Jahangir Seikh vs The State of West Bengal

Debasish Kar Gupta, J.—1. This appeal is directed against order of conviction dated January 21, 2002, of the appellant for commissioning of offences punishable under Sections 307/326 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and two separate sentences dated January 22, 2002, for commissioning of the above offences, i.e. to suffer rigorous imprisonment for eight (8) years and to pay a fine of Rs. 3000/- in default to suffer rigorous imprisonment for further period of six months as also to suffer rigorous imprisonment for a period of four (4) years and to pay further fine of Rs. 1000/- in default to suffer rigorous imprisonment for another period of four (4) months, respectively in Sessions Trial No. 1 of June, 2001 arising out of Sessions Serial No. 14/2001, by the Additional Sessions Judge, Kandi, Murshidabad. The period of substantive sentences as recorded hereinabove were directed to run concurrently. In the event of realization of above fine, the same was directed to be paid to the injured person, namely, Jane Alam by way of compensation under the provision of Section 357 of the Cr.P.C. The detention of the appellant in pre (and post) trial period was directed to be set off in accordance with the provision of Section 428 of the Cr.P.C.

On April 23, 1996, at 09.00 hours, one Md. Jane Alam (PW 2, the injured person) went to field lying and situated at village-Masundi, J.L. No. -14, Anchal No. -III, Sub Division-Kandi, District-Murshidabad for inspection of his above land. A quarrel took place there between him and the appellant in connection with digging of dyke on his land. Thereafter, he was returning home from his aforesaid land. Suddenly, the appellant assaulted the aforesaid injured person with a sharp ''henso'' (sickle like weapon) on all over his body. As a result the above person fell down on the field with profuse bleeding from the injured portions of his body. He became senseless. His two brothers, namely, Md. Samsul Alam and Sabadi Sk, who had been working in their respective plots of land nearby, rushed to this spot hearing the screaming of the victim. The appellant fled away from the place of occurrence. The another brother of victim Md. Rafiqul Alam (PW 1, the de facto complainant) came to the place of occurrence within a short period of time. The aforesaid three brothers of the victim initially took him to the Bharatpur Block Primary Health Centre, District-Murshidabnad. Considering the seriousness of condition of the injured person, he was transferred to Kandi SD Hospital, District-Mushidabad. He was under treatment of the medical officer of the above Hospital (PW 6) for a period of 23 days as an indoor patient. According to the treatment papers issued by the above Primary Health Centre, he sustained following injuries:--

"1) A fresh lacerated cut injury present below the left ear on the upper part of the left side of the neck measuring 1 1/2" x 3/4" x 3/4".

2) Another fresh cut injury with laceration was present at the base of the left thumb measuring 1/2" x 1/4" left thumb amputation had done (left thumb not found). Active bleeding from the cut end present.

3) Another sharp cut injury on the right palm at the base of the right thumb measuring 1 1/2" x 1/2" x 3/4".

4) Another cut injury with laceration was present on the ventral surface of the left forearm nearly four finger above the wrist joint measuring 1" x 3/4"."

The PW 1 lodged a written complaint to the Officer-in-Charge Bharatpur Police Station, District-Murshidabad, on April 25, 1996 at 20.15 hours. It was stated in the above complaint that there was delay in lodging the complaint which was due to the serious condition of the victim and to remove him to Kandi SD Hospital, Murshidabad, for his treatment properly.

Formal FIR bearing Bharatpur P.S. Case No. 22/96 dated April 25, 1996, was lodged against the appellant for commissioning of offence under Sections 326/307 of the I.P.C. The above FIR was forwarded to the Court on April 26, 1996. Sanat Kumar Konar, S.I., who was the Officer-in-Charge of aforesaid Bharatpur Police Station, took up the investigation of the case. He prepared a rough sketch map of the place of occurrence on April 25, 1996. After completion of investigation a charge-sheet No. 30 dated September 7, 1996, was submitted in the above case against the appellant for commissioning of offence under Sections 326/307 of the I.P.C.

Charge was framed against the appellant on June 1, 2001, for commissioning of offence under Sections 326/307 of the I.P.C. Seven (7) prosecution witnesses were examined in course of trial. The impugned judgment, order of conviction and sentence were passed after taking into consideration of the evidence on record.

