Rabindra Nath Malik alias Bauri And Parbati Malik alias Bauri vs State of West Bengal

Kishore Kumar Prasad, J.—This appeal is directed against the judgment and order of conviction and sentence dated 18.12.1992 passed by the learned Assistant Sessions Judge, Additional Court, Hooghly in Sessions Trial No. 112/1991 arising out of G.R. No. 675/90 convicting four accused persons namely, Nokai alias Lokai Bauri, Bhoja Bauri, Rabindra Nath Malik alias Rabi and Parbati Malik for the offence punishable u/s 304 II of the Indian Penal Code.

The accused Nokai alias Lokai Bauri was also convicted for the offence punishable u/s 323 of the Indian Penal Code.

The accused persons were heard on the question of sentence on the same day that is on 18.12.1992 and thereafter, they were sentenced to suffer rigorous imprisonment for eight years as also to pay fine of Rs. 500/- each, in default, to suffer further rigorous imprisonment for three months each for the offence punishable u/s 304 II of the Indian Penal Code.

The accused Nokai was also sentenced to suffer rigorous imprisonment for six months as also to pay fine of Rs. 100/-, in default, to suffer further rigorous imprisonment for fifteen days for the offence punishable u/s 323 of the IPC.

The sentences awarded to the accused Nokai were directed to run concurrently.

Being aggrieved by the orders of conviction and sentence passed by the learned Trial Judge, the two appellants namely, Robindra Nath Malik @ Rabi and Parbati Malik have preferred the present appeal. The two other convicted accused persons namely, Nokai and Bhaja Bauri have not preferred any appeal against the orders of conviction and sentence passed by the learned trial Judge.

The prosecution case as projected during trial in a nutshell is that on 22.6.1990 at about 10 a.m., the informant Subal Bauri (P.W.1) was filling earth by the side of his boundary wall. At that time, the accused Bhoja Bauri and his son Nokai Bauri, with whom a long standing dispute was going on over their bastu, came and protested. They claimed the courtyard to be their own and over that an altercation started between P.W.1 and accused persons. All on a sudden, accused Lokai assaulted P.W.1 on his head with a lathi resulting in an injury on his person. P.W.1 came inside the room. Naru @ Lalu Bauri, father of P.W.1 asked the accused persons not to assault his son. At that time accused Bhoja Bauri assaulted Naru Bauri on his head with a rod and accused Lokai assaulted him with a lathi. As a result Naru @ Lalu Bauri sustained bleeding injuries and fell down on the ground. Thereafter, the other two accused persons namely, Rabi and Parbati arrived at the place on the call made by Lokai and they also started to assault with lathi. When the mother of P.W. 1 came there to save them, she was also assaulted and in consequence thereof, she sustained injury on her right ear. The father of P.W. 1 namely, Naru @ Lalu Bauri was removed to Dhaniakhali Public Health Centre and thereafter he was taken to Burdwan Hospital where he died at 10 p.m. on that night. The matter was diarised at Police Station on 22.6.1990 vide G.D. Entry No. 906 and the F.I.R. was lodged on 25.6.1990 at about 10.45 a.m.

On the basis of FIR made by P.W.1, the police authority registered the case against the four FIR named accused persons u/s 304/323 of the Indian Penal Code.

The investigating agency took up the investigation of the case. In the usual course after completion of investigation, charge sheet under sections 304/323 of the Indian Penal Code was submitted by P.W.11 on 19.11.1990 against the aforesaid four accused persons.

The case was committed to the Court of sessions.

In the trial Court, charges under sections 304/323 of the Indian Penal Code against the four accused persons were framed. The accused persons pleaded not guilty to the charges framed against them and claimed to be tried.

In the trial Court, the prosecution examination as many as eleven witnesses, material amongst them were Subal Bauri (P.W.1), the informant cum injury; P. W. 4 Sridam Bauri, the wife of the deceased sustaining injury; P.W.4 Sridam Bauri, the brother of the informant who after arrival at his house from field found his parents and brother in injured condition; P.W. 7 Nemai Bauri, another son of the deceased who was present at the fateful time of incident; P.W. 9, Dr. Rabindra Nath Karmakar who had conducted post-mortem examination on the dead body of the deceased on 23.6.1990 at Burdwan Hospital and P.W.11, A. K. Sanyal, the investigating officer.

