Jahangir Laskar And Others vs State Of West Bengal & Ors

These two appeals are by two of the convicts who have been found guilty and sentenced to undergo imprisonment on different counts for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. They are Jahangir Laskar, the second accused who has instituted CRA 549 of 2009 and Akram Purkait @ Akram Ali Purkati @ Nono, the 4th accused who has instituted CRA 262 of 2009.

The sum and substance of the prosecution case is that on 8.11.2005 at about 8.00 P.M., there was a sequence of incidents in the premises of a school which is stated to be the scene of occurrence, which led to the death of Mohsin Sk. and another person who was not identified at that point of time and later identified as Sanyasi Ghorami / Sanyasi Halder. The First Information Report was registered on the statement given by the PW-1. PW-2 is the widow and PW-3 and PW-4 are the children of Mohsin Sk.

The substance of the allegations is that while the victim and others were playing cards on the verandah of the school, bombs were hurled and there was cross firing in the incident which ultimately culminated in the death of Mohsin Sk. and the other person. The Trial Court acquitted the accused person nos. 1 and 3, Habibar Rahaman Khan and Raich Mondal and convicted the other two persons who are the appellants before us.

The learned counsel appearing for the appellants, Jahangir Laskar and Akram Purkait argued for the position that the trial court had completely relied on the version of PW-9 and disbelieved all other witnesses, thereby confining reliance only on the evidence of PW-9 to enter conviction as against the appellants. They argued that PW-9 is a police constable whose presence at the scene of occurrence for the purposes which he has mentioned as also the credibility of his deposition are so shabby that it is ridden with un-reliability and cannot be accepted for reasons more than one. They impeached the reliance placed by the Court below on the testimony of PW-9. It is also specifically pointed out that though PW-9 attempted to identify the accused persons in the Court there was no Test Identification Parade earlier though there were large number of persons in the scene of occurrence either as part of playing cards or having been involved in the incident which could be attributed to various persons resulting in the loss of two lives. It is further argued that according to the investigating officer, Akram Purkait, the fourth accused was identified by Raich Mondal who is the third accused and that Akram Purkait was listed as an accused on the basis of the statement of co-accused, Raich Mondal. Akram Purkait has been convicted while Raich Mondal has been acquitted. It is further argued by the advocates appearing in both the appeals for the appellants that the totality of the evidence on record never inspired the confidence particularly when even according to PW-9 he had suffered injuries in the form of incised wounds and he had also blood stains on his clothes while he was in civil dress at the scene of occurrence. It is argued that those allegedly blood stained clothes of PW-9 were neither recovered, produced or proved in evidence to at least establish the presence of PW-9 in the scene of occurrence as a reliable witness. No wound on PW-9 as stated by him has been proved through medical evidence, no treatment certificate relating to PW-9 has been placed on record. This taken along with the fact that PW-9's evidence on the whole is totally shabby having regard to the quality of his deposition as to the different activities carried out by him during the incident, definitely ought to have led the Court below not to rely on him.

Learned Advocate for the State supported the judgment and argued for the position that the evidence of the widow and children of Mohsin Sk. is trustworthy and they are truly eye witnesses who can be relied upon. She argued that there is nothing wrong in PW-9 stating about the incident because his presence in the scene of occurrence is not to be doubted at all. The further argument advanced in support of the impugned judgment is that the presence of the victims at the scene of occurrence are spoken to by PW2, PW-3, PW-4 and also by PW-1 who was also involved in playing cards along with the victims and hence the connecting materials were sufficient enough to sustain the conviction of at least Jahangir Laskar and Akram Purukait even if the other accused persons have been acquitted.

We have bestowed our anxious consideration to the evidence on record both documentary and oral. The Court below had evidently relied upon heavily on the testimony of PW-9. The salient features of his testimony have to be analysed. He is a police constable. He says that he was on duty in the regular course of his official function, though there was no GD entry or any other movement registration in the police station to show the movement of police personnel. He said that he was there to protect one of the victims, namely, Mohsin Sk. and he saw the persons who were present there playing cards on the verandah of the school. His testimony is that he was also injured with an incised wound on his head and that he had to have three stitches as the curative process. There is no medical evidence on record regarding his treatment or his injuries. He said that he had stained clothes. The investigation Officer had not recovered his clothes. PW-9 as a member of the police force did not choose or find it necessary for himself to make available his clothes to the Investigation Officer for the purpose of investigation of this case.

The narration of PW-9 as regards the incident cannot be accepted for reasons more than one. His version is that immediately after the blast he went to the police camp behind the school and brought the weapon and he also fired on the mob. The availability of the weapon with him while he was not in uniform and the transit for collecting the weapon and bringing the weapon from the police camp are not matters proved by documentary evidence which are required to be maintained in the regular course of official business of the police station. That notwithstanding there was the version that immediately following the blast, there was a bullet shot fired which resulted in one person falling down and that the said individual had with him a bag which carried bombs and those bombs went off when that person fell on the floor. With such sequence of events being brought on record, the testimony of PW-9 alone is insufficient to sustain the conviction of the appellants.

The evidence of PW-2, PW-3 and PW-4 who are the widow and children of Mohsin Sk., taken at the best of their face value would only show that they had seen Mohsin Sk. playing cards and had heard the bomb blast and thereafter had identified the victim. There is no indication in their evidence which could pointly inculpate the accused persons who are the appellants before us by their identity being established through due process.

As rightly argued by the learned counsel for the appellants, the acquittal of Raich Mondal, goes a long way against the conviction of Akram Purokait. This is because Akram was brought into the case only on the so called disclosure of Raich Mondal to the investigating officer. It is also worthy to note that the testimony of PW-9 when contrasted with the testimony of the investigating officer does not inspire confidence to say that PW-9 is a witness who is speaking the entire truth in a manner that would jell with the sequence of events that can be expected in such a scene of occurrence. We say this more importantly because notwithstanding the fact that PW-9 is a police constable, he did not choose to give FIR statement and lodge the FIR in spite of Section 39 of the Code of Criminal Procedure which applies to every person. In so far as its application to duties of police officials is concerned, it should be treated as more rigorous. The FIR was taken from PW-1 who is a tea maker in a tea stall and who had been stated to be playing cards in the fateful evening at the scene of occurrence.

On the whole, we are of the view that the accused person nos. 1 and 3 namely, Habibar Rahaman Khan and Raich Mondal respectively having being acquitted, there is no different yardstick available to convict accused person nos. 2 and 4 namely Jahangir Laskar and Akram Purkait @ Akram Ali Purkati @ Nono, particularly when there was no Test Identification Parade which could bring credibility to the identity of the persons who are arraigned and put to trail.

For the aforesaid reasons, the impugned orders of conviction and sentence do not stand. In the result, these appeals are allowed and the conviction and sentence imposed on the accused persons namely, Jahangir Laskar and Akram Purkait @ Akram Ali Purkati @ Nono are set aside.

They are to be released immediately unless their custody is warranted in connection with some other cases.

Accordingly, these two appeals being CRA 549 of 2009 and CRA 262 of 2007 along with all the connected applications are disposed of.