It is submitted by Mr. Sashanka Sekhar Ray, learned Counsel appearing for the appellant, that the conviction of the appellant under Sections 326/307 of the I.P.C. cannot be sustained in law due to the errors and infirmities in the decision making process of the learned trial Judge as follows:--

"(i) Though the walking distance of the Bharatpur Police Station from the alleged place of occurrence was 4/5 minutes, there was delay of two days after commissioning of the offence to lodge the FIR. The above unreasonable delay should have been viewed with suspicion;

(ii) The charge of commissioning of offence framed against the appellant was not proved beyond reasonable doubt. The prosecution failed to prove that the PW 4 witnessed the commissioning of offence by the appellant to assault the PW 2. He (PW 2) did not disclose the name of the appellant to the PW 6 accusing him for assaulting him and/or to sustain injury therefor. The injury register of the hospital concern was not signed by him. His statement was not recorded by the investigating agency under Section 164 of the Cr.P.C. There was no recovery or seizure of weapon of offence. Withholding of evidence of two brothers of the PW 2, namely, Md. Samsul Alam and Sabadi Sk (claimed to be eyewitnesses), who had removed him to the hospital, leads to doubt and suspicion in respect of the prosecution case;

(iii) There was strong possibility of sustaining injury by the PW 2 from an accident felling down on the corrugated tin sheet used for covering shallow tube-well lying on the field of one Mahir Sk situated nearby the place of occurrence in view of the evidence of PW 6 (the doctor), who had treated PW 2. There were contradictions of the evidence of PW 1 and PW 4.

(iv) The learned trial Judge was in error in convicting the appellant for commissioning of offence under the provisions of Sections 326/307 of the I.P.C. simultaneously on the ground of causing grievous injury on the body of the PW 2 at the same time on the ground of making an attempt to commit murder."

On the other hand it is submitted by Mr. Ranabir Roy Chowdhury, learned advocate appearing on behalf of the State respondent, that the impugned order of conviction and the sentence were passed after due consideration of the evidence (both oral and documentary) on record.

According to Mr. Roy Chowdhury, the cause of delay had fully been explained in the FIR as also the evidence of PW 1.

According to him, The evidence of PW 4 was also corroborating with the evidence of PW 2. The treatment of the PW 2 under the PW6 in Kandi SD Hospital, Murshidabad, for 23 days as an indoor patient for sustaining the injury under reference was proved on the basis of the evidence of PW 6 as also from the treatment papers produced by him. The above evidence was corroborating with the evidence adduced by PW 1, who was all along with him during his treatments. The PW 2 could not sign the injury register of the hospital due to sharp cut injury on his right palm. Though the name of the appellant did not surface from the treatment papers of the Hospital concerned, his statement was recorded under Section 161 of the Cr.P.C. in course of investigation. He adduced evidence in course of trial. According to Mr. Roy Chowdhury, merely because two eyewitnesses, namely Md. Samsul Alam and Sabadi Sk were not examined by the prosecution, the trial court was right not to draw an adverse inference that if they were examined, they would have given a contrary version. It is further submitted by him that there was no evidence on record in support of causing of any doubt in implicating the appellant falsely by suppression of the name of a person who had assaulted him.

According to Mr. Roy Chowdhury, the attempt of making a story by the defence of the causing of injury of the PW 2 consequent upon meeting an accident felling on a corrugated tin sheet could not be accepted taking into consideration the location of the shallow pump from the rough sketch map prepared by the investigating officer (PW 7).

It is also submitted by Mr. Roy Chowdhury that the conviction of the appellant for commissioning of offence punishable under Sections 326/307 of the I.P.C. could run simultaneously because the commissioning of offence by the appellant punishable under both the aforesaid sections had been proved beyond any reasonable doubt.

Reliance is placed by Mr. Roy Chowdhury on the decisions of Sanjeev Kumar Gupta v. State of U.P., reported in , 2015 AIR (SCW) 3151, Brahm Swaroop v. State of U.P., reported in , 2011 (2) SCC (Cri) 923 and Amar Singh v. Balwinder Singh, reported in , 2003 SCC (Cri) 641 in support of his above submissions.

