Arun Kumar Bhattacharya, J.
1. The hearing stems from quadruple appeals being C.R.A. 321 of 2000, C.R.A. 328 of 2000 and C.R.A. 334 of 2000 preferred by accused Bhabani Shaw, Ramlal Chowdhury and Ramraj Shaw respectively against the judgment and order of conviction and sentence passed by the Id. Additional Sessions Judge, 2nd Court, Howrah on 31.08.2000 and G.A. 13 of 2001 preferred by the State of West Bengal against the order of acquittal of accused Bhim Shaw passed by the said Court on 30.08.2000.
2. The miniaturised version of the prosecution case is that on 20.02.1995 at about 1.10 p.m. when Bindeswari Prasad Shaw @ Bindeswari shaw on his way to meet Advocate Buddhadev Ghosal at Howrah Sadar Court compound reached near the sherista of Mohrar Joydev Swain (P.W. 1), Some person/persons poured aside on his head from behind, for which he sat down there due to severe pain and the miscreants fled away after the incident. The lawyers removed him immediately to Howrah Hospital for treatment. He has a dispute for a long time with Ramraj Shaw, Mahabir Shaw, Bhim Shaw, Nebulal Shaw and Chedi Chowdhury of 40/2, Bhairab Dutta Lane, Uriyapra, P.S. Golabari for which he lodged a complaint with the P.S. He firmly believed that those persons hatched a plan and poured acid on his head and body in order to kill him.
3. On the basis of the above statement of the victim recorded by S.I. Tapas Chakraborty (P.W. 40) at Howrah Hospital and treated as F.I.R. Howrah P.S. Case No. 47/ 95 dated 20.02.95 was started and after completion of investigation, charge-Shet Under Sections 120B/302/34/307/34 IPC was submitted against the accused persons viz. nebulal Shaw @ Sahuji, Ramlal Chowdhury Chedi, Bhabani Shaw, Ramraj Shaw and Bhim Shaw. Hence, all the above accused persons were charged Under Sections 120B, 302/34 and 34 IPC.
4. On account of death of accused Nebulal Shaw, the case was filed against him on June 27, 2000.
5. The defence case as suggested to P.Ws. and as contended by the accused persons during their examination u/s 313 Code of Criminal Procedure is that a sum of Rs. 1,75,000/- was not paid by complainant party to Ramlal Chowdhury towards advance for purchase of a flat at 75/1, Sanatan Mistri Lane. There was no incident of continuous threat and torture by the accused persons upon the victim's family or assembly of the accused persons in June, 1991 in front of the house of the victim Bindeswari Prasad Shaw and breaking of the western portion of the building at 10, Sanatan Mistri Lane. On receipt of the information of injuries Sustained by the victim, the story of the present case was manufactured by the members of the victim's family in collusion with the top bosses of the ruling party. Raj Debi and sitaram Sharma are got up witnesses. The accused persons have been falsely implicated in this case.
6. Forty-one witnesses were examined on behalf of the defence and after considering the facts, circumstances and materials on record, the Id. Court below acquitted accused Bhim Shaw of the charges, but found accused Ramlal Chowdhury, Ramraj Shaw and Bhabani Shaw guilty u/s 120B and 302/34 IPC, convicted them thereunder and sentenced them to suffer imprisonment for life and to pay fine of Rs. 5000/- i.d. to R.I. for one year each u/s 302/34 I.P.C. but no separate sentence u/s 120B I.P.C. was passed.
7. Being aggrieved by and dissatisfied with the above order of conviction and sentence, the said accused persons have preferred the present appeals, while the State has preferred appeal being G.A. No. 13 of 2001 against the order of acquittal of accused B him Shaw.
8. All that now requires to be considered is whether the Id. Court below was justified in passing the aforesaid order of conviction and sentence of three accused persons and acquittal of accused Bhim Shaw.
9. The vital witnesses in this case are P.Ws. 5, 13 to 17, 19 to 23, 27, 29 to 34, 37, 39 to 41. Out of the forty one witnesses, P.Ws. 1 to 4, 9, 11 and 13 were declared hostile by the prosecution.
10. P.W. 1 Joydeb Swain, Advocate's clerk, having his sherista in front of S.D.O's election godown, when was busy in writing a petition on the date of incident on February 20, 1995 at about 1.10 p.m., Dipak Banerjee (P.W. 2), another advocate's clerk, who was sitting before him and was busy in writing a petition stated that something had fallen on his hand. He asked him to wash out the said thing. Two children, aged about four years and six years, who were playing on his left side, raised a hue and cry and he found a person, who was known to him by face as he saw him occasionally to come to Court, proceeding on foot in front of him and vapour like something was coming out from his head and the colour of his hair turned bluish. The said person should for saving him, otherwise he would be killed and then he put down his head in the drain water. Lawyers and others assembled there and started to pour water on his head. At that time he found the said two children Kanchan Routh and Usha Routh, daughters of a sweeper, as he came to learn later, who were also injured by decide were crying loudly and he took them to Howrah General Hospital for their admission. He requested Dipak Banerjee (P.W. 2), who also sustained decide injuries on both of his palms as well as, left thigh, to go to hospital for his medical treatment. On the same date the police came and seized certain articles under a Section list which was signed by him as a witness. P.W. 2 Dipak Kumar Banerjee, another Advocate's clerk, having his sherista at a distance of about 4 ft. from the P.O., on hearing a sound at about 1.10/1.15 p.m. on 20, February found some liquid substance fell on his hand near the wrist and considering the same to be water he rubbed his hand. At that time he found a person from whose head vapour-like something was coming out, was shouting for help followed by his falling down in a drain near that place at a distance of about 5/6 fit. from his sherista. He himself was feeling burning pain on his hand, neck and the where a few drops fell. He also found two other female children shouting due to pain on account of burn injuries on their person. P.W. 1 ran to their rescue and when he informed him about his pain, P.W. 1 advised him to put down his hand in a bucket of water and to go to the hospital immediately. Accordingly, he went to hospital where he was admitted and he left the hospital on his own risk on 21.02.1995 as no bed was provided to him and the atmosphere of the hospital was very dirty and that he was given accommodation on the floor in between two beds. P.W. 3 Kamal Krishna Banerjee, Advocate, while sitting at his sherista at about 1/1.20 p.m. on 20.02.95 and one Kashi Nath Bera (P.W. 5), typist was writing a schedule of an agreement, he suddenly heard a sound of falling of a polythene jar with something and found a person, who had a file in his hand, was rubbing his head and trying to stand erect and being failure he was trying to catch hold of him. On being afraid of pain like him he avoided and suggested the said Kashi Nath Bera to pour water on his head as there were, injuries. The injured person then tried to suck water from the drain. He noticed concentrated smoke on vapour his forehead and his hairs also turned to ashes followed by his falling down on account of pain. Many persons assembled and poured water on his head and body and took him to hospital in a stretcher. Subsequently he came to learn about sustaining burn injuries of two other children and a lawyr's clerk. On reading newspaper he came to learn that the said person who received some injuries was Bindeswari and he expired. P.W. 4 Tapan Kumar Mukherjee, Advocate, who was busy in the Munsif Court at about 1.00 p.m., on being informed by one shital Pathak about throwing of acid in his sherista, came to his place and learnt that his clerk Dipak Banerjee (P.W. 2) was taken to hospital. He went to Howrah General Hospital, found Dipak as well as Shankar Bachar with acid injuries and they put their hands in a water bucket He returned to the P.O. and on coming to learn that acid was thrown upon a man who with serious injuries on his person was removed to hospital, he again went to hospital, found the burnt body of the person with acid and his hands and feet tied with rope with a cot. Police came to hospital and seized the wearing apparels of Dipak under a Section list in his presence. The wearing apparels of the said person with serious injuries were also seized by the police. That Shankar Bachar received decide injuries, as deposed by him, does not find place in the testimony of any other witness. P.W. 9 Badraddya Molla, Advocate, who was busy in the Court of Munsif, on being informed by a client of Tapan Mukherjee (P.W. 4) about burning of his sherista, went there, found tables and chairs turned round, police personnel and others present and on coming to learn that his men were in the hospital, went to hospital. P.W. 10 Ajit Paul, Assistant Secretary of Criminal Bar Library, who came to Court at about 12.30/1.00 p.m., on hearing a shout of a person asking for help, went to the P.O. i.e. north of election godown of S.D.O. in between Motibabu's sherista and election godown and poured water on him with the help of a bucket. He took the injured to hospital and subsequently came to know his name as Bindeswri. P.W. 11 Tarun Majumder, typist, at about 1.10 p.m. heard about injury of a person on account of throwing of acid upon him as also injury of two children of a sweeper due to throwing of acid. P.W. 13 Bimal Kumar Sarkhel, Advocate's clerk immediately after the occurrence at about 1.10 p.m. went to the p.o. and found Bindeswari seriously injured. There was an attempt to murder him by throwing acid near election godown of S.D.O. and Old Criminal Court Library No. 2. Two female children and another Advocate's clerk were also injured due to throwing of acid. He was threatened over phone by some person that if he attends Court to depose in this case he would be killed.
11. P.W. 5 Kashi Nath Bera, typist, while busy in typing some papers as per direction of Advocate Kamal Krishna Banerjee (P.W. 3) heard a sound and found a person running in front of him. As Mr. Banerjee asked to pour water on his head, he brought
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water from the library and poured the same on him. Vapour-like something was coming out from his person. People surrounded and the said person was taken to hospital in a stretcher. P.W. 6 Buddhadeb Ghosal, President of Howrah Bar Association, last met Bindeswari who along with his brother was his client after the demise of their father, on the date of incident. Bindeswari met him from a distance and indicated by gesture that he would see him shortly, but he did not come back to see him. Later he came to know from others as well as from newspapers that acid was thrown on him inside the Court compound and he was taken to hospital. Bindeswari was a Chartered Accountant and two of his cases pending in the Court of Civil Judge (Jr. Div.), 4th court, Howrah relate to holding Nos. 10 and 5 Sanatan Mistri Lane, Howrah. The case relating to holding No. 5 was not a case by or against Bindeswari, but Bindeswari sent the case to him.
Regarding the other case, the same was proceeded against other persons by Thika Controller where Bindesari was impleaded as a party, in which Thika Controller won in the lower Court and appeal is pending in the Court of Id. Additional District Judge, 2nd Court. He unsuccessfully tried to persuade Bindeswar once or twice to settle the matter amicably with his adversaries, one of whom, as he could recollect, was Mahabir Shaw. P.W. 7 Tapan Ghosh, typist, on hearing a sound at about 1.30 p.m. saw a man shouting. "He was getting burning sensation" followed by his running and rolling on the ground and his removal to hospital in a stretcher. P.W. 8 Barun Das, typist, expressed his ignorance about the incident. P.W. 12 Basu Roychowdhury, Advocate, virtually deposed nothing relating to the incident.
