Samsuddin vs The State of West Bengal

Patherya, J—This appeal has been filed from the judgment and order of conviction and sentence dated 16th December, 2004 and 17th December, 2004 respectively, passed by the Additional District & Sessions Judge, Fast Track 3rd Court, Barrackpore, North 24-Parganas in Sessions Trial No. 3 (7) of 2004, convicting the accused appellant under Section 302 IPC and under Sections 25 and 27 of the Arms Act, whereby and whereunder the accused appellant was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/- in default, rigorous imprisonment for six months for the commission of offence under Section 302 IPC and to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1000/-, in default, rigorous imprisonment for three months for the commission of offence under Sections 25 and 27 of the Arms Act. Both the sentences were to run concurrently.

The case of the prosecution is that on 11th August, 2002 at bout 10.45 p.m. a telephonic information was received at Titagarh Police Station informing that one lady has been murdered by firing at Bharpatti under Police Station - Titagarh and her dead body was lying on the ground and some people had chased the offender and had been successful in catching him while on the run.

On receipt of such information, the S.I. of Titagarh Police Station along with his force visited the spot and found the dead body of the victim in bleeding condition. A youth of 22 years had been encircled by the local people and found with a pipe gun.

One Binodananda Roy had filed a complaint and on the basis of such complaint, Titagarh Police Station Case No. 169 dated 12th August, 2002 under Section 302 IPC and under Sections 25 & 27 of the Arms Act was initiated. The accused appellant was arrested and thereafter sent to B.N. Bose Hospital for treatment.

On completion of investigation charge sheet was submitted and the case committed to the Court of Sessions Judge, North 24-Parganas. The charges were framed after transferring the case record to the Additional District & Sessions Judge, Fast Track 3rd Court, North 24-Parganas and the accused was produced and informed of the charges framed against him under Section 302 IPC and Sections 25 & 27 of the Arms Act. On the charges being readout and explained, the accused appellant pleaded not guilty and claimed to be tried. Thereafter, trial commenced and 13 witnesses were examined by the prosecution. No defence witness was examined and on appreciation of documentary evidence so also oral evidence, the order of conviction and sentence passed.

Counsel for the accused appellant submits that there is no eyewitness in the instant case. Admittedly, the gun and razor were produced by the mob. None found the gun or the razor in the possession of the accused appellant. Therefore, it is debatable as to who handed the mob with the pipe gun and the razor.

P.W.1, although, the F.I.R. maker is not an eye-witness. It is only after he heard of the incident for the second time that he left for the spot. His evidence and the complaint filed by him is at a variance. In his cross-examination he has stated that the complaint was filed by him while he was in the police station. Therefore, it cannot be said that the case is not ''Dempo centric''.

P.W.2 is the sister of the victim lady and she had in her evidence stated that the accused appellant had an affair with the victim lady, because of which they stayed away for six to seven months. This angered her legally married husband, Rabi Sk. It was Rabi Sk. who had, in fact, fired at the victim lady. That Rabi Sk. was angry with the victim lady will be evident from the cross-examination of P.W.2.

P.W.4, has categorically stated that the accused appellant was surrounded by the mob and his evidence is not of importance. It is only because of a firing heard when he was talking with his friend, P.W.5 that both of them visited the place of occurrence. P.W.5 found that the accused appellant was being assaulted. He has also corroborated the evidence of P.W.4 with regard to the accused appellant being surrounded by the mob. P.W.5 did not see the recovery of the gun or the razor from the accused appellant. Therefore, recovery of the pipe gun from the accused appellant is in doubt. As a doubt has been raised in respect of recovery, benefit of doubt be given to the accused appellant.

P.W.8 the ballistic expert, has only proved that the used cartridge was shot from the gun and beyond that nothing. He has not proved that the connected hit was caused by the cartridge from the subject gun.

