the prosecution to answer as to how such incident exactly took place. It is for the prosecution to establish to the satisfaction of the judicial conscience of the court that all such accused persons committed such crime at the place, time and in the manner as claimed by it. It is for the prosecution to place before the court that such murder could not have been committed by any one else, other then the present accused persons. No doubt, the case relates to an extremely tragic incident in which two persons were killed. PW-1, as the defacto complainant, spoke much about the involvement of the accused persons in the commission of murder. Such evidence undoubtedly sought to derive some support and strength from here and there. But all such efforts could not rule out the possibility of any doubt. Even after taking into consideration the entire evidence on record, there remains confusion and controversy. In our view, the accused persons under such circumstances can not be denied the benefit of doubt. There are inherent inconsistencies in the evidences of record. Evidence also does not appear to be free from contradiction.There are latent wounds and inherent improbabilities. All these aspects combine so as to raise doubt and the accused are certainly entitled to get benefit of doubt.Accordingly, we find it difficult to brush aside the grievances as ventilated on behalf of the appellants. The judgment and order under challenge can not be sustained. The appeal cases being C.R.A. No. 365 of 1997 and C.R.A. No. 369 of 1997 succeed. The judgment and order dated 05.12.1997 passed by the learned First Court of Additional Sessions Judge, Howrah accordingly is set aside. The appellants be held not guilty of the offences under section 148 and section 302 of the Indian Penal Code. They be acquitted accordingly and be set free at once. They be released from the respective bail bonds. Criminal department is directed to supply certified copy of this order on priority basis. Lower court records as well as copy of the judgment be sent back to the learned Trial Court immediately for information and necessary action. I agree.

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