12. According to the evidence of P.W. 14 Mundrika prasad Shaw, in 1990 he came to learn about purchase by Ramraj Shaw, Mahabir Shaw, Bhim Shaw and their two other brothers of the structure of premises No. 10, Sanatan Mistri Lane where after the demise of their father Jyotilal Shaw on 03, October, 1993 he along with his brothers Jagdish prasad Shaw (P.W. 16), Bindeswari, since deceased, Dr. satyanarayan Prasad Shaw, his cousin brothr Asrafi Prasad Shaw, mother (P.W. 18), Widow sister with her son, daughter etc. have been residing as tenants in the joint mess. All on a sudden, in one morning Ramraj, Mahabir and Bhim came to their house, called Bindeswari and on informing that they had purchased the said house from the previous landlord demanded payment of rent to them since that time, to which Bindeswari, who was a B.Com,. (Hons.), L.L.B. and Chartered Accountant, protested saying that the structure thika property and as such it cannot be sold to any person. He, However, told them for service of a legal notice upon him. On account of such protest the said three persons became furious, started abusing them and thereafter left the place. After a few days, accused Nebulal, Bhabani and Ramlal joined with them and occasionally they used to come to their house and threaten them which was intimated by them to Golabari P.S. as also S.P., Howrah and others. They had an intention to purchase a flat in premises No. 75/1, Sanatan Mistri Lane which belong to accused Ramlal and they advanced a sum of Rs. 1,75,000/- to Ramlal before starting of the said incident, but no flat was allotted to them nor the money advanced was refunded. On one morning in June, '91 he found accused Nebulal, Bhim, Ramraj, Ramlal, Bhabani and Mahadev standing by the west side of their house and the labourers engaged by them were breaking down walls from the western side of the structure where the tenants including themselves were living. On being frightened Bindeswari filed a proceeding u/s 144 Code of Criminal Procedure being M.P. 1052/1991 on 08.06.1991 and obtained an order in their favour. Since then the accused persons became more furious and they threatened them including Bindeswari with dire consequences. As they did not stop breaking down the old structure, Bindeswari filed a Title Suit being T.S. 123/1991 against the accused persons in the Court of Munsif, 4th Court, Howrah. On June 19, 1991 on receipt of an information that accused Ramlal was trying to divide the flat, into two parts which was booked by them for purchase and was trying to sell each part to others, Bindeswari sent a written complaint to Golabari P.S. On 20.06.91 he alone with other members of the family went to premises No. 75/1 Sanatan Mistri Lane for taking possession of the flat as they apprehended of sale of the said flat to some other person after dividing the same into two parts. Accused Nebulal, Ramraj, Mahabir, Bhim and Ramlal drove them out. They then approached for an amicable settlement and accordingly both parties sat together and made an agreement (Ext. 5) which was signed by him and his other three brothers Bindeswari, Jagdish and asaffi Prasad, Shaw as also by Ramlal and his berother Shyamlal and accused Nebulal signed the same as a witness. Even after the said agreement they did not get the flat nor the money advanced. After that incident accused Nebulal, Ramraj, Mahabir, Bhim, Ramlal and Bhabani occasionally visited their house and asked them to quit and vacate the premises but they failed to achieve success as they had already filed a suit in the Civil Court. They often used to express that unless they Quit the premises, they would drive them out forcibly and would take away articles and destroy and damage the structure. On September 11, 91 at about 9.00 p.m. accused Nebulal, Ramraj, Mahabir, Bhim, Ramlal and Bhabani along with others came to their house and took away articles and valuables from their house and broke down two of their rooms. They went to the P.S. and wanted to lodge a written information but, Golabari P.S. refused to accept the F.I.R., for which they had to wait there for about 1 hour. After midnight police came to their house and recorded a diary, when Bindeswari submitted a written information, on the basis of which G.R. Case No. 391/91 was started. As they became homeless they had to stay in the. P.S. throughout the night and on the next day, at the intervention of S.P., certain portion within the broken walls of the structures where they were residing was given to them for their shelter by accused Nebuial and Ramraj. On November 29, 1991 accused Ramraj along with 7/8 persons came to their place and threatened them once again for which another written complaint was lodged with Golabari P.S. by Bindeswari. On January 11, 92 at about 8.00 p.m. accused Nebulal, Ramraj, Ramlal and Bhabani came to their house, started abusing them followed by scolding his elder sister and mother that unless they quit the premises, same trouble as occurred on September 11, 1991 would be started. It was further expressed by accused Nebulal that unless they quit and vacate the premises, he would take such step which would cause much difficulty to them. They drafted a complaint and/or copies of the same to different police authorities. On being called by Golabari P.S. they attended there and found I.O.G. Mondal sitting with accused Nebulal, Mahabir and Bhabani who offered them a particular place in the structure for their future residence which was not accepted by Bindeswari as the place was smaller in size than that of their previous one. At this accused Nebulal and Bhabani became annoyed and they abused Bindeswari in Presence of I.O. G. Mondal and O.C. Bindeswari again sent a complaint addressed to I.C. Golabari, Howrah with copies to S.P., Howrah and others, despite these information to the P.S. either in writing or other wise, the P.S. did not take any measure against the accused persons. On March 21, 1991 at about 6.00 p.m. accused Ramraj entered into their premises with another person and threatened his mother and sister that even if the building is demolished, he would not leave Bindeswari alive and that they would also commit dacoity in their house as they had done on September 11, 1991. About an hour prior to that incident accused Mahabir came of their house and threatened that the common latrine might not be used by them, for which Bindeswari sent another complaint addressed to I.C., Goiabari P.S. and A.S.P., North Howrah. On January 9, 1993 accused Ramraj entered into the premises with 2/3 other persons at about 4.00 p.m. and directed Bindeswari to withdraw all the cases filed against them which the latter declined. Accused Bhim and Mahabir then tried to assault Bindeswari with fist and blows and they confined them for about 1 hour into the house. This matter was also informed to A.S.P. by a letter dated January 29, 1993. On July 04, 1993 Ramraj and his son came to their house at about 2.00 p.m. and threatened to ransack their house unless all the civil cases filed against them are withdrawn, for which Jagdish Prasad Shaw (P.W. 16) lodged a written complaint to Goiabari P.S. On August 21, 1993 Ramraj again came with two drunken persons and started to assault his brother Jagdish which was reported to the P.S. On the midnight of September, 7/8, 1994 when accused Nebulal, his son and grandson with 2/3 persons were assaulting a person in front of their house, they noticed it for which they were threatened to be assaulted like that man which was also reported by Jagdish to the P.S. Accused Ramraj with some other persons often gave them trouble in getting electric and telephone connections in their premises and they obtained a permission from S.D.O. u/s 144 Code of Criminal Procedure for getting electric and telephone connections. A complaint in this regard was also lodged before A.S.P. Bindeswari being a Chartered Accountant, was attached to certain firms and he used to look after the suits and cases. Buddhadeb Ghosal (P.W. 6) Kesto Babu were their lawyers in civil and criminal cases respectively. On February 20, 1995 Bindeswari with one person named Saheb Chawhan (P.W. 15) went to Howrah Court as a case relating to Premises No. 5 Sanatan Mistri Lane was to be heard on that date. On hearing the information at noon hours regarding injury of Bindeswari on account of throwing of acid upon him with intention to kill him inside the Howrah Court compound, he along with Jagdish and Asrafi came to Howrah Court and learnt that the persons of Nebulal had killed Bindeswari by pouring acid and Bindeswari was removed to Howrah General Hospital. Before going to hospital they were interrogated by police persons present there. At hospital they found Bindeswari altogether pale, sitting on a bed and an Executive Magistrate was recording his statement. The said Magistrate requested them to stand by his side at the time of said recording. Jagdish signed the said statement as a witness. On their query Bindeswari reperted that the persons of Nebulal had thrown acid on him and he requested them to take him from that hospital to some other better place as he apprehended that the persons of Nebulai would kill him ultimately. On execution of a risk bond by Jagdish they took charge of Bindeswari and removed him to Calcutta Medical Research Institute for his better treatment. On February 21, 1995 one police officer recorded the settlement of Bindeswari where he, Jadgish and Bindeswari signed. Bineswari ultimately expired on April 26, 1995. Inquest over the dead body of the victim was made on 27.4.95 and he and his elder brother Satyendra Prasad Shaw were witnesses to the same. He took three photographs of the victim on February 21, 1995 one police officer recorded the statement of Bindeswari where he, Jagdish and Bindeswari signed. Bindeswari ultimately expired on April 26, 1995 Inquest over the dead body of the victim was made on 27.4.95 and he and his elder brother Satyendra Prasad Shaw were witnesses to the same. He took three photographs of the victim on 21 February 21, 1995 while he was in the bed of C.M.R.I. Hospital. A few days before February, 20, 1995 he found Bindeswari passing his days be observing silence and on his query he expressed that the persons of Nebulal were making conspiracy against him and he apprehended that they would kill him. The above evidence in Material particulars is corroborated by P.W. 16 Jagdish Prasad Shaw, P.W. 17 deepak Kumar Srivastava, P.W. 22 Pritambar Majhi and P.W. 23 Joy Narayan Shaw. Though P.W. 18 Smt. Rama Debi, mother of the victim, had deposed in the same tune regarding torture and harassment to them by all the above accused persons, as she was not tendered for cross-examination, her evidence cannot be taken into consideration.
13. P.W. 19 Smt. Sandhya Debi, a resident of premises No. 14/21/2 Sanatan Mistri Lane, went to the roof of their premises on February 19,1995 in the evening for drying their clothes and found a meeting going on in the house of accused Nebulal in presence of all the above accused persons and on the following day i.e. February 20, 1995 she heard about pouring of acid on Bindeshwari. P.W. 20 Raj Debi mother of Deepak (P.W. 17), who was declared hostile, ultimately admitted in her cross-examination by prosecution that a dispute was going on between Bindeswari and the accused persons over their residential premises. It is her further admission that her statement was recorded by a magistrate when she stated that before 2/3 days of February 19, 1995 she was called by Nebulal through his man and on that date in the evening at about 7.00 p.m. she had been to the house of Nebulal and heard Nebulal to say to Ramlal, Ramraj, Bhabani and Mahabir that Bindeswari may be killed at any place wherever he is found, that the date of his case was fixed on February 20, 1995 and if possible he may be killed within the court on that day, that on hearing this when she went to the roof to meet Nebulal, Nebulal became excited on seeing her and asked her as to who permitted her to go there and she may leave the place and come later. Similar is the evidence of P.W. 22 who deposed regarding the said meeting on February 1995 in the house of accused Nebulal in presence of all the above accused persons and after the meeting Ramraj, Bhabani, Bhim Shaw, ramlal and Mahabir came in front of the residence of Bindeswari in drunken condition and abused him in filthy language. Accused Mahabir and Ramraj were shouting and Nebulal expressed that "Bindeswari's khel khatam ho jayega". P.W. 23 also saw the said meeting of Ramlal, Bhabani, Ramraj Mahabir and Bhim on the roof of the house of Nebulal in the afternoon of February 19, 1995.
