Mamlot @ Mojammel Sk vs State Of West Bengal

Asha Arora, J

Challenge in this appeal is to the judgement and order of conviction and sentence dated 26.02.2008 and 27.02.2008 passed by the Additional Sessions Judge, 2nd Court, Nadia at Krishnagar in Sessions Trial No. I(VII) of 2007 arising out of Sessions Case No. 46(6) of 2007 whereby the appellant/accused was convicted for the offence punishable under Section 302 IPC and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000/- in default of which to suffer simple imprisonment for one year for the aforesaid offence.

The facts in brief leading to the present appeal may be summarized as follows :

On 24.01.2007 at 19.25 hours one Md. Eraj ali Sk. (PW-1) lodged a written complaint at Debogram R.O.P. which was forwarded to the Officer-in-Charge of Kaliganj P.S. for starting a case and the said complaint was received at the Police Station on the same date at 22.15 hours. According to the written complaint (exhibit-1), on 24.01.2007 at about 5.10 p.m. the defacto complainant's son Habibur Sk. alias Patal Sk. was assaulted on his head by the appellant/accused with a sharp cutting axe over the issue of plucking plums from a plum tree. In consequence of the assault the victim was seriously injured and was taken to Debogram Primary Health Centre wherefrom he was referred to Saktinagar District Hospital in precarious condition. On the basis of the aforesaid written complaint, Kaliganj P.S. Case No. 19 dated 24.01.2007 was initiated under Section 326/307 IPC against the accused/appellant. Subsequently, on the same date the victim succumbed to the injuries. Investigation culminated in the submission of the charge-sheet under Section 302 IPC against the accused/appellant.

The trial court framed charge for the offence punishable under Section 302 IPC against the accused/appellant who pleaded not guilty to the arraignment in consequence of which trial commenced. In course of trial prosecution examined thirty-two witnesses and relied upon several documents which were marked as exhibits.

Defence version as projected from the suggestions given to the prosecution witnesses in cross-examination as well as from the answers given by the accused/appellant during his examination under Section 313 CrPC is innocence, denial of the prosecution case and false implication. The specific defence case endeavoured to be set up by the accused/appellant as is evident from the answer given by him during his examination under Section 313 CrPC in response to question No.3 is that on the relevant date at noon the accused was cutting a branch of a plum tree for the custom of "Musolmani" of his son and Patal Sk. who was then under the said plum tree abused him. At that time a branch of the plum tree fell on the head of Patal Sk. in consequence of which he was injured and the accused fled away due to fear. No evidence was, however, led by the accused in support of such plea.

On the basis of the evidence on record the trial court convicted the accused/appellant for the offence punishable under Section 302 IPC and sentenced him as aforesaid.

Castigating the prosecution case on several counts, Mr. Bhattacharya, learned counsel appearing for the appellant strenuously argued that the evidence of the five witnesses sought to be projected as the eye witnesses cannot be relied upon since their presence at the place of occurrence is doubtful. It is canvassed that the names of these witnesses does not find place in the FIR lodged by PW-1 nor do their names appear in the testimony of PW-1. It is pointed out that the defacto complainant (PW-1) father of the deceased claims to be an eyewitness but there is no whisper in the FIR that the incident occurred in his presence. Placing reliance on the case of Ram Kumar Pandey Versus State of Madhya Pradesh reported in (1975) 3 Supreme Court Cases 815 (paragraphs 8 and 9), learned counsel for the appellant contended that failure to mention the names of the eye witnesses in the FIR is detrimental to the prosecution case. Learned counsel sought to impress that the evidence of the defacto complainant is an improved version since it is not mentioned in the FIR (exhibit-1) that there was a quarrel between the accused and the deceased at about 9/9.30 a.m. on the date of the incident over the issue of plucking plums. Further submission is that many of the witnesses examined by the prosecution are related to deceased and hence interested witnesses. Learned counsel argued that the alleged recovery and seizure of the weapon of offence at the instance of the accused/appellant has not been supported by any of the seizure witnesses. Referring to the evidence of PW-31 the medical officer who examined the victim at Krishnagar District Hospital on 24.01.2007, learned counsel submitted that the defence case is supported by the opinion of this medical officer who conceded in his cross-examination that "this type of injury may be caused if a heavy branch of a tree falls over one's head". A faint attempt has been made to impress that the alleged incident was the fallout of a quarrel over a trivial matter there being no intention to kill so the act would at best constitute an offence under Section 304 Part I IPC.