Apart from leading oral evidence, the prosecution also tendered and proved large number of exhibits, which were marked as Exhibit 1 to 6 and Mat Exhibit I.

One witness namely, Dr. Arup Kumar Kar was examined in this case as Court witness.

Though the accused persons were examined u/s 313 of the Code of Criminal Procedure, yet there was no adduction of evidence by them.

The defence version as it appears from the trend of cross-examination of P.Ws. and the suggestion thrown to the witnesses was that the accused persons have been falsely implicated in this case.

The learned trial Judge after considering the oral and documentary evidence on record and hearing the learned counsel for the parties passed the orders of conviction and sentence against four accused persons (out of whom two are the appellants herein) as indicated hereinabove.

It was contended by the learned counsel for the appellants that (i) FIR which has been marked in this case as Exhibit 1 can not be treated as FIR (ii) Exhibit 4, the information in G. D. Entry No. 906 dated 22.6.1990 (Exhibit 4) should be treated as FIR., (iii) the appellants were falsely implicated in this case on account of enmity, (iv) the material witness of the prosecution are interested witnesses and are not reliable and (v) the prosecution has not been able to prove the case against these appellants beyond reasonable doubt.

Learned counsel appearing on behalf of the State-respondent supported the judgment passed by the learned trial Court and submitted that the prosecution has been able to prove the case against these appellants beyond reasonable doubt and the judgment passed by the learned trial Court convicting and sentencing the appellants, does not require any interference.

We have considered the submissions made by the learned counsel for the parties. We have perused the record carefully.

At the outset, it needs to be mentioned here that it is not disputed that the deceased Naru @ Lalu Bauri died on account of the injuries sustained by him on the date of occurrence. The deceased Naru @ Lalu was taken to Dhaniakhali Rural Hospital in injured condition on 22.6.1990 and he was medically examined at 11.45 a.m. by Dr. Arup Kumar Kar (C.W.1) who found the following injuries on the person of the injured Naru @ Lalu:

Swelling on the lower part of the right forearm,

Head injury.

In the opinion of Dr. Kar, the injuries upon Naru @ Lalu were caused by any blunt weapon like lathi and sabla.

On the same day that is on 22.6.1990 at 11.45 a.m. the injuried Kachibala (P.W.3) was medically examined by C. W.1 who found the following injury:

Incised injury of the right Pinna.

In the opinion of C. W. 1 the injury was caused by sharp cutting weapon.

It is evident from the testimony of C.W.1 that P.W.3 during the course of her examination stated to him that she was assaulted by Bhoja, Lokai, Parbati and Rabi and her husband was assaulted on his head by Bhoja, Lokai, Parbati and Robi.

The injured Subal (P.W.1) was also medically examined by C.W.1 on the same day and time and he found the following injury on the person of Subal:

Incised wound on the head 2"�1/4" which in the opinion of C.W.1 was caused by sharp cutting weapon.

It is evident from the testimony of C.W.1 that during the course of his examination, P.W.1 stated to him that he was assaulted by Bhoju, Parbati. and Chilka.

The prosecution also adduced the evidence of Dr. Rabindra Nath Karmakar (P.W.9), who conducted postmortem examination on the dead body of the deceased on 23.6.1990 at Burdwan Medical College Hospital.Dr. Kar found the following anti mortem injuries on the person of the deceased:

" 1. One abrasion 1/2"�1/2" placed obliquely on the anterior border of lower part of right fore-arm.

One abrasion 1/2"�1/2" placed obliquely on the posterior border of lower part of right fore-arm.

One abrasion 1/2"�1/2"placed obliquely on the left shoulder.

Abrasions two in number measuring 1/2"�1/2" each placed irregularly on the anterior aspect of left knee joint.

One abrasion 1/2"�1/2" placed obliquely on the back of right elbow joint.

On dissection he found the following injuries:

Extravassion of blood 4" � 3" defused over right temporal region of scalp.

Extravassion of blood 6"� 4" defused over left tempro partutal region of scalp.

Fracture of left side of coronal suture extending from veregma.

One fissure fracture 2 1/2" placed obliquely on right tempro parietal bones extending from veregma.

Extra dural haemorrhage 6" � 5" area over left from tempro parietal region of barain.

Sudural haemorrhage with blood clots all over both the cerebral hemisphere of brain including its under surface.

Extravession of blood 1" � 1/2" defused over lower part of anterior border and 11/2 � 3/4" defused over lower part of posterior border of right fore-arm."