14. According to the evidence of P.W. 21 Sitaram Sharma, a barber by profession and resident of 64, Sanatan Mistri Lane and sole eyewitness of the incident, he came to Howrah Court on February 20, 1995 in connection with his own case to meet Mr. Satyajit, clerk of his advocate Buddhadeb Ghosal (P.W. 6) and was standing near the sherista of said Buddhadev Ghosal as Satyajit was not there. It was known to him that Bindeswari had come to Howrah Court with Saheb Chawhan (P.W. 15). While he was going towards the election godown by the side of small library and crossed the said small library, he found Bindeswari coming towards him through the sweeper's gali and behind him, accused Ramlal, Mahabir, Bhabani, Ramraj and a stranger with a jar were coming. Ramlal told the said stranger carrying the jar to perform the job as early as possible. Ramlal then called bindeswari saying "Oh, Bindeswari Bhai". Bindeswari stopped near the election godown and tried to see who was calling him and just at that moment the said person carrying the jar, poured some water like substance on the head of Bindeswari from that jar. Ramlal told to his other companions that the work was complete and therefore they may go and thereafter all the said persons fled away by the same road through which they came. Bindeswari raised a hue and cry and asked for saying him. He also shouted that acid was thrown on him by unknown person and that men of Nebulal had thrown acid on him. By saying so, he advanced 2/3 steps and fell down. He also found two children near their election godown shouting and another person (P.W. 2) on uttering that decide was thrown on his hand was moving his hand. When Bindeswari fell down a number of lawyers and their clerks assembled there. He was frightend as accused Ramlal, Mahabir, Bhabani and Ramraj had seen him from his front side and thought that the said persons of Nebulal might kill him. He then left the court compound and took shelter in his house. In the afternoon his brother Ramratan Sharma came and found him sitting gloomy inside his room and on his query he informed that he saw four accused persons as named earlier to cause acid to be thrown by a stranger on the head of Bindeswari. Out of fear he left for his native village in Bihar on 21.02.95 as he guessed something wrong might be committed upon him by the accused person. He returned on July 5, or 6 1995 to Howrah when Jagdish (P.W. 16) came to him and on his query as to whether he had witnessed the occurrence, he replied in the affirmative. Jagdish then requested him to disclose everything to police and then with the help of Jagdish he went to police and narrated the incident which was recorded by police. He was taken before a magistrate (P.W. 39) who recorded his statement (Ext. 22). On the same date one lady by name Raj Debi (P.W. 20) went to the P and she also gave statement before the Magistrate. The above evidence prior to the stage of pouring acid on the victim is buttressed by P.W. 15 Saheb Chawhan, a resident of 69 Sanatan Mistri Lane who accompanied Bindeswari on February 20, 1995 to Howrah Court to meet Advocate Buddhadeb Ghosal. His wife and mother-in-law had 50% share in premises No. 5 Sanatan Mistri Lane and the balance half was owned by one Lakshmi Chand Nania which was taken by Nebulal on persuading the said Lakshmi Chand Nania. Nebulal along with Bhabani and Ramlal started to break down the said premises from that date. He then took the help of Bindeswari who was a social worker and for that reason he came to Court with Bindeswari to see Advocate Buddhadeb Ghosal. On going tot the Sherista of Buddhadeb Ghosal they did not find him there and on coming to learn that he had gone to bar library, they went there, found him but could not talk with him and as such they proceeded towards the bigger library. When they reached near the bigger library they found accused Bhabani and Ramlal speaking with a lawyer. Bindeswari left him to meet with another person asking him to come after sometime. When Bindeswari left, he found ramlal, Bhabani and Ramraj speaking with a stranger having a white jar in hand and pointing him towards Bindeswari. He further saw the said three accused persons along with the stranger to proceed to Court side and thereafter he did not see what happened. He left the court compound for sometime and thereafter when returned he could not find Bindeswari at the place where he asked him to meet him. On coming to learn from the persons in Court that acid was thrown on Bindeswari who was removed to hospital, he went there and found him in burnt condition with acid followed by his going to the house of Bindeswari for giving, intimation to the inmates of the house when he came to learn that the inmates after getting the information had already started for hospital. While he was coming to Court with the victim on that date he found him pale and on his query he disclosed that he was afraid of Nebulal and apprehended that Nebulal might kill him if he takes initiative in starting a came over holding No. 5. They obtained an order of injunction from the Court of Munsif, 3rd Court, Howrah in T.S. 59/95, but Nebulal violated the said order of injunction and on being opposed by them, Nebulal threatened that he would not spare Bindeswari.
15. P.W. 24 constable Abul Kalam produced and proved a report (ext. 23) and entries regarding receipts of letters in the registers (Exts. 24/1 to 24/7). P.W. 25 A.S.I. Pabitra Ranjan Basu proved a report (Ext. 25) in respect of the queries made by Special P.P. of this case and relevant entries (Exts. 26/1 to 26/11) in the receipt registers. P.W. 26 constable Krishnendu Biswas similarly proved a report (Ext. 28) made by Additional S.P. (Town), Howrah and relevant entry (Ext. 29) in the receipt register.
16. P.W. 27 Chinmoy Chakraborty, Deputy Magistrate, Howrah, as per direction of Additional District Magistrate (Judicial), Howrah, recorded the dying declaration (Ext. 14) of the victim Bindeswari on February 20, 95 at Howrah General Hospital in presence of three nurses and Jagdish Shaw (P.W. 16). He stated that Dr. K.K. Dan (P.W 14) was in the O.T. and despite his request to the authority to be present and to certify that the patient was in a condition to give the statement, they did not turn up. According to the said statement of the victim, February 20, 1995 when he came to Howrah Court compound, someone threw acid on him from his back and he could not identity him. He suspects that it was done by his neighbourers Nebulal, Ramlal, Bhabani, Ramraj and Mahabir on account of dispute over property for which several cases are pending and a diary was also lodged with Golabari P.S. P.W. 28 Dr. S. Chakraborty, Emergency Medical Officer of Howrah District Hospital merely stated that injury report was issued by Dr. S. Chandra (P.W. 29). P.W. 29 Dr. Saumya Chandra, Emergency Medical Officer of Howrah District Hospital, on examination of Bindeswari on February 20, 95 at about 1.30 p.m. found the condition of the patient was very serious and chemical injury (acid) all over face, trunk and limbs, the history of the injury being at Howrah Court compound on February 20, 95 at 1.20 p.m. On examination of Usha Kumari Routh, aged about six years and Kanchan Kumari Routh, aged about 3 years, on the same date at about 1.30 p.m. and 1.25 p.m. respectively found chemical injury (acid) over the body surface, the history of the injury being as above. On examination of Dipak Kumar Banerjee (P.W. 2) on the same date at about 1.35 p.m. found the patient conscious and chemical burn injury on both forearm, hands, both knee and legs and over neck, the history of the injury being as above. All the patients were admitted in the hospital under Dr. K.K. Dan (P.W. 30). As per evidence of P.W. 30 Dr. K.K. Dan, Surgeon of Howrah February 20, 95 in the Indoor Male Surgical Ward. He proved the admission ticket (Ext. 15) and bed-head ticket (ext. 36) of Bindeswari, admission ticket (Ext. 37) of Dipak Kumar Banerjee (P. W. 2) who was also admitted in Indoor Male Surgical Ward on the same date and also the admission ticket (Ext. 38) of Usha Kumari Routh who was admitted in the child ward on February 20, 1995 as also treatment sheet (Ext. 39). P.W. 37 S.I.B. Majumdar of Alipore P.S., on receipt of an injury report (Ext. 42) of Bindeswari on February 21, 1995 from C.M.R.I, Calcutta showed the same to O.C., Alipore P.S. and with his permission went to C.M.R.I. for enquiry. He examined Bindeswari in the hospital and recorded in presence to witnesses his statement (Ext. 17) which was signed by the injured. The said statement recorded by P.W. 37 runs as follows:
Yesterday February 1995 (20, 1995) at about 1.30 p.m. while I was proceeding to meet my lawyer Buddhadeb Ghosal at Howrah Court, suddenly I was called by some unknown person 'Bindeswari Bhaiya' for which I stopped and at that time someone poured acid on my head. I shouted and fell down and thereafter a few persons poured water on my person and I was removed to Howrah Hospital wherefrom my brothers Mundrika Shaw (P.W. 14), Jagdish Prasad Shaw (P.W. 16) and Asrafi Prasad Shaw shifted me on that date at about 5.00 p.m. to Calcutta Hospital.