Per contra, learned advocate appearing for the State submitted that the evidence of the eye witnesses corroborated by the medical evidence of PW-20, PW-21 and PW-31 proves the prosecution case beyond any shadow of doubt.

It is not in dispute that on the date of incident there was a quarrel between the accused/appellant and the deceased. According to the appellant, the quarrel was over the issue of cutting branches of a plum tree whereas prosecution version is that the quarrel was with regard to plucking of plums from a plum tree and the incident of assault upon the deceased resulting in his death was the outcome of such quarrel. Prosecution case mainly hinges on the evidence of six eye witnesses namely, PW-1, PW-5, PW-6, PW-15, PW-26 and PW-27. It is to be determined whether the evidence of these witnesses is credible and trustworthy. PW-1 is the father of the deceased who lodged the FIR. This witness narrated the incident in the following manner which is quoted hereinbelow :

"On the relevant date and time I was standing beneath the Radhakantapur Railway Gate and my son was sitting under the pillar near the tea stall of Habibur of my village and gossiping with Akchar Mondal. At that time ten to twelve persons were present in the tea stall or around the tea stall. At that time, accused Mamlod assaulted my said son on his head by axe in my presence and he assaulted my said son on his body i.e. on his right arm and waist and fled away through the railway track. On seeing this I rushed to my said son and found that he was lying in bleeding condition and I along with some other persons took him to Debogram hospital for his treatment."

PW-1 further testified in his evidence that he came to know about the death of his son over telephone at about 7 p.m. after returning home. This witness (PW-1) also stated in his evidence that on the relevant date at about 9/9.30 a.m. there was a quarrel between his son and the accused over the issue of plucking plums from the plum tree. PW-1 was cross-examined in extenso but his evidence remained unscathed on the touchstone of credibility. Nothing could be elicited in the cross-examination of PW-1 to discredit his sworn version of the incident. PW-1 categorically denied the defence suggestion that while the accused was cutting the branches of a plum tree, deceased raised protest and the said branches fell on his head in consequence of which he sustained injuries. Curiously enough, no suggestion was given to PW-1 in cross-examination disputing his presence at the scene of occurrence. There is therefore no merit in the argument that the evidence of PW-1 projected as an eye witness is not believable since the FIR does not speak about his presence at the place of occurrence. At this juncture it is significant to mention that there is nothing in the FIR which negates the presence of PW-1 at the time of incident. It is nowhere mentioned in the FIR that the defacto Animireddy Venkata complainant (PW-1) heard about the incident from someone else. The fact that the names of the eye witnesses do not figure in the FIR or that it has not been specifically mentioned in the FIR that the defacto complainant was present at the time of incident does not render their evidence doubtful. There is also no substance in the submission that the evidence of PW-1 is an improved or exaggerated version since all details including the time of quarrel as stated by him in his evidence did not find place in the FIR. It is a well-settled principle of law that FIR need not contain an exhaustive account of the incident. In the case of Ramana and Others Versus Public Prosecutor, High Court of Andhra Pradesh reported in (2008) 5 Supreme Court Cases 368 the Supreme Court reiterated the settled legal position that FIR need not be encyclopaedic. Each and every detail of the incident need not be stated therein. It may be sufficient if the broad facts of the prosecution case are mentioned therein. It has further been observed in paragraph 13 of the aforesaid case that while considering the effect of some omissions in the FIR on the part of the informant, a court cannot fail to take into consideration the probable physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellant. Only with a view to test the veracity of the correctness of the contents of the FIR, the court applies certain well-known principles of caution. In Motiram Padu Joshi and Others Versus State of Maharashtra reported in (2018) 9 Supreme Court Cases 429 the Supreme Court observed as follows in paragraphs 13 and 14 of the judgement quoted hereinbelow :