We have heard the learned Counsels appearing for the respective parties at length and we have give our anxious consideration to the facts and circumstances involved in this appeal to arrive at a conclusion in respect of the grounds involved in this appeal as follows:--

"A. Delay in lodging the FIR :

According to the settled proposition of law, any delay in lodging FIR would not automatically render the prosecution case doubtful. Any delay in lodging FIR is taken into consideration on the basis of the facts and circumstances of each case for the purpose of examining the question of causing doubt about the veracity of the prosecution case. In the matter of Tara Singh & Ors. v. State of Punjab, reported in , AIR 1991 SC 63, it was observed by the Hon''ble Supreme Court that for causing such doubt a host of circumstances like condition of the first informant, the nature of injury sustained, the efforts made to provide medical aid to the victim, the distance of the hospital etc. have to be taken into consideration. The relevant portion of the above decision is quoted below:--

"4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report of the police. At times being grief-stricken because of the calamity it may not immediately occur to them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case....."

(Emphasis supplied)

The above proposition of law was repeated and reiterated time and again by the Apex Court. The decision of Amar Singh v. Balwinder Singh (supra) relied upon by Mr. Roy Chowdhury went such cases.

Taking into consideration the explanation for delay in lodging the complaint as available from the letter of complaint itself, the nature of injury sustained by PW 2 as also the evidence of PW 1 and PW 6 we are not inclined to accept the submissions made on behalf of the appellant that the delay in lodging the FIR could render the prosecution case doubtful.

B. Reasonable doubt in respect of the prosecution case, if any :

Regarding the question of credibility of the evidence of interested witness, in the matter of Sarwan Singh & Ors. v. State of Punjab, reported in , (1976) 4 SCC 369, the Hon''ble Justice S. Murtza Fazal Ali, as His Lordship then was, speaking for a three Judges Bench of the Hon''ble Supreme Court, observed that even though an eyewitness might have belong to the group of the deceased and that witness came from one particular group was sufficient to show the interested nature of evidence. But it was not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. All that the Courts required as a rule of prudence, not as a rule of law, was that the evidence of such witness should be scrutinized with a little care. It was further observed in the above decision that there might be circumstances where only interested evidence might be available and no other, e.g. when an occurrence took place in absence of no other witness, but once such witness was scrutinized with a little care and the Court was satisfied that the evidence of the interested witness have a ring of truth such evidence could be relied upon even without corroboration. The relevant portion of the above decision is quoted below:--

"10..... Moreover, it is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of an approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such, but the courts requires as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness."

(Emphasis supplied)

It was decided by the Hon''ble Supreme Court in the decision of Alamgir v. State (NCT, Delhi), reported in , 2003 SCC (Cri) 165 that reliability of a witness could not be questioned on the ground that he was an interested witness in the event the evidence was otherwise acceptable. It was further observed that in the event of some omission on the part of the police official, rejection of otherwise creditworthy and acceptable evidence was not sustainable in law. The relevant portion of the above decision is quoted below:--

"13. ....This evidence of Shamim Bano has been challenged on two counts: on the first Shamim Bano, being the sister of Halima, was an interested witness and secondly, she did not say so in a statement before the police under Section 161 Criminal Procedure Code Interested witness by itself cannot possibly be a ground to reject the evidence on record. The test of creditworthiness or acceptability, in our view, ought to be the guiding factor and if so, question of raising and eye-brow on the reliability of witness being an interested witness would be futile - in the event the evidence is otherwise acceptable, there ought not to be any hindrance in the matter of prosecutor''s success. The evidence must inspire confidence and in the event of unshaken credibility, there is no justifiable reason to reject the same. It is on this score the issue of interested witness thus stands negated, as raised by the appellant. The second limb pertains to the statement under Section 161 Criminal Procedure Code. Admittedly, this piece of evidence was not available in the statement of the witness under Section 161 Criminal Procedure Code, but does it take away the nature and character of the evidence in the event there is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence - the answer, in our view, cannot but be in the negative In that view of the matter, the evidence of PW 6 thus ought to be treated as creditworthy and acceptable and it is to be seen the effect of such an acceptability."