17. As per evidence of P.W. 31 Dr. Samar Kumar Banerjee, consultant visiting surgeon of C.M.R.I., Bindeswari was admitted under him. He proved the bed head ticket (Ext. 40 (coll.) as also death certificate (Ext. 41) of Bindeswari who was under his treatment from February, 20, 1995 to April 26, 1995 and April 1995 at 7.25 p.m. he expired, the causes; of death being cardio respiratory failure in a case of acid burn (55%) Bindeswari was admitted with burn at C.M.R.L on February 20, 1995 at about 5.20 p.m. It is his further evidence that the patient stated that around 11.30 a.m. some miscreants poured a bucket full of acid over his head, in Howrah Court on February 20, 1995 and he complained of burning pain over his trunk, arms, eyes and face. According to the evidence of P.W. 33 Dr. M.N. Bhattacharya, House Surgeon of C.M.R.L., the patient Bindeswari was admitted under Dr. S. Banerjee (P.W. 31) and he treated him on different occasions from March 17, 1995 to April 26, 1995 and participated in the operation of the patient on a number of dates. On April 26, 1995 at 7.10 p.m. for the last time he examined him and at about 7.25 p.m. on the same date the patient did not respond, for which he was declared dead. P.W. 32 Dr. D. Basu, General Duty Medical Officer (Exergency), C.M.R.L merely proved the admission ticket (Ext. 18) over the dead body of Bindeswari at C.M.R.L., Calcutta in presence of witnesses Mundrika Prasad Shaw (P.W. 14) and Dr. Satyanarayan Shaw and thereafter the body was sent to Kantapukur police morgue for PM examination. P.W. 34 Dr. P.B. Das, A.C.M.O.H. Medicolegal, 24 Pgs (S) on holding PM examination over the dead body of the victim bindeswari, being brought and identified by constable Rajani Mahato (P.W. 36), at about 1.00 p.m. found the whole body pallor in appearance and dissection, excessive first and second degree burns over head, forehead, eye-lashes, eye-brows, eyelids, nore, lips, chinks, cheeks, both ears and all other parts of face, neck as a whole, chest wall as a whole, medial side of left arm, forearm, palm, right elbow to down right palm as a whole, back from the naps of the neck to down lumber region, both shoulders over seprial region 4 ft. 3 ft. muscle deep. All the burn injuries having evidence of redness, some are partly healed up and some having pus formation and all the inuries showed evidence of vital reaction. On dissection it was further found amongst others larynx and tracheal; pale, right lung and left lung : alobs congested, mouth, pharynx and esophagus : pale, kidney congested both and the death, in his opinion, was due to the effect of persisting suffering from the extensive burn injuries, ante mortem in nature. The injuries, he opined further, is sufficient to cause death in ordinary course. P.W. 38 A.S.I. Gobinda Chandra Das on receipt of written complaint.(Ext. 45) of Bindeswari recorded by S.I. Tapas Chakraborty (P. W. 40) filled up the formal FIR (Ext. 44) and started Howrah P.S. Case No. 47/95 dated February, 1995 Under Sections 324/326/307/120B/34 IPC. P.W. 40 S.I. Tapas Chakraborty on receipt of a telephonic information on February 20, 1995 at aviyt 13.20 hrs. that a disturbance was going on and there was a panic in the Howrah Court compound in front to Criminal Court bar library, being accompanied by Pradip Samaddar, S.I. Sujit Bose, S.I. Samarendra Nath Bera and A.S.I. Bijoy Sarkar went tot he P.O. and came to learn that in front of the sherista of Joydeb Swain (P.W. 1) some unknown persons threw acid on a person, aged about 35 years, the jar containing acid and some other articles left there and the injured was removed to Howrah Hospital in serious condition. On placing force to guard the P.O. he along with the officers and force rushed to Howrah General Hospital and came to learn from the emergency medical officer Sr. S. Chandra (P.W. 29) that one Bindeswari Prasad Shaw and another male person with acid burn injuries were admitted in the male surgical ward and two minor girls with same injuries were admitted in child ward. With verbal permission of Dr. K.K. Dan (P.W. 30) he recorded the statement (Ext. 45) of Bindeswari Prasad Shaw at about 13.45 hrs. and forwarded the same to duty officer, Howrah P.S. through homeguard Swapan Ghosal for starting a case Under Sections 324/326/307/120B/34 IPC. After despatching the complaint to the P.S. he seized the wearing apparels of Bindeswari and Dipak Kumar Banerjee (P.W. 2) in presence of witnesses Tapan Kumar Mukherjee, Advocate (P.W. 4) and Advocate Md. Baddruja Molla (P.W. 9) under a Section list (Ext. 3) and also recorded the statement of said Dipak Kumar Banerjee. In the children ward he found Usha Kumari Routh and Kanchan Kumari Routh who were lying with acid burn injury but were not in a position to give any statement. On way back to P.O. he submitted a prayer before the Additional District Magistrate (Judicial), Howrah to depute an Executive Magistrate to record the dying declaration of Bindeswari. On receipt of the written complaint at the P.S., I.C. Howrah P.S. endorsed the case to him for investigation. He prepared a rough sketch map of the P.O. with index (Ext. 46), seized the container of acid and other articles at the P.O. under a Section list (Ext. 1) in presence to witnesses Joydeb Swain (P.W. 1) and Kamal Krishna Banerjee (P.W. 23). There he recorded the statements of P.W. 1 and other witnesses. On that date at about 17.30 hrs. he unsuccessfully raided the house of the accused persons at Uriyapara. At about 18.00 hrs. they went to the house of Bindeswari and recorded the statement of Rama Devi (P.W. 18), Saheb Chawhan (P.W. 15) and Dipak Kumar Srivastava (P.W. 17). He collected injury reports of four injured person viz. Bindeswari, Dipak Kumar Banerjee, Usha Kumari Routh and Kanchan Kumari Routh and came to learn that Bindeswari had already been shifted to CMRI. At the hospital he also learnt that dying declaration of Bindeswari was already recorded and the same had been collected by the officers of the P. S.The papers containing two files (Mat Ext. XV (coll.)) which he seized from the P.O. were afterwards listen by him in presence of Jagdish Prasad Shaw. On February 21, 1995 he along with officers and force conducted raid from 1.55 hrs. to 4.30 hrs. at Oriya Para but none could be found. On that date at about 10.40 hrs. he recorded the statement of Advocate Buddhadeb Ghosal (P.W. 6) and others and at about 12.30 hrs. he tried to record the statements of the said two children at Howrah Hospital but could not do so as their condition was serious. On February 22, 1995 at 1.30. hrs. they again conducted a raid at Oriya Para but none could be found. On that date with the prior permission from the hospital authority he recorded the statement of Bindeswari at CMRI. On February 23, 1995 they unsuccessfully held a raid within the jurisdiction of Jagaddal P.S. and also at the house of the accused persons for apprehending the accused persons. On February 25, 1995 he submitted a prayer for issuing W.A./W.P.A. so as to arrest the six accused persons. Thereafter on different dates and on different places raid was conducted unsuccessfully for apprehending the accused persons. On 06.03.95 he collected a report from the Special Officer, Howrah Municipal Corporation regarding holding No. 10, Sanatan Mistri Lane and on the same date he came to learn from office of thika controller that holding No. 10 Sanatam Mistri Lane is a thika land. He sent the seized articles to FSL. On March 09, 1995 he arrested one Mohanlal Ram @ Bampat. On March 18, 1995 he took snaps of two children at Howrah general Hospital. On March 20, 1995 at about 6.05 hrs., on source information, being accompanied by I.C. Howrah and some other officers arrested accused Nebulal from Strand Road, recorded his statement and forwarded him with a prayer for five days P.C. On March 21, 1995 he seized a number of documents relating to enmity between Bindeswari and FIR named accused persons and others, on being produced by Jagdish Prasad Shaw (P.W. 16) under a Section list. On April 24, 1995 on secret information he held a raid at Howrah Station area and arrested accused Ramlal and Bhabani. On April 24, 1995 at 19.25 hrs. Mundrika (P.W. 14) informed I.C. over phone regarding death of Bindeswari. On May 11, '95 he arrested accused Ramraj, Mahabir and Bhim from Howrah bus-stant. He collected chemical examination report (Ext. 49), bedhead ticket of Bindeswari from CMRI and submitted charge-sheet against six accused persons viz Nebulal, Ramlal Chowdhury @ Chedilal, Bhabani Shaw, Ramraj Shaw, Mahabir Shaw and Bhim Shaw Under Sections 302/34, 307/34 and 120B/34 IPC on June 15, 1995 with a prayer for discharge of accused Bampat and Dhiraj Jiswal. The Chemical Examiner's report (Ext. 49) reveals that nitric acid, an inorganic acid, was detected from the washing of the polythene jar and polythene lid contained in the paper covered cardboard case marked 'A' and paper cover marked 'B' respectively. P.W. 39 Siddhartha Chattopadhyay, the then Judicial Magistrate, 4th Court, Howrah recorded the statements (Exts. 21 and 22) of Smt. Raj Devi (P. W. 20) and Sitaram Sharma (P.W. 21) u/s 164 Code of Criminal Procedure on July 10, 1995. P.W. 41 Inspector Sadhan Krishna Ghosal of Howrah P.S, in the course of further investigation as per direction of Additional S.P. (Town), Howrah examined two witnesses Sitaram Sharma (P.W. 21) and Raj Debi (P.W. 20) who were produced before him by Jagdish Prasad Shaw (P.W. 16) on July, 10, 1995 and thereafter made a prayer before the Id. S.D.J.M., Howrah for recording their statements Under Sections 164 Code of Criminal Procedure He collected copies of the statements u/s 164 Code of Criminal Procedure and submitted supplementary charge-sheet Under Sections 302/120B/307/34 IPC against the aforesaid accused persons.
18. A glance to the above will reveal that the present case hangs upon direct as will as circumstantial evidence, direct evidence being that of P.W. 21 which is supported by P.W. 15 and the circumstances being five-fold viz. (1) enmity between the victim and the accused persons, (2) conspiracy of the accused persons on the previous evening, (3) presence of the accused persons near the P.O. at the time of incidence, (4) dying declarations and (5) ascendance of the accused persons immediately after the occurrence.
19. Indubitably, the victim Bindeswari sustained acid burn (55%) on February 20, 1995 at about 1.10/1.15 p.m. in the Howrah Court compound in front of the sherista of P.W. 1 Joydeb Swain near election godown of SDO resulting in his hospitalization in Howrah General Hospital at about 1.35 p.m. on that date and shifting at about 5.20 p.m. to CMRI, Calcutta where he ultimately expired on February 26, 1995 at about 7.25 p.m., as is evinced from the evidence of P.Ws. 1 to 5, 13, 29, 33 and 34. There is also no dispute that at the time of incident due to sprinkling of acid, Dipak Kumar Banerjee (P.W. 2) sustained acid burn injury on his forearms, hands, both knee and legs and over neck and two children Usha Kumari Routh and Kanchan Kumari Routh, aged about six ears and 3 years respectively, sustained chemical injury (acid) over body surface.
20. It is the evidence of P.W. 21 that on 20 February, 1995 he came to Howrah Court in connection with this case to meet one Satyajit, clerk of his advocate Buddhadeb Ghosal (P.W. 6) and was standing near the sherista of the said Advocate Buddhadeb Ghosal, Satyajit was not there at that time for which he was waiting. It was known to him that Bindeswari had come to court with one Saheb Chawhan (P. W. 15) on that date. When he was going towards the election godown by the side of small library and had just crossed the small library he found Bindeswari coming towards him through the sweeper's lane and Ramlal, Mahabir, Bhabani, Ramraj and a stranger with a jar behind Bindeswari. Ramlal asked the person carrying the jar to perform the job quickly and called Bindeswari saying, 'Oh, Bindeswari Bhai', Bindeswari then stopped near the election godown and tried to see who called him and just at that moment the person carrying the jar, poured some water like substance on the head of Bindeswari from that jar. Ramlal then told to his companions that the work was complete and they may go and thereafter all the said persons fled away by the same road through which they came. Bindeswari then asked for help shouting that acid was thrown on him followed by his advancing 2/4 steps and falling down. He also found two children near the election godown shouting and another person (P.W. 2) near them on saying that acid was thrown on his hand was moving his hand. When Bindeswari fell down, many lawyers and their clerks assembled there. The above evidence before the stage of throwing acid is supported by P.W. 15 who deposed that his wife and mother-in-law had 50% share in premises No. 5 Sanatan Mistri Lane and accused Nebulal on persuading Lakshmi Chand Nunia who was the owner of the balance half, took her share and he along with their side. Accordingly, they sought for held from Bindeswari who was a social worker. On February 20, 1995 he accompanied Bindeswari to Howrah Court to meet Advocate which he was waiting. It was known to him, that Bindeswari had come to court with one saheb Chawhan (P.W. 15) on that date. When he was going towards the lection godown by the side of small library and had just crossed the small library he found Bindeswari coming towards him through the sweper's lane and Ramlal, Mahabir, Bhabani, Ramraj and a stranger with a jar behind Bindeswari. Ramlal asked the person carrying the jar to perform the job quickly and called Bindeswari saying 'Oh, Bindeswari Bhai'. Bindeswari then slopped near the election godown and tried to see who called him and just at that moment the person carrying the jar, poured some water like substance on the head of Bindeswari from that jar. Ramlal then told to his companions that the work was complete and they may go and thereafter al the said persons fled away by the same road through which they came. Bindeswari then asked for help shouting that acid was thrown op him by unknown person and men of Nebulal had thrown acid on him followed by his advancing 2/4 steps and falling down. He also found two children near them on saying that acid was thrown on his hand was moving his hand. When Bindeswari fell down, many lawyers and their clerks assembled there. The above evidence before the stage of throwing acid is supported by P.W. 15 who deposed that his wife and mother-in-law had 50% share in premises No. 5 Sanatan Mistri Lane and accused Nebulal on persuading Lakshmi chand Nunia who was the owner of the balance half, took her share and he premises from their side. Accordingly; they sought for held from Bindeswari who was a social worker. On Februay 20, 1995 he accompanied Bindeswari to Howrah Court to meet Advocate Buddhadeb Ghosal. On way to Court he found Bindeswari pale and on his query he disclosed that he was afraid of Nebulal as he might kill him if he takes initiative in starting a case over holding No. 5. On coming to learn from sherista that Buddhadeb Ghosal had gone to bar library, they went there, found him but could not talk with him and so they proceeded towards the bigger library, when they reached near bigger library they found accused Bhabani and Ramlal speaking with a lawyer. Bindeswari left him to meet with another person on asking him to come after sometime. At that time he found Ramlal, Bhabani and Ramraj speaking with a stranger having a white jar in hand and pointing him to Bindeswari. He also saw the said three accused persons along with stranger to proceed towards the courtside and thereafter he did not see what happened. There is a discrepancy in his evidence as he did not utter the name of Mahabir as a participant.