"13. Evidence of PWs 3 and 4 is sought to be assailed on the ground that their names were not mentioned in the first information report (FIR) and that they are interested witnesses. Of course, names of PWs 3 and 4 were not mentioned in the FIR. Deceased Machindra was critically injured and when he was taken to the police station, on seeing his serious condition, the deceased was sent to the hospital along with Police Constable Mhatre. PW-2 remained in the police station to lodge the complaint and his statement was recorded. His brother having been critically injured, PW 2 must have been in a disturbed mind and must have been in a hurry to rush to the hospital to save his brother. Non-mention of the names of eyewitnesses (PWs 3 and 4) in the FIR should be examined in the situation in which PW 2 was placed."

"14. Furthermore, as pointed out by the High Court, FIR is not an encyclopaedia which should contain all the details of the incident. FIR is not an encyclopaedia which is expected to contain all the details of the prosecution case. It may be sufficient if the broad facts of the prosecution case about the occurrence appear. Omission as to the names of the assailants or the witnesses may not all the times be fatal to the prosecution, if the FIR is lodged without delay. Unless there are indications of fabrication, the court cannot reject the prosecution case as given in the FIR merely because of omission. In the present case, FIR was registered without delay and prompt registration of FIR itself lends assurance to the prosecution case. The object of the FIR is to set the law in motion. Omission to give the names of assailants or the names of witnesses in the FIR is not fatal to the prosecution case. The High Court was right in observing that non-mention of the names of eyewitnesses in the FIR can hardly be fatal to the prosecution case."

In the case in hand, the FIR (exhibit-1) which was lodged promptly without inordinate delay contains all the relevant and essential particulars regarding the incident. The fact that PW-1 gave a few more details in his evidence does not render his testimony untrustworthy.

Regarding the contention on behalf of the appellant that PW-1 and some other witnesses being related to deceased are interested witnesses, the Supreme Court has time and again iterated that relationship is not a ground to reject or discard the evidence of a witness who is otherwise found to be truthful and trustworthy. On the contrary, it is most unlikely that a close relative of deceased would spare or shield the real murderer and falsely implicate an innocent person. In the given facts of the present case, the evidence of PW-1 is found to be credible and trustworthy. Nothing could be brought on record during the cross-examination of this witness to show that he had an axe to grind against the accused for falsely implicating him.

Coming to the evidence of the other eye witnesses namely, PW-5, PW-6, PW-15, PW-26 and PW-27 it may be useful to quote the relevant portion of the evidence of PW-5 who testified regarding the incident in the following words quoted hereinbelow :

"I knew Patal Sk. of my village, who was murdered in front of the tea stall of Habibur on the western side of Radhakantapur Railway gate at about 4-30 to 5 p.m. At that time I was in front of the tea stall of said Habibur. At that time I along with Patal, now deceased and Jerafat were sitting in front of the tea stall with Habibur. After taking tea, at that time Mamlot armed with an axe struck Patal on his head by the said axe and I heard the sound, then I noticed that Patal fell down. Thereafter, Mamlot again struck with the said axe on the person of Patal. Thereafter, the said Mamlot fled away from that place with the said axe. After the incident, Patal had no capacity to talk and thereafter he was taken by a van to the daktar. At night, I heard that said Patal had expired at Krishnagar Saktinagar hospital."

It is pertinent to mention that the name of PW-6 Jirafat Sk. finds place in the evidence of PW-5 who is an independent eyewitness not related to deceased. PW-5 also stated in his evidence about the presence of Habibur (PW-2) at the time of incident but this witness (PW-2) turned hostile during the trial. At this juncture it may be significant to refer to the testimony of PW-1 who specifically stated in his evidence that at the time of incident ten to twelve persons were present at or around the tea stall. Reverting to the testimony of PW-5 it transpires that this witness corroborated the evidence of PW-1 on material particulars regarding the incident. Despite searching cross-examination, no dent could be made in the sworn version of PW-5. PW-6 deposed regarding the incident in the same voice. The relevant portion of the evidence of PW-6 is quoted hereinbelow :

"I knew Patal Sk. of my village who was murdered on the 10th Magh last at about 5 p.m. in front of the tea stall of Sahabuddin. I do not know the name of the son of Sahabuddin. At that time, Patal Sk., now deceased, Akchar and myself were in front of the said tea stall. At that time we were gossiping after taking tea. At that time, Mamlot assaulted Patal on his head by an axe and Mamlot again for the second time struck Patal on his left shoulder by that axe and it was dragging down. Thereafter, the said Mamlod fled away."