In the opinion of Dr. Karmakar, death was caused due to the effects of head injuries resulting anti mortem injuries sustained by the deceased. It was further opined that the injuries on the head of the deceased might be caused with any blunt weapon like lathi or iron rod.

Thus, it is amply established that the deceased met a homicidal death on account of the injuries sustained by him.

It is also established that the two injured namely, P.W.1 and P.W.3 had also sustained injury on their person on the date of occurrence.

Now, We have to consider whether the appellants herein were responsible for causing injury to the two injured and the deceased. The prosecution had adduced the evidence of two injured eye witnesses, namely, P.Ws. 1 and 3. P.W.1 deposed as follows:

About 11/2 years ago the incident took place. At about 10 a.m. I was keeping earth by the side of our boundary wall. At that time accused Nokai came and protested. Then he (identifies Nokai) assaulted on my head with a lathi. I sustained bleeding injuries on my head. My father came out and tried to save me. Then accused Parbati and Robi started assaulting my father with lathi on his head. My father sustained bleeding injuries on his head and he was bleeding profusedly. My youngest brother and mother also came there and accused Nokai cut the ear of my mother. Myself along with my mother and father were taken to Dhaniakhali P.H.C. Subsequently my father was removed to Burdwan Medical College. My father died at Burdwan Hospital. Accused Bhoja lastly assaulted my father with a shaval on his head. All the accused persons are present today (Id. on dock.)

P. W. 3 deposed as follows:

On the day of incident my sons (4) were filling the courtyard with earth. At that time accused Nokai assaulted on the head of my eldest son Subal with a lathi. That accused is present today (identified on dock). Thereafter when I had been there accused Nokai cut my ear with a knife. I was there and was protesting. At that time Nokai was alone. My husband came out from the room and protested. Then accused Parbati and Robi and Bhoju came armed with lathi, rod etc and started assaulting my husband. My husband sustained injuries on his head, hand. My son and my husband sustained bleeding injuries. I also sustained bleeding injuries. My son and myself were treated at P.H.C. and my husband was taken to Burdwan hospital. My husband died on that night.

P.W. 7, another eye witness also deposed as follows:

The incident took place about 11/2 years ago at about 10 a.m. Subal was filling earth by the side of our room at that time. Accused Nokai came and assaulted on the head of my dada with a lathi causing bleeding injury. My father was assaulted with Robi, Parbati and Bhoja and Nokai cut the ear of my mother. My father was assaulted on his head with rod, lathi and shaval in front of our house where a drain is situated. My father and mother sustained bleeding injury. All the accused persons are present today.

The aforesaid eyewitnesses have fully supported the prosecution version. They were cross-examined at length but nothing could be elicited in their cross-examination to discredit their testimony touching the material part of the prosecution case. They remained consistent with regard to factum of incident. Moreover, the presence of P.Ws.1 and 3 cannot be doubted. They sustained injury in the same incident. The injured witness stands on higher pedestal than ordinary eye-witness.

It is well settled that the testimony of the injured is sufficient to base the conviction and no further corroboration is required. His testimony is credible and cogent. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that the witnesses were present during the occurrence. (Vide Narendra Nath Khaware Vs. Parasnath Khaware and Others, and State of U.P. v. Kishan Chand, 2004 Cri LJ 4878.

So far as the contention that no independent witness was produced is concerned, we like to say that it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, which is material. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses can not be the requirement of the law. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross-examination. So, the witnesses avoid to come to the Court.

It is true that P. W.1, P. W. 3 and P.W.7 are related to the deceased but their evidence cannot be discarded on that ground. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason that is they are related to each other. By now, it is well-settled principle of law that animosity is a double-edged sword. It cuts both sides. It could be a ground for implication and it could also be a ground far assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence.

In the facts and circumstances of the present case, P.Ws. 1, 3 and 7 are natural witnesses of the incident.

We have no reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished.

In the case of State of Punjab v. Karnail Singh, reported in 2004 SCC (Cri) 135, the Hon''ble Supreme Court had held as under:

"8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh and Others Vs. State of Punjab, ) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p. 366):

We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar Vs. The State of Rajasthan, ). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

Again in Masalti Vs. State of U.P., this Court observed:- But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

The evidence of the prosecution witnesses in the instant case is consistent and nothing has been elicited from their cross-examination, which may render their evidence unreliable. The evidence of the prosecution witnesses is also credible and cogent.