21. Mr. Dilip Dutt, Id. counsel for Appellant Bhabani, relying upon the cases of Balakrushna Swain Vs. State of Orissa, P. Sadhukhan v. State of West Bengal and C. Cr.L.R. S.C. 100 Awadhesh v. State of M.P. advanced argument contending that as there was unreasonable delay for about 4 months in recording the statement of P.W. 21, no reliance should be placed upon the said testimony. On pointing out certain omissions e.g. he did not state to the magistrate (P.W. 39) that when he proceeded a few steps forward he found Ramlal, Bhabani, Mahabir and 1/2 other persons standing with a glass jar, that Ramla called Bindeswari and when Bindeswari turned his had, the remaining person poured something on the head of Bindeswari from the said glass jar and that he did not state to second I.O. P.W. 41 that the accused persons came to the road and escaped by the same road, Mr. Dutt assailed the evidence of P.W 21 to be not reliable as he tried to make improvement of his earlier version. Mr. Dutt adversely criticized the conduct of P.W. 21 as he neither informed the incident to Howrah P.S. nor to any person of the locality or even to the inmates of the house of Bindeswari, on the contrary he silently fled away to his native village. In addition to the above, Mr. Sekhar Basu, Id. Counsel for the Appellants Ramlal and Ramraj submitted that though P.W. 21 who used to go to Bindeswari for advice in connection with different court matters, claimed in cross-examination that Bindeswari was proceeding towards him from front to front, Bindeswari never uttered in his statement on February 20, 1995 regarding presence of P.W. 21. Mr. Basu on referring to the case of 2003 SCC (Cr) 544 Lallu Manjhi v. State of Jharkahnd further contended that it is admitted by P.W. 21 that his case was not fixed on February 20, 1995 and so the story of going to Howrah Court on that date only to meet Bindeswari does not stand and as he is the solitary eyewitness who having intimacy with the victim is vitally interested, no reliance should be placed upon his testimony.
22. The belated examination of witnesses by police is not fatal if explanation offered is cogent, but if no explanation is given, the evidence of those witnesses become unreliable, as was held in the case of Balakrushna Swain Vs. State of Orissa, . where it was held that examination of witnesses by the police long after the occurrence without any explanation should be discarded. In the case of(6) Ranvir v. State of Punjab, it was held that belated examination of witnesses by police does not render the evidence untrustworthy. In the case on hand, it is the evidence of P.W. 21 that as accused Ramlal Mahabir, Bhabani and Ramraj had seen him from front side, he became frightened thinking that those persons who are men of Nebulal might kill him and so he left the court compound and in the afternoon on query of his brother Ramratan, he informed him that he had seen those accused persons to cause throwing of acid by a stranger on the head of Bindeswari and on the following date i.e. February 21, 1995 he out of fear fled away to his native village in Bihar. He came back on 5th or 6th of July to Howrah when Jagdish (P.W. 16) came to him and asked whether he has seen the occurrence, to which he answered, in the affirmative. On his request to disclose everything to police and with his help he went to police and narrated the incident which was recorded by police (P.W. 41) followed by recording of his statement by a Magistrate (P.W. 39). The above evidence is supported by P.Ws. 16 and 41. P.W. 16 deposed that on July 7/8, 1995 when he came to know from some local people that one Sitaram Sharma (P.W. 21) and another woman Raj Debi (P.W. 20) have some information regarding the incident of his brother Bindeswari, he had talks with them and on July 9, 1995 he went to Howrah P.S. and informed the police officer about Raj Debi and Sitaram Sharma regarding their having information about the incident. On being asked by the police officer to bring those persons on the following date, he took them to Howrah P.S. on July 10, 1995 and came back. P.W. 41 examined P.Ws. 21 and 20 on that very date. A person who had witnessed the incident of pouring of acid would naturally be frightened and will take all possible steps to protect himself, as self-preservation is the first instinct of a being and so, his failure to inform about the incident to P.S. or to the inmates of the house of the victim and to leave his residence for the time being for his native place in Bihar in the above circumstances cannot be said to be matter beyond the normal conduct of a person. The above ground is a sufficient explanation for belated examination of P.W. 21. That apart, no question having been put to P.W. 41 as to the cause for the delay, the defence cannot derive any advantage from it. In this connection, the cases of 2004 SCC (Cr.) 294 Bunti v. State of U.P. and 2005 Sec. (Cr.) 642 State of U.P. v. Satish may be relied on. As regards the said omissions, statements to police are meant to be brief and omission amounts to contradiction when it is the respect of a vital point, but omission to minor details cannot be utilized as contradictions. In this connection, the case of Surender Kumar Aggarwal Vs. Satyapal Varshneya, . may be referred to So not only the omission of P.W. 21 to state before P.W. 41 that the accused persons came to the road and escaped by the same road, so pointed out by Mr. Dutt, but also a large number of other omissions in the testimony of different witnesses do not fail within the category of contradictions. Statement of a witness recorded u/s 164 Code of Criminal Procedure is not a substantive piece of evidence, but it is only corroborative. Here, the sum and substance of the statement of P.W. 1 recorded u/s 164 Code of Criminal Procedure and his evidence is more or less same with some minor deviation, It appears from the statement (Ext. 22) of the above witness u/s 164 Code of Criminal Procedure that he duly stated all that he denied as above in his evidence and so the said denial cannot be said to be any contradiction at all. The witnesses are deposing after a lapse of about more than 4 years and so some discrepancies in regard to collateral or subsidiary facts due to lapse of time is bound to occur which should not be given much importance. The dying declaration of a person is the groaning utterance of a dying man and it cannot be a detailed one. In this connection, the case of AIR 1980 S.C. 1228 Somnath v. State of Haryana may be referred to. So, merely because the victim did not mention about presence of P.W. 21 at the P.O. in his statement recorded on February 20, 1995, it is no ground for holding him absent from the P.O. and discarding his evidence. Moreover, a dying statement usually contains the recitals of the cause of death or circumstances resulting in death and the person with severe burn injury and pain cannot be expected to recapitulate as to the person/persons who had seen him immediately before the incident nor he could give wealth of details which is unrealistic, it is the evidence of P.W. 21 who is a resident of 64 Sanatan Mistri Lane that he, Joynarayan (P.W. 23) Pitambar (P.W. 22) and other tenants instituted a suit being T.S. 265/93, for which the owner Kanta Prasad could not construct multi-storeyed building and their lawyer was Buddhadeb Ghosal who was recommended by Bindeswari. February 15, 1995 was the date of hearing of this case and he came to the Court on February 20, 1995 to meet Satyajit, clerk of Buddhadeb Ghosal, Advocate, for collecting the next date hearing. To a question in cross-examination that the next date was fixed on May 25, 1995 he expressed his ignorance. No animus of the said P.W. 21 against any of the accused persons having been made out, it improbabilises the hypothesis of his false implication of the accused persons. Merely because he used to take advice of Bindeswari in connection with his case, it did not make him an 'interested' witness, as a witness becomes interested when he or she derives some benefit from the result of litigation--in the decree in a civil suit or in seeing the accused persons punished. Here, P.W. 21 being a natural witness cannot be said to be interested. Accordingly, there is no reason to disbelieve his testimony.
23. As regards P.W. 15, Mr. basu contended that the presence of this witness who is a member of RPF is rendered highly unreliable in the light of the fact that he failed to produce requisite permission or station leaving certificate from the place of his posting at Muri in the district of Ranchi, State of Bihar. Mr. Basu further contended that there is no earlier statement of P.W. 15 before the I.O. (P.W. 40) that Bhabani, Ramraj and Ramlal along with a stranger were proceeding towards the court or that the victim was looking pale on the fateful day as he was in fear of being eliminated by the accused persons. Necessity knows no bounds. In the circumstances narrated by him, he had to come to Howrah Court to meet his lawyer on that date. As because he failed to produce the station leave permission, for which he may be subjected to disciplinary action by his authority, it is no ground for holding his absent from the P.O. on that date. As discussed earlier, statements to police are meant to be brief and omission amounts to contradiction when it is in respect of a vital point, but omission to minor details cannot be utilized as contradiction. The said omissions, as pointed out, relate to minor details and as such the same cannot be treated as contradiction. Even if, for argument sake, the said evidence is excluded from consideration, that while he was going away from Bindeswari, he found Ramlal, Bhabani and Ramraj speaking with a stranger and they were pointing him to Bindeswari, as deposed by P.W. 15, remains uncountroverted in his cross-examination and as such the said exclusion of that part of the evidence does not as all affect the overall testimony of P.W. 15. It is his further evidence that they obtained an order of injunction in T.S. 59/95 from the Court of 3rd Munsif, Howrah, but Nebulal violated the said order and on being protested by them, he threatened that he would not spare Bindeswari. The articles seized by I.O. (P.W. 40) from the P.O. under a Section list (Ext. 1) are (1) empty jar with smell of acid, (2) one blue lid of jar, (3) controlled earth, (5) one pair of hawai chappal and one pair of rubber shoe with smell of acid, (5) one cover file (maroon colour) bearing writing T.S. 59/95, needless to mention, belongs to P.W. 15. That P.W. 15 accompanied the victim finds place in the statement (Ext. 47) of the victim recorded by P.W. 40 on February 20, 1995 at C.M.R.I. and it is the evidence of P.W. 21 that he knew that Bindeswari had come to Howah Court on that date with one Saheb Chawhan (P.W. 15). It is the evidence of P.W. 16 that in the morning of 20.02.95 Bindeswari accompanied P.W. 15 to Howrah Court in connection with a case relating to premises No. 5 Sanatan Mistri Lane. P.W. 23 met P.W. 15 in the court compound on that date when the latter informed him that the person of Nebulal had thrown acid on him, for which he was injured. The said information, cannot be taken into account since there is no such evidence on the part of P.W. 15 that he informed as above. No infirmity could be, elicited in the cross-examination of P.Ws. 15 and 21 no is there any ground for discarding their testimony. On the face of the above, there cannot be any doubt regarding presence of P.W. 15 at the P.O. just before the incident.