Nothing has surfaced in the cross-examination of PW-6 to render his evidence untrustworthy. He deposed naturally without any exaggeration. No material contradiction could be pointed out in the evidence of this witness in relation to his statement under Section 161 CrPC. PW-6 is an independent eye witness who had no reason to depose falsely against the accused/appellant. No motive could be attributed to these two witnesses for falsely implicating the accused. The evidence of PW-5 and PW-6 inspires confidence. PW-15 testified regarding the incident in the following manner :

"On the relevant date and time I was about to come near the Radhakantapur rail gate and I noticed that Patal was sitting in front of the said tea stall. Then I noticed that Mamlot suddenly came there and assaulted Patal on his head by an axe. (Bhatabhat). Then the nearby persons viz. Jerafat, Aksar and Obaidullah and others took Patal to the hospital for his treatment, but I did not accompany Patal."

Though distantly related to the deceased, there is no reason to disbelieve the evidence of PW-15 who deposed naturally without any exaggeration. Being quizzed in cross-examination PW-15 asserted that on the relevant date and time he was coming from his house towards Radhakantapur rail gate. Nothing could be elicited in the cross-examination of PW-15 to render his evidence untrustworthy. PW-26 and PW-27 deposed in conformity with the other eye witnesses. Nothing could be brought on record in the cross-examination of these two witnesses to show that they had any grudge against the accused for deposing falsely against him. No material contradiction could be pointed out in the evidence of these two witnesses.

PW-26 narrated the incident in just a few words quoted hereinbelow :

"I knew Habibur Rehman @ Patal of my village. The said Habibur was murdered on the 10th Magh at about 4.30 to 5 P.M. near the Radhakantapur Rail gate in front of the tea stall of Sahabuddin. At that time I was sitting in front of the tea stall.

At that time I noticed that Mamlot Seikh suddenly assaulted Patal on his head by an axe and fled away with the said axe from that place."

PW-27 corroborated the version of the other witnesses in the following words :

"I knew Patal who was murdered on the 10th Magh at about 4.30 to 5 P.M. in front of the Radhakantapur Rail gate as well as in front of the tea stall of Sahabuddin. At that time the said Patal was sitting there and I was also sitting in front of the said tea stall.

Suddenly Mamlot came there and assaulted Patal on his head by an axe and fled away from that place with the axe."

Nothing has surfaced in the cross-examination of these two witnesses to render their presence at the place of occurrence doubtful. Though it has been argued on behalf of the appellant that the presence of the eye witnesses at the place of occurrence is doubtful, surprisingly, no suggestion was given to any of these witnesses in cross-examination disputing their presence at the time of incident. For the reasons discussed, the evidence of the eye witnesses is found to be credible and beyond reproach.

The decision in Ram Kumar Pandey (supra) relied upon by the learned counsel for the appellant finds no application to the case in hand being distinguishable on facts. In the citation referred the only person mentioned in the FIR as an eyewitness was Joginder Singh. The two daughters were mentioned in the FIR only as the persons who saw the wrapping of the chadar on the wound of the deceased. In the aforesaid case it was observed that nowhere in the FIR it was mentioned that the appellant had stabbed the deceased. Therefore it was held in the said case that the omissions of such important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. But in the case in hand, all the relevant and essential details of the incident including the name of the appellant/accused have been clearly mentioned in the FIR so the decision referred is of no help to the appellant.