In view of the above discussions, We do not find any force in the contention advanced by the learned counsel for the appellants.

Now, we shall deal with the argument in relation to FIR. The contention of the learned counsel for the appellants was that since the facts stated in the General Diary No. (Exhibit 4) disclose commission of cognizable offence, the written complaint as made by P.W. 1 on 25.6.1990 (Exhibit 1) at P.S. is hit by section 162 of the Code of Criminal Procedure and cannot be treated as FIR.

In the instant case, it is not in dispute that the investigating agency having received the information vide Exhibit 4 instead of registering the case gave advice to the deceased to take shelter before Court of law presumably that on the face of the information they were not satisfied about the commission of cognizable offence. Only when written complaint (Exhibit 1) was lodged by P.W.1, the investigating agency after registering the same as FIR started investigation and in course of said investigation the investigating officer proceeded to the place of occurrence on 25.6.1990 and after reaching there, he recorded the statement of the available witnesses, prepared sketch map of P.O. and seized one old lungi under seizure list. The I. O. thereafter, collected the injury report and post mortem report of the deceased and the injured and in the usual course after completion of investigation, he submitted charge sheet.

The facts stated in the General Diary (Exhibit 4) do make a categoric assertion that the accused Bhoja Bauri and Nokai @ Lokai Bauri and their followers assaulted the deceased, his wife and his son by bamboo bakari resulting bleeding injuries on their person.

If this assertion is accepted on its face value, clearly an offence u/s 324 of the Indian Penal Code at that time was made out and such offence is a cognizable offence. Thus the information received by police vide Exhibit 4 should be treated as FIR and should not be discarded as vague or cryptic. The allegations recorded in General Diary (Exhibit 4) certainly gives rise to a suspicion that a cognizable offence may have been committed by the accused which officer-in-charge of the P.S. was empowered to investigate.

For the reasons aforesaid, we are in complete agreement with the submission of the learned counsel for the appellant that Exhibit 1 can not be treated as FIR in this case and the information recorded in the General Diary (Exhibit 4) should be treated as FIR because it discloses the commission of cognizable offence. The subsequent FIR (Exhibit 1) made by P.W.1 may in that event be treated as a statement u/s 161 of the Code of Criminal Procedure and could be used only for the purpose of contradiction of the evidence of P.W.1 only.

It is true that in Exhibit 4 given by the deceased, the names of the appellants were not mentioned but that by itself does not go deep to the discredit the prosecution case as regards the participation of these appellants in the crime. The clinching and trustworthy evidence collected in this case which we have already discussed in the earlier part of our judgment cannot be thrown out on the specious plea put forward by the learned counsel for the appellants.

A FIR is not meant to be encyclopedic. While considering the effect of some omission in the F.I.R. on the part of the informant, a Court can not fail to take into consideration the probable physical and mental condition of the first informant. It may be noted that when the deceased came to police immediately after the occurrence, he and his family members accompanying him had been under severe trauma at the time of giving the statement vide Exhibit 4 before the police and naturally he did not clearly mention the name of these two appellants in Exhibit 4 although he had mentioned the name of the two other accused persons and their followers (name not mentioned) as his assailants as well as the assailants of his wife (P.W.3) and his son (P.W.1). The fact that the names of these appellants are not mentioned in the FIR is at least a circumstance which the prosecution has to explain, though no rule of law stipulates that an accused whose names are not mentioned in the FIR is entitled to an acquittal. ( Darshan Singh alias Bhasuri and Others Vs. State of Punjab, ).

On a conspectus of the evidence of eyewitnesses, the evidence of the above two doctors and other surrounding circumstances, we are in agreement with the conclusion arrived at by the learned trial Court. The judgment and orders of conviction and sentence passed by the learned trial Court do not suffer from any illegality or impropriety to warrant interference.

Consequently, the appeal fails and is dismissed.

It is evident from the record that these two appellants along with other two convicted accused persons. Namely, Naru and Bhoja Bauri have already been released from jail after serving out the sentence imposed upon them by the learned trial Court and as such no order directing their detention further cannot be passed.

Lower Court records with a copy of this judgment to go down forthwith to the concerned Trial Court for information and necessary action.

Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned counsel for the parties upon compliance of all formalities.

Girish Chandra Gupta, J.

I agree.