24. Mr. Dutt adversely criticized for non-examination of Ranjit Ganguly who took the injured Bindeswari to Howah General Hospital and Ramratan Sharma, brother of P.W. 21 to whom P.W. 21 narrated the incident before leaving for his native village in Bihar. Mr. basu added the name of Bir Bahadur Routh, father (sic) the two injured children viz Usha Kumari Routh and Kanchan Kumari Routh, who brought his said daughters to hospital and sated before P.W. 29 that they sustained chemical injury (acid) while some unknown persons threw acid from a building inside the court compound which contradicted the evidence of P.W. 21 but such an important witness was not examined. So far as the said Ranjit Ganguly and Bir Bahadur Routh are concerned, they brought the victim Bindeswari and two minor children respectively to hospital. That Bir Bahadur Routh brought the two injured children to hospital, as deposed by P.W. 29, is contradictory to P.W. 1 whose specific evidence is that he took the two children to hospital which is supported by P.W. 2 who deposed that P.W. 1 went to the rescue of the said children. Nevertheless, the sherista of P.W. 1 Joydeb Swain is in front of the election godown of S.D.O. and that of P.W. 2 Dipak Kumar Banerjee who also sustained acid injury, is at a distance of 4 ft. from the P.O. The evidence of P.W. 1 reveals that the said to children were playing by the left side of his sherists and P.W. 2 was writing a petition in front of him. In other words, P.Ws. 1 and 2 were nearest to the P.O. and there is nothing to suggest in their evidence or in the evidence of any witness that Ranjit Ganguly or Bir Bahadur was anywhere nearby the P.O. at the time of incident or they witnessed the occurrence. Therefore, when Bir Bahadur was not anywhere nearby the P.O. and as such had no occasion to witness the incident, his above stray statement before P.W. 29 that acid was thrown on his daughters from a building inside the court compound is baseless and no importance can be attached to it on the face of the above testimony of P.Ws. 21 and 15. In regard to the contention of throwing of acid from the balcony, no such suggestion even was put to any witness. If acid was thrown from balcony, it would have sprinkled covering a large area. That apart, amongst a number of articles seized from the P.O. under a Section list (Ext. 1), two are empty jar and a lid of the said jar, both with smell of acid. Had acid been thrown from balcony the said two articles would have been found on the balcony and not from the P.O. So, the question of throwing acid from balcony is out of the way. It is not necessary that before the Prosecution can suggested by the accused however, extravagant and fanciful it might be. Before an accused can contend that a particular hypothesis pointing to his innocence remained unexcluded by the facts proved against him, the court must be satisfied that the suggested hypothesis is reasonable and not far-fetched. Therefore, as because Ranjit Ganguly and Bir Bahadur brought the victim Bindeswari and two children respectively to hospital, it did not make them essential to unfold the prosecution story. Similarly, merely because P.W. 21 narrated the incident to his brother Ramratan and the said Ramratan has not been examined here, it will not given rise to any adverse inference. It is not as if every witness who has something to do with some part of the Prosecution story should pass, through the witness box. If the said Ranjit Ganguly, Bir Bahadur Routh and Ramratan Sharma were essential to unfold the Prosecution story and were suspiciously suppressed, the question of adverse presumption would have arisen. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.
25. As a general rule, court can and may act on the testimony of a single witness though uncorroborated, that unless corroboration is insisted upon by statute the court should not insist upon corroboration except in cases where the nature of testimony of a single witness itself requires the same as a rule of prudence e.g., in the case of a child witness or witness in a position analogous to that of an accomplice and that whether corroboration of a single witness viz (a) wholly reliable, (b) wholly unreliable and (c) neither wholly reliable or wholly unreliable. The question of corroboration arises only in case of the witness of the last category in which the court is called upon to be circumspect, as was held in the case of Vadivelu Thevar Vs. The State of Madras, . In this case, the evidence of P.W. 21 has been corroborated by P.W. 15.
26. Regarding the first circumstance above, the evidence of P.W. 14, 16, 17, 22 and 23. The letters complaining about the incidents addressed to O.C., Howrah P.S., S.P., Howrah and others which were initially marked Exts. 4, 6 to 10, 13, 19 and 20 were subsequently expunged vide order No. 30 dated 2.7.98. According to the terms of agreement dated June 20, 1991 (Ext. 5), if Bindeswari could produce document showing payment of advance for purchase of a flat at 75/1 Sanatan Mistri Lane, to the second party i.e. Ramlal and his brother Shyamlal, they would be at liberty to take possession of the flat. Undoubtedly, Bindeswari could not produce any document in this regard. It was contended by P.W. 14 that all the documents were looted away from their house on September, 11 1991 which prima facie does not support the story of alleged payment of advance since the said agreement took place three months back on June 20, 1991. Nevertheless, that to resist eviction from their premises by accused Ramraj and his brothers, Bindeswari and others brought T.S. 123/91 in the Court of Mnsif, Howrah and obtained an order of injunction, that all the accused persons ransacked and demolished their house and shop on September 11, 1991 and took away all valuables from their house, for which Golabari P.S. case No. 391/91 was started against Ramlal and others, as deposed, by P.W. 16, there is no denial of it in his cross-examination. It is his further evidence that from before Febaruary 20, 1995 they noticed that Bindeswari was very much depressed and on their query he disclosed that he apprehended his death in the hands of Sahuji within a few days and a few days prior to February 19, 1995 Nebulal (@ Sahuji) being accompanied by Ramraj, Ramlal, Bhabani, Mahabir and Bhim came to front of their house, abused Bindeswari and on being protested he expressed that the span of life of Bindeswari would be 2/4 clays. He stated that many persons of their locality being victims of the promoters used to come to Bindeswari for legal advice, for which Nebulal sometimes uttered in their presence that "Bindeswari Tu Samajik Kam Karta Hai, Neta Banta Hai, Tumko Sahid Hona Padega". P.W. 17 who is a tenant of 10 Sanatan Mistri Lane similarly deposed regarding torture meted out by the accused persons to Bindeswari and other and apprehension of Bindeswari being killed by Nebulal and other accused persons. P.W. 22, an ice-cream seller and a resident of 63 Sanatan Mistri Lane and P.W. 23, a resident of 63 Sanatan Mistri Lane, supported the above evidence of P.Ws. 14 and 16. Mr. Basu on referring to the evidence of P.Ws. 14 and 16 contended that since the western G + 2 of the multi-storeyed building at 10, Sanatan Mistri Lane was completed before September, 1991 and the rooms of Bindeswari fell on the western part in the ground floor, there could not be any plausible reason in 1995 for a dispute. It is the specific evidence of P.W. 14 that inone morning of 1990 Ramraj, Mahabir and Bhim Demanded rents from Bindeswari on the ground that they purchased the premises which was refused by the latter and in June, 1991 they started breaking the structure thereon. The certified copies of orders passed in Misc. Appeal No. 209/93 and Company No. 332/2000 (Exts. 1 and M) filed on behalf of the defence revealed that as the premises No. 10, Sanatan Mistri Lane which being a property to thika tenancy was heritable but not transferable, Thika Controller, Howrah vested the same to the State by order dated July 27, 1993 which was set aside in the said Misc. Appeal preferred by Ramraj and others and the revision before this Court preferred by Bindeswari and others was dismissed with the observation that the Thika Controller alone was not competent to pass the order of vesting in violation of Rule 4 of the Calcutta Thika Tenancy (Acquisition and Requisition) Rules, 1982. The said documents coupled with the fact of completion upto third story on the western part of the multi-storeyed building at 10, Sanatan Mistri Lane in October, 1991, as deposed by P.W. 14 and thereafter starting construction on the eastern part, as stated by P.W. 16 virtually support the above evidence of P.Ws. 14 and 16 regarding demolition of the structure at 10, Sanatan Mistri Lane by accused Ramraj and others. Though Bindeswari got possession of rooms on the western part of the building, their status was that of the tenant and as Ramlal and others asked them to vacate and quit the premises, the trouble continued and so the above contention of Mr. Basu is not at all sustainable. On consideration of the above evidence of P.Ws. and documents filed by the defence, there cannot be any doubt that there was long standing enmity between Bindeswari and his brothers on the one hand and accused persons on the other. Enmity between the accused and the victim is a double-edged weapon, as it may provide incentive for the crime and it may also provide reasons for falsely implicating the accused persons. Here, since the victim who was a highly qualified person and a social worker, took steps against the accused persons by filing cases, civil and criminal and complaining to the P.S. and used to assist the persons who were victims of promoters, by giving legal advice, it intensified the hostility which prompted the accused persons to eliminate the victim from the world.
27. In regard to the second circumstance above, criminal conspiracy within the meaning of Section 120B I.P.C. postulates an agreement between two or more persons to do, or cause to be done an illegal act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. A conspiracy from its very nature is generally hatched in secret. Like other offences, criminal conspiracy can be, proved by circumstantial evidence. Indeed in most cases, proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material, as was held in the case of Noor Mohammad Mohd. Yusuf Momin Vs. The State of Maharashtra, Here, the evidence of P.Ws. 19, 20, 22 and 23 have been discussed in paragraph 13 above. P.W. 20 who was declared hostile ultimately admitted in her cross-examination by Prosecution that a dispute was going on between victim and the accused persons over their residential premises. It is her further admission that her statement was recorded by magistrate when she stated that 2/3 days prior to February 19, 1995 she was called by Nebulal through his man and on February 19, 1995 in the evening at about 7.00 p.m. when she had been to the house of Nebulal, she heard Nebulal to say to Ramlal, Ramraj, Bhabani and Mahabir that Bindeswari may be killed at any place wherever he is found, that the date of his case was fixed on February 20, 1995 and if possible he may be killed within the court on that date. On hearing this when she went to the roof to met Nebulal, the latter became excited on seeing her and asked her as to who permitted her to go there and she may leave the place and come later. Mr. Safiullah, Id. Public Prosecutor, relying on the case of 1998 S.C.C. (Sc.) 1511 Dagdu v. State of M.P. contended that since the witness cannot be permitted to get out of her admission, it must cast reflection on the evidence relating to the occurrence in full measure which appears to be appreciable. P.W. 19, a resident of premises No. 14/21/2 Sanatan Mistri Lane went to the roof of their premises on February 19, 1995 in the evening for drying their clothes and found a meeting going on in the house of accused in presence of the above accused persons. Similar is the evidence of P.W. 23 as also P.W. 22 who further stated that after the meeting Ramraj, Bhabani, Bhim Shaw, Ramlal and Mahabir came in front of the residence of Bindeswari in drunken condition and abused Bindeswari in filthy language. Mr. Basu on referring to the evidence of P.W. 19 contended that since the roof of Nebulal is surrounded by wall on four sides, there was no possibility on the part of any of the P.Ws. 19, 22 and 23 to see the alleged meeting on the roof. There is no evidence regarding the height of the parapet. In other words, if the parapet is of low height, the possibility of seeing the meeting there on the roof of Nebulal from another roof or place of the same height cannot be ruled out. Therefore, the said conspiracy of the accused persons on the previous date of the incident to commit murder of the victim and causing serious injury on the person of the victim on the following date with acid is a strong piece of evidence in the chain of circumstantial evidence to connect the above accused persons with the commission of the offence.