The ocular evidence hereinabove discussed is corroborated by the medical evidence of PW-20, PW-21 and PW-31. PW-20 is the medical officer who held post-mortem examination on the corpse of deceased on 25.01.2007. It may be beneficial to refer to the evidence of PW-20 which is as follows :

"On 25.1.2007 I held post-mortem over the dead body of Habibul Rehman @ Patal aged 25 years, muslim male in connection with Kotwali P.S. U.D. case no. 29/2007 dated 25.1.2007 and the dead body was identified by constable number 1874 Pravat Kumar Das.

On examination I found the following injuries :-

(1) Lacerated injury over the vault of skull, little left of midline 1" x 1/2" x bone deep. On dissection fractured skull bone over the vault.

(2) Stich injury over the vault of the skull, 7 stitches. On dissection and stich removal the size was found to be about 4" x 2" x bone deep and multiple fracture of underlying skull bone. The scalp injury was sharp cut in nature.

(3) Lacerated injury over back of right elbow joint, 1/2" x 1/2" x muscle deep, extensive brain haemorrhage over both parietal and left temporal and left frontal region with clot formation.

Multiple laceration of brain membrane corresponding to above injury of scalp and skull.

This is the result of injury number 2.

In my opinion death was caused due to shock and haemorrhage due to above mentioned injuries ante-mortem and homicidal in nature and the weapon used was heavy sharp cutting weapon."

PW-20 categorically opined that death was caused due to shock and haemorrhage as a result of the above mentioned injuries ante mortem and homicidal in nature and the weapon used was heavy sharp cutting weapon. Curiously enough, though the accused made an abortive attempt to set up a case that the injury was caused due to fall of branch of a tree on the head of the deceased, the assertion of PW-20 and his opinion regarding the homicidal death of deceased, nature of injuries and the weapon of assault remained unscathed in cross-examination. Being quizzed in cross-examination PW-20 unequivocally ruled out the possibility of such injury being caused if a big branch of a tree falls on one's head. The answer given by PW-20 in response to the defence suggestion in this regard demolishes the futile defence plea sought to be set up.

Tremendous credence is lent to the prosecution case by the factum of recovery and seizure of the weapon of offence at the instance of the accused/appellant. Though the seizure witnesses turned hostile during the trial, there is credible evidence of the Investigating Officer (PW-32) who seized the axe (Mat exhibit-I) under a seizure list on 02.03.2007, the axe being recovered at the instance of the accused from the bamboo bush of Mojammel Mondal from Radhakantapur Mondal Para as led, brought out and identified by the accused. The weapon of offence (Mat exhibit-I) was seized by PW-32 under a seizure list dated 02.03.2007 (exhibit-3) which was prepared contemporaneously on the spot by the Investigating Officer in presence of the accused and the witnesses who for obvious reasons turned hostile during the trial. The factum of recovery and seizure of the weapon of offence has been convincingly proved by PW-32. Nothing could be brought on record in course of cross-examination of this witness to render his evidence untrustworthy.

There is no essence in the argument that the offence would at best attract Section 304 Part-I IPC. It has been proved by credible evidence hereinbefore discussed that the quarrel took place in the morning at about 9/9.30 a.m. whereafter on the same date at about 5 p.m. the appellant/accused inflicted fatal injuries on the person of the deceased. It is significant to mention that the assault was on the vital part of the body of deceased. The nature of the injuries, the manner of assault targeting the vital part of the body and the weapon of assault used to inflict the injuries sufficiently prove the intention to murder. From the facts and circumstances of the case proved by unimpeachable evidence it cannot be said that the assault upon the deceased was not premeditated. The offence certainly cannot be attributed to heat of the moment or fit of anger. The act of the accused/appellant does not fall within Exception 4 to Section 300 IPC. It is a clear case of murder punishable under Section 302 IPC.

The inevitable conclusion that necessarily follows is that the appellant failed to make out any case for interference with the impugned judgement of conviction and sentence passed by the trial court.

Consequently the appeal is dismissed.

A copy of this judgement along with the lower court records be sent forthwith to the trial court.

Urgent photostat certified copy of this judgement, if applied for, be given to the applicant upon compliance of requisite formalities.