(Emphasis supplied)

It appears from the evidence of PW 4 that at the time of occurrence, he had been working in a field which was situated at a distance of about one bigha. His evidence was fully corroborating with that of PW2. He was not shaken during cross-examination. In view of the above, we do not find any substance in the submission made on behalf the appellant with regard to the creditworthiness of his evidence.

Regarding the creditworthiness of an witness who had sustained injury arising out of the assault caused by the accused, the Apex Court observed in State of Uttar Pradesh v. Naresh & Ors., reported in , (2011) 4 SCC 324 as under:--

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"

(Emphasis supplied)

Taking into consideration the evidence of the PW 2, we find that though he had not stated the name of the appellant to the PW 6 (the doctor), but after further consideration of his statement recorded under Section 161 of the Cr.P.C, his evidence adduced in court and corroboration of the same with that of the PW 4 (eyewitness), his nature of injury recorded in his treatment papers of Kandi SD Hospital, Murshidabed, the evidence of PW 6 with regard to the nature of injury and his opinion regarding the cause of his injury, we find relevancy and efficiency in his evidence. Necessary to point out that his signature could not be obtained in the injury register of the Hospital due to his sharp cut injury on the right palm. The omission of the police agency to record his statement under section 164 of the Cr.P.C. could not create any doubt in analysing his evidence before the learned trial Judge. We feel it necessary to observe that there was no error in the decision making process of the learned Court below in analysing the evidence of PW 2.

The wounds noticed by the doctor and his opinion about the weapon cannot be totally wiped out merely because the weapon of offence has not been discovered. As observed by the Apex Court in the decision of Anwarul Haque v. State of U.P., reported in , (2005) 10 SCC 581 and the relevant portion of the above decision is quoted below:--

"15. Eyewitnesses in the present case have described the knife, and merely because the knife has not been recovered during investigation same cannot be a factor to discard the evidence of PWs 1 and 2. Wounds noticed by the doctor (PW 3) also throw considerable light on this aspect. The doctor''s opinion about the weapon, though theoretical, cannot be totally wiped out. In that view of the matter the appellant has been rightly convicted under Section 324 IPC."

Regarding non-examination of more than one eyewitnesses, the observation made by the Hon''ble Supreme Court in Harpal Singh v. Devinder Singh, reported in , (1997) 6 SCC 660 is quoted below:--

"24. No doubt, Randeep Rana would have been a material witness. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is material witness. We do not see any justification, in this case, in drawing such an adverse inference due to non-examination of Randeep Rana (vide State of Karnataka v. Moin Patel)."

In view of the evidence available on record, as discussed hereinabove, merely because two brothers of the victim, namely, Md. Samsul Alam and Sabadi Sk, were not examined by the prosecution, no adverse inference could be drawn that if they were examined, they would have given a contrary version.

C. Implication of the appellant in a false case of assaulting PW 2 in connection with an injury sustained by him out of an accident :

In course of ascertaining the possibility of the above contention of the appellant, we find from the rough sketch map that a shallow tube well covered with corrugated sheet was found on the land of one Mahir Sk (marked as G) which was not a plot of land adjacent to that of place of occurrence (marked as C). One had to cross the land of one Hira Sk (marked as D) and that of the paddy land of Golam Ali (marked as E) to reach that shallow tube well. According to the evidence adduced by PW 2 in course of his examination-in-chief, the PW 2 fell down on the land of one Anish Sk after sustaining injury. The PW 1 was not an eyewitness. He heard the incident from PW 2 and another eyewitness PW 4. According to the evidence of PW 4, the location of the shallow tube well was the land belonging to Mahir Sk and the same was existing at a little bit away from the place of occurrence. According to the evidence of PW 6 (the doctor), the injuries as found might be caused by sharp heavy built instrument. That apart, the PW 1 and PW 4 were the witnesses at the incident of assaulting the PW 2 by the appellant at the place of occurrence hearing the shouting of PW 2. So, the decision making process of the learned trial Judge does not require our interference on the above grounds.