28. In regard to third circumstance above, it is the evidence of P.W. 15, who accompanied Bindeswari on February 20, 1995 to Howrah Court to meet advocate Buddhadeb Ghosal, in connection with his case relating to premises No. 5, Sanatan Mistri Lane, on going to the sherista of Buddhadeb Ghosal they did not find him there and no coming to learn that he had gone to bar library, they went there, found him but could not talk with him and as such they proceeded towards the bigger library. When they reached near the bigger library they found accused Bhabani and Ramlal speaking with a lawyer. Bindeswar left him to meet with another person asking him to come after sometime. When Bindeswari left, he found Ramlal, Bhabani and Ramraj speaking with a stranger having a white jar in hand and pointing him towards Bindeswari. He further saw the said three accused persons along with stranger proceeding to Courtside. The polythene jar (mar Ext. XVI) seized from the P.O., as per chemical examiner's report (Ext. 49), contained nitric acid, an inorganic acid. Therefore, presence of the above accused persons along with a stranger having a white jar in hand and pointing him towards Bindeswari followed by their proceeding towards court side i.e. near the P.O. leads to suggest that none but those accused persons committed the crime by throwing acid on the person of the victim, by the said stranger which ultimately resulted in death of the victim.
29. Regarding fourth circumstance above, there were as many as five statements of victim Bindeswari viz. (1) on February 20, 1995 at about 13.45 hrs. recorded by P.W. 40 at the Howrah General Hospital which was treated as F.I.R. (Ext. 45) where Ramraj, Mahbir, Bhim, Nebulal and Chedi Chowdhury were suspected, (2) on February 20, 1995 recorded (Ext. 14) by Deputy magistrate (P.W. 27) at the same hospital where those five persons were suspected, (3) stated before where those five persons were suspected, (3) stated before doctor (P.W. 31) at C.M.R.I. that some miscreants poured a bucket full of acid on his head in Howrah Court on February 20, 1995 around 11.30 a.m. and complained of burning pain on his trunk, arms, eyes and face, noted in the treatment sheet (Ex. 40), (4) on February 21, 1995 recorded (Ext. 17) by P.W. 37 S.I. of Alipore P.S. At C.M.R.I. in presence of P.Ws. 14 and 16 where apart from those five persons Bhabani, two other brothers of Ramraj i.e. Arjun Shaw and Acchhalal Shaw and Lakshmi Shaw were suspected and (5) on February 22, 1995 recorded (Ext. 47) by P.W. 40 at about 15.00 hrs. at C.M.R.I. where it has been mentioned that some person/persons poured acid on his head and Nebulal, Bhabani etc. conspired to kill him with acid.
30. Mr. Basu assailed the FIR (Ext. 45) on four grounds viz. (1) though the victim was highly educated person, there is no explanation on behalf of P.W. 40 as to why he did not sign but put his thumb impression there, (2) it has not been mentioned through whose pen the thumb impression was obtained, (3) before examining the victim P.W. 40 did not take permission of Dr. K.K. Dan (P.W. 30) which he was legally bound to do and (4) the nurses who were present were neither examined nor cited as witnesses. So far as the first ground above is concerned. It is the evidence of P.W. 40 that as Bindeswari informed that he could not see by his eyes, he put his LTI. The evidence of P.W. 29 who examined the victim at about 1.30 p.m. on February 20, 1995 reveals that the condition of the patient was very serious and he sustained chemical injury (acid) all over his face, trunk and limbs, it transpires from the bed-head ticket (Ext. 40) that his eyes were severely affected and there was treatment of his eyes and the elder brother of the victim gave consent for operation of his eyes. So, as because the victim in the above circumstances put his LTI on the FIR, no sinister motive can be imputed to it. As regards second ground, undoubtedly there is no mention as to through whose pen LTI was put on the FIR and though P.W. 40 claims to have written beneath the LTI that it was through his pen, the same is not correct. It is to be borne in mind that FIR is not correct. It is to be borne in mind that FIR is not a condition precedent to setting in motion of criminal investigation, but if recorded it is the basis of the case set up by the informant. The case of Apren Joseph alias Current Kunjukunju and Others Vs. The State of Kerala, , may be relied on failure to sign the FIR does not affect the admissibility of the same, as was held in the case of A.W. Khan Vs. The State, . Here, the victim put his LTI, but P.W. 40 though recorded at the bottom by the side of LTI that "Read over to him and he admitted that it has been correctly written" with his signature and date, omitted to mention beneath LTI through the pen of him. This does not at all affect the validity of the FIR. Regarding third ground, P.W. 40 recorded the statements of Bindeswari twice, one i.e. FIR at Howrah General Hospital and the other (Ext. 47) at CMRI. it is the evidence of P.W. 40 that he obtained permission of doctor of C.M.R.I. to examine Bindeswari but he did not note down the name of the doctor in the CD. He categorically denied the suggestion that he did not obtain categorically denied the suggestion that he did not obtain permission of Dr. Dan. No question was put to dr. Dan (P.W. 30) whether P.W. 40 obtained permission from him. Assuming arguendo that he did not obtain permission from the doctor-in-charge, it may at best be held to be an irregularity but not illegality. Merely because P.W. 40 is a police personnel, it is no ground for disbelieving him. In this connection, the case of State of Kerala Vs. M.M. Mathew and Another, , may be referred to. As regards fourth ground, only those who are essential to unfold the Prosecution story should be cited as witnesses and as such non-examination of nurses present and not citing them as witnesses is not fatal.
31. Regarding the statement (Ext. 14) recorded by Executive Magistrate (P.W. 27), Mr. Basu contended that it suffers from illegality since the Id. Magistrate failed to inform the Superintendent of Howrah General Hospital about the apathy of the doctors and nurses to attend and to certify about fitness of the victim nor he brought it to the notice of Additional district Magistrate (Judicial) nor he complained against them to him. Moreover, the Id. Magistrate failed to obtain LTI or signature of the declarant on the statement. Mr. Basu also contended that since P.Ws. 14 and 16--brothers of the victim, were present, the possibility of the victim being tutored by them to falsely implicate the accused persons cannot be ruled out. It is the evidence of P.W. 27 that three nurses viz. Mrs. S.N. Yashada, Mrs. Aparna Dey and Mrs. Phulu Mondal were present at the time of his recording the Statement of the victim and Dr. K.K. Dan (P.W. 30) was in the O.T. The document (Ext. 31) authorizing him by the Additional District Magistrate (Judicial), Howrah to record the statement of Bindeswari bears an endorsement of Superintendent of the Hospital directing the sister-in-charge of Male Surgical Ward to do the needful and he requested the authority to be present and to give certificate that the patient was in a condition to give statement but they did not turn up. On nothing the fact of non-cooperation of the hospital authority beneath the statement, it was placed before A.D.M. (J) for his perusal and necessary action and so no other action was required to be taken on behalf of P.W. 27. Failure on his, part to inform about the apathy of the doctors and nurses to attend and certify about fitness of the victim is not a ground in the above circumstances for holding the said statement recorded illegal. One of the important tests of reliability of dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind, as was held in the cases of K. Ramachandra Reddy and Another Vs. The Public Prosecutor, Lallubhai Devchand Shah and Others Vs. The State of Gujarat, and Lallubhai v. State of Gujarat P.W. 29 who examined the victim on February 20, 1995 at about 1.30 p.m. expressed his ignorance as to whether Bindeswari was conscious or not but he stated a the same time that if any patient is fund unconscious it is required to be noted in the injury report. There is nothing to indicate in the injury report (Ext. 32) that the victim was unconscious. On that very date P.W. 40 recorded the said statement (Ext. 45) of the victim earlier at about 1.45 p.m. So it cannot be said that the victim was not in a fit state of mind undoubtedly, P.W. 27 failed to explain the reason for not taking the signature of LTI of the declarant on the said statement which is an irregularity, but this alone cannot be held to be any ground for discarding the said statement of the victim. We fail to subscribe to the above contention of Mr. Basu that since P.Ws. 14 and 16--two brothers of the victim, were present at the time of recording of the statement of the victim, there was a possibility of the victim being tutored by them, since P.W. 27 being a responsible Government officer cannot be expected to permit such course to be followed and as such it would not denude it of its truthfulness.
32. Out of those five statements of the victim, while in No. (1) i.e. F.I.R. (Ext. 45) and No. (2) (Ext. 14) five persons viz. Ramraj, Mahabir, "Bhirh", Nebulal and Ramlal @ Chedi were suspected, in No. (3) (Ext. 40) no name was mentioned, in No. (4) (Ext. 17) in addition to the said five persons, Bhabani, Arjun Shaw, Acchhalal Shaw and Lakshmi Shaw were suspected and in No. (5) (Ext. 47) Nebulal, Bhabani etc. were suspected. The substance of Nos. 1, 2, 4 and 5 are more or less same with this exception that No. 5 is a detailed document bearing out the cause of dispute over property, his giving advice to various enants etc.
33. Mr. Dutt on referring the cases of Smt. Laxmi Vs. Om Prakash and Others, Smt. Kamla Vs. State of Punjab, Mohanlal Gangaram Gehani Vs. State of Maharashtra, and State of Gujarat Vs. Khumansingh Karsan Singh and others, , contended that where there are more than one dying declarations, the first in point of time should be preferred and from that perspective his client's name having not been borne out in the F.I.R. which is the first in point of time, he is entitled to get benefit of doubt, as suspicion, howsoever strong it might be, cannot be the basis of conviction apart from the fact that when there are inconsistencies in the statements, no reliance should be placed upon the same. Laxmi case (supra) stands for the proposition that court should be satisfied that the deceased was in fit state of mind and capable of making Statement when dying declaration was made and/or recorded and a singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction and if every individual dying declaration consisting in a plurality is found to be infirm,, the Court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent. The question relating to the victim being in fit state of mind has been discussed earlier. The fact and circumstances of the case of Kamala (Supra) being different, the same is not applicable in the case on hand. What weight is to be attached to a dying declaration depends upon the facts and circumstances of the case. The dying declaration is a statement of a person as to the cause of his death or as to any of the circumstances resulting in his death and it becomes relevant u/s 32(1) of the Evidence Act in a case in which the cause of death of that person comes into question. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim "Nemo moriturus praesumitur mentire" i.e. a man will not meet his maker with a lie in his mouth, It has always to be kept in mind that though a dying declaration is entitled to great weight, it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of unagubatuib, Vefire relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence, as was observed in Uka Ram Vs. State of Rajasthan, . In view of the decision of M.G. Gehani (supra) where it was held that the statement made by the victim first in point of item must be preferred to his subsequent statement, the F.I.R. (Ext. 45) which is first in point of time and also in harmony with the second statement (Ext. 14) above may be accepted.
34. When a case rests upon circumstantial evidence alone, while evaluating the evidence the court has to consider other circumstances also for determination of the actual offenders and if the case rests on direct as well as circumstantial evidence, the totality of the facts and circumstances has to be taken into consideration. In the present case, P.W. 15 found immediately before the occurrence Ramlal, Bhabani and Ramraj speaking with a Stranger having a white jar in hand and pointing him towards Bindeswari followed by their proceeding towards Court side and the names of the above accused persons appear to be in consonance with the evidence of P.W. 21 with this exception that P.W. 15 did not utter the name of Mahabir. Here,-the victim suspected five persons as named above viz. Ramraj, Mahabir, Bhim, Nebulal and Ramlal Chedi in the F.I.R. and how far that suspicion is acceptable has to be considered with reference to the other materials on record. There is no rule that dying declaration must be accepted in toto but only that part of a dying declaration which is considered to be true and consistent may be accepted. Therefore, merely because the name of Bhabani has not been reflected in the first statement of the victim, it is no ground for excluding his name from the list of offenders along with Ramraj and Ramlal. As there was no participation of accused Mahabir (since deceased), Bhim and Nebulal (since deceased) in the offence, their names may be excluded from the list of offenders though they were suspected by the Victim. If is not necessary that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused however, extra-vagant and fanciful it might be before an accused can contend that a particular hypothesis pointing to his innocence remained unexclued by the facts proved against him, the Court must be satisfied that the suggested hypothesis is reasonable and not farfetchd, as was held in the case of State of Smt. Laxmi Vs. Om Prakash and Others, . In 2005 SCC (Crl.) 225 State of M.P. v. Dharkole, it was held: "Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial as to the guilt of the accused persons arising from the evidence, or from the lack of it as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt; is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case." Accordingly, the above contention of Mr. Dutt is not sustainable. As such, this circumstance is another link in the chain of circumstantial evidence which irresistibly point to the guilt of those accused persons.
35. In regard to the aforesaid 5th circumstance, mere ascendance or disappearance of the accused by itself cannot form the basis of conviction, since even innocent person may when suspected on grave crime be tempted to evade arrest, such being the instinct of self-preservation. When a finger of false accusation is raised, an innocent person may behave tike a guilty one to avoid a false charge or harassment. But when there are other evidence to connect the accused with the crime, abscondence itself is a useful piece of corroborative evidence and may lend weight to other evidence. In this connection, the case of Raghav Prapanna Tripathi Vs. The State of Uttar Pradesh, . may be referred to. In the case on hand, the evidence of P.W. 40 reveals that from 17.30 hrs. on the date of incident i.e. February 20, 1995 till March 19, 1995 he unsuccessfully conducted raids for apprehending the accused persons at different places viz. Oriyapara, Bhairab Dutta Lane, Fakir Bagan Lane, Lake town, 24 Pgs (N) and (S) etc. and at different times event at the dead of night. For the purpose of raid and arrest to the accused persons, a team of S.I.P.C. Ghosh and S.I.A. Ali of Howrah P.S. and A.S.I. Chandan Ghosh of Golabari P.S. was set up. Ultimately on March 20, 1995 at about 6.05 hrs. he along with I.e., Howrah, S.I.A. Ali and A.S.I. B.C. Karmakar on source information could arrest Nebulal and Sahuji, since deceased, on the Strand Road i.e. after about one month from the date of incident. Similarly on secet information accused Ramlal and Bhabani Shaw could be arrested on April 24, 1995 from Howrah Station and Ramraj, Mahabir and Bhim could be arrested from Howrah bus-stand on May 11, 1995 between 21.00 hrs. and 22.00 hrs.
36. Mr. Basu on referring to the case of Machander Vs. State of Hyderabad, , contended that since no question relating to their ascendance was put during their examination u/s 313 Code of Criminal Procedure they were prejudiced and as such this ground cannot be taken into account. Mr. Safiullah, on the other hand, on referring to the cases of State of Punjab Vs. Naib Din, ) Shobhit Chamar and Another Vs. State of Bihar, , contended since there are sufficient materials to uphold the Prosecution story and there was substantial compliance of the provision of Section 313 Code of Criminal Procedure regarding putting of relevant question tot eh accused persons, no prejudice can be said to have been caused to the accused persons, It is well recognized that the judgment is not to be set aside on account of nadequate compliance with Section 313 Code of Criminal Procedure clear prejudice to the accused must be shown and not a possibility of prejudice, as was held in the case of AIR 1956 S.C. 636 Moseb Chowdhury v. State of West Bengal. When the accused knew the substance of accusation, elaborate argument was advance of accusation, elaborate argument was advanced on their behalf and their was substantial compliance of the provision of Section 313 Code of Criminal Procedure the question of prejudice, which the of Labhchand Dhanpat Singh Jain Vs. The State of Maharashtra, , may be referred to. Moreover, no objection was raised by the, Appellants in the Trial Court on the ground of such omission. If any appellate Court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the apellate or revisional court can endeavor to see whether it could be rectified, as was held in the said case of Naib Din (supra). Therefore, the above conduct on the part of those accused persons viz. Ramlal Chowdhury and Bhabani Shaw and Ramraj to flee away from their place of residence and their arrest after a lapse of about two on the and three months respectively is an important, link in the chain of circumstantial evidence to connect them with the commission of offence.
37. Indubitably, there are a few minor contradictions which cannot militate against the veracity of the court of the testimony of the above witnesses nor it can undo the effect of evidence otherwise sufficient on record. The witnesses are deposing after a lapse of more than 4 years from the time of incident and so some discrepancies in regard to collateral or subsidiary fact are bound to occur, as memory is apt to be blurred in the passage of time.
38. Mr. Basu assailed the charge to be defective, as it has not been framed according to the form, which, we fail to subscribe, since there appears to be no infirmity with the charge as framed. The basic requirement is that the charge must be so framed as to give the accused a fairly reasonable idea of the case he is to face. Sections 215 and 464 Code of Criminal Procedure cure every conceivable type of error and irregularity in charge that can possibly arise. The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges framed were defective, as was held in the case of Kahan Singh and Others Vs. State of Haryana, . In judging the question of prejudice, as of quilt, the court must act with a broad vision and look to the substance and not to the technicalities and their main concern should be to see whether the accused had a fair trial, whether he knew that he was being tried for, whether the main facts sought to he established against him were explained to his fairly and clearly and whether he was given a full and fair chance to defend himself, as was observed in the case of Willie (William) Slaney Vs. The State of Madhya Pradesh, . To say prejudice has been caused is not enough and it must also be shown in details how and why the prejudice has been caused, as was observed in the case of Sukha and Others Vs. The State of Rajasthan, . Where accused knew everything that was being urged and refuted the facts, he cannot be prejudiced. Even where the charge was not correctly framed but it was clear from the answer accused gave u/s 313 Code of Criminal Procedure that he understood exactly the case against him he was not prejudiced in any way.
39. Accordingly, apart from the aforesaid direct evidence, the circumstances and materials on record taken together form the chain so complete that there is no escape from the conclusion that the crime was committed by those accused persons and none else.
40. The Id. court below convicted the said three accused persons Under Sections 120B/302/34 IPC, sentenced them to suffer imprisonment for life and to pay fine of Rs. 5000/- -each i.d. to R.I. for one year each u/s 302/34 with the observation that both the sentences will run concurrently and did not pass any separate sentence u/s 120B IPC. There is no provision for imprisonment in default of fine to run concurrently with a substantive sentence of imprisonment awarded for any offence and as such that part of the order of sentence being erroneous is required to be modified by deleting the same.
41. As such, there being no material to interfere with the findings of the Id. court below, all the three Appellants viz. Bhabani Shaw, Ramlal Chowdhury and Ramraj Shaw deserve to be dismissed and the order of sentence is required to be modified to the extent as pointed out above.
42. As regards the appeal being G.A. 13 of 2001 preferred by the State against Bhim Shaw, Mr. Safiullah on citing the case of state of Punjab v. Karnail Singh, reported in 2004 SCC (Cr.) 135 and on taking us through the evidence of P.Ws. 14, 16, 17, 19 and 23, contended that when there are sufficient materials against accused Bhim Shaw indicating his involvement in the crime, he should also have been convicted and accordingly the order of acquittal passed by the Id. Court below should be set aside. Mr. Basu, on the other hand, contended that the materials on record do not justify in interfering with the order of acquittal.
43. There is no embargo on the appellate court reviewing the evidence upon which an order or acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the quilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, the paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are completing and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference, as was held in the case of karnail singh (supra).
44. The present case, as discussed earlier, does not rest upon dying declaration alone but upon direct evidence coupled with circumstances. In the said dying declaration (Ext. 45) the victim suspected five accused persons on account of active enmity and out of the said five Bhim is one of them whose name does not find place in the evidence of the eyewitness P.W. 21 who found Ramlal, Bhabani, Ramraj, Mahabir (since deceased) and a stranger carrying a jar which is buttressed by the testimony of P.W. 15, who, of course, did not utter the name of Mahabir. Overt acts may properly be looked at as evidence of the existence of a concerted intention and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out. On the other hand, the necessary conditions for the application of Section 34 of the Code, as observed in the case of Gurdatta Mal and Others Vs. The State of Uttar Pradesh, . are common intention to commit an offence and participation by all the accused in doing act or acts in furtherance of that common intention. If these two ingredients are established all the accused would be liable for the said offence. Once it is found that a criminal act was done in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it were done by him alone. As held by the Apex Court in the case of Suresh and Another Vs. State of U.P., . an act, whether covert or covert in indispensable to be done. The accused who is to be fastened with liability on the strength of Section 34 should have done some act which has nexus with the offence. In such circumstances, when there is a conflict between the direct evidence and circumstantial evidence, the former is preferable and acceptable.
45. Accordingly, there appears to be no infirmity with the findings of the Id. Court below regarding failure of the Prosecution to prove the charge against Bhim beyond reasonable doubt and as such the question of upsetting the order of his acquittal as passed by the Id. Court below is out of the way. So, this appeal too deserves to be dismissed.
46. In the premises, the appeals being CRA 321/2000, CRA 328/2000 and CRA 334/2000 preferred by accused Bhabani, Ramlal and Ramraj respectively and G.A. 13/2001 preferred by the State be dismissed. The order of conviction and sentence of the aforesaid three accused persons passed by the Id. Court below is hereby confirmed with the modification in the order of sentence that the words "Both the sentences will run concurrently" stand deleted therefrom.
47. Alamats, if any, be destroyed after the period of appeal is over.
48. Let a copy of this judgment along with the LCR be sent down at once to the Id. Court below.
49. I Agree.