D. Conviction of the appellant for commissioning of offence provided under Sections 326 and 307 of the I.P.C. simultaneously :

This issue has already been decided by us in a judgment dated October 6, 2015, in the matter of Furkan Sk v. The State of West Bengal (in re: CRA 463 of 2014) and the relevant portion of the above judgment is quoted below:--

"The provision of Section 307 of the I.P.C. deals with attempt to murder. The essential ingredients of the offence under the above provision are follows:--

(i) The accused did some act;

(ii) Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.

For the last part of the offence the accused be guilty of murder was under sentence of life imprisonment when he committed the offence.

Further, when any person offending under this Section is under sentence of imprisonment for life, he may, if hurt is cause, be punished with death.

The provision of Section 326 of the I.P.C. deals with voluntarily causing grievous hurt by dangerous weapon or means having essential ingredients as follows:--

(i) Accused caused grievous hurt;

(ii) He caused it voluntarily;

(iii) He caused it by any of the following means:--

(a) by any instrument of shooting, stabbing or cutting;

(b) by any instrument, if used as a weapon of offence likely to cause death;

(c) by fire or heated substance;

(d) by poisonous or corrosive substance;

(e) by explosive substance;

(f) by any substance deleterious to the human body to inhale or swallow;

(g) by means of any animal.

Therefore, whether the culpability of the accused would fall under Section 307 or 326 of I.P.C. would depend upon presence of distinguishable essential ingredients in a case of commission of offence under any of the above provisions. But essential ingredients of offences under both the aforesaid provisions, i.e. Sections 307 and 326 of the I.P.C. cannot be present in case of commission of one and same offence."

From the evidence of PW 2, it transpired that the appellant assaulted him on the left side of his neck with the help of sharp edged ''henso'' (a sickle like weapon) as a result of which he fell down on the paddy land under reference. The appellant continued assaulting him with the help of the above ''henso'' and as a result his left thumb was cut off. He used his right hand to save himself for further assault and consequent thereupon received severe injury on his right palm and two fingers were injured. That apart, he received many cut injuries on his right hand out of the assault caused by the appellant. The appellant left the place of occurrence only after arrival of PW 1 and PW 4, amongst others, at the place of occurrence in response to the alarm raised by the PW 2. It was further evidence from the deposition of PW 2 that the above incident had been preceded by a quarrel in between him and the appellant arising out of cut of all/oil on the land of PW 2. The evidence on record suggested that the above act of the appellant was voluntary in nature. He was under treatment of PW 6 in the Kandi SD Hospital, Murshidabad for a period of 23 days. There was no cross-examination with regard to the aforesaid nature of injury on the body of the PW 2 coupled with allegation of exaggeration and embellishment. According to the evidence adduced in course of cross-examination, the PW 1 was all along with him during his above treatment. There was corroboration of the above evidence with that of the PW 1, in the treatment papers as also ocular evidences on record. The learned trial Judge arrived at a finding that the nature of injury sustained by PW 2 consequent upon assaulting by the appellant with the help of sharp ''henso'' (sickle like weapon) on his body were grievous in nature. Therefore, the charge framed against the appellant to cause grievous hurt to the PW 2 with ''henso'' (s sickle like weapon) resulting in grievous injury on his body and commissioning of offence punishable under Section 326 of the I.P.C. was proved beyond any reasonable doubt.

But there was no evidence on record to suggest that the above act of the appellant causing grievous hurt to the PW 2 was an outcome of his intention or knowledge to cause death of the PW 2, for that the appellant would be guilty of murder in that event. So, the essential ingredients of commissioning of offence by the appellant punishable under the provision of Section 307 of the I.P.C. was not proved beyond any reasonable doubt.

Therefore, in the light of the above discussion and observations, the impugned judgment is required to be interfered with only to the extent of setting aside of conviction of the appellant for commissioning of offence punishable under Section 307 of the I.P.C. as also the sentence imposed upon him thereto together with the fine and default cause and those are quashed and set aside. The other part of the impugned conviction punishable under Section 326 of the I.P.C. together with the fine and default clause remained unaltered.

This appeal stands disposed of accordingly.

Let this judgment together with the Lower Court''s records be sent back to the learned Court below expeditiously.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.

Md. Mumtaz Khan, J.—I agree.