Evidences of the police team, namely, P.W.10, P.W.11, P.W.12 & P.W.13 are far from being creditworthy. Each of the witnesses, P.W.10, P.W.11, P.W.12 and P.W.13 has made statements contrary to each, in an endeavour to fill up the gap left by the former witness as will be evident from the evidence of each of the witnesses. P.W. 10 has specifically stated about the injuries and despatch of the accused appellant to the hospital. He has stated that he got the information at 2.35 hours. This has been rectified by P.W.11 when he says that information was received at 10.45 p.m. P.W.12 received the information at 10.35 p.m. while P.W.13 has stated of a telephonic information received by him at 10.45 p.m. The I.O., P.W.13 has in his evidence tried to fix the guilt or the offence on the accused appellant by stating in his evidence that the gun was seized along with two live cartridges from the possession of the accused appellant. A suggestion though put to him in cross-examination could not be dislodged. Therefore, P.W.10, P.W.12 and P.W. 13 ought not to be believed, and the evidence of only P.W.11 should be accepted.

The inquest was made at the police station as will be borne out from the evidence of P.W.2. As the evidence of P.W.1 is a departure from the F.I.R. filed by him the incident as narrated by the F.I.R. maker is nothing but a story cooked up by him which should raise a doubt especially when he says that the complaint was filed at the police station. Therefore, right from the inception, the case cannot be believed. The accused appellant and the victim lady loved each other and had stayed away from their respective homes for six to seven months is evident from the evidence of P.W.2, but there is no reason for the accused appellant to kill the victim lady. No motive has been unfathomed. Two of them were talking to each other on 11th August, 2002. There is doubt with regard to the time of arrest. Two disinterested witnesses have spoken about the seizure list in two different manner. Therefore, the seizure list must be looked at with doubt and in view thereof benefit of doubt be given to the accused appellant. In fact, in the second seizure list the left thumb impression (LTI) of the accused appellant exists. In his examination under Section 313 of the Criminal Procedure Code the accused appellant has categorically stated that his LTI was taken while he was in lockup. Therefore, the seizure list ought not to be relied on so also the seized articles. The pipe gun has not been proved by P.W.8. The Khol of the bullet has also not been recovered, this itself weakens the case of the prosecution. The fingerprint on the trigger was not taken. No investigation has been made of the blood stained clothes of the accused appellant and if it was a close range shot burning and singing would have been found, which in the instant case is not evident. Therefore, firing was not from a close range but was from a distance and it is only to implicate the accused appellant that the mob has stated that the pipe gun was recovered from him. Therefore, shooting from a close range is totally unbelievable. There is no connecting link for killing the victim girl and in view of the delink the circumstances cannot be linked. Investigation by the investigating team was not only poor but also defective, therefore the benefit of doubt be given to the accused appellant and the order of conviction and sentence be set aside.

Counsel for the State respondent submits burning and singing will take place only at the entry point and not at the exit point and this has been mentioned in the postmortem report, exhibit-10. Admittedly, the postmortem report was taken on record and accepted by consent, and in view of Akhtar and Others Vs. State of Uttaranchal, (2009) 5 JT 408 : (2009) 5 SCALE 447 : (2009) 13 SCC 722 : (2009) 5 SCR 771 : (2009) 4 UJ 1721 : (2009) AIRSCW 5248 : (2010) AIRSCW 32 : (2009) 8 Supreme 129 , can be accepted as substantive evidence under Section 294(3) of the Criminal Procedure Code. Relevance of an inquest report has been set out in Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., AIR 2006 SC 951 : (2006) CriLJ 1121 : (2006) 2 CTC 762 : (2006) 1 JT 428 : (2006) 1 SCALE 369 : (2006) 2 SCC 450 : (2006) 1 SCR 519 : (2006) 1 UJ 370 : (2006) AIRSCW 421 : (2006) 1 Supreme 371 and in case of discrepancy between inquest report and postmortem report, such discrepancy will not be fatal to the prosecution case nor will it warrant acquittal of the accused as held in (2001) 1 SCC Cri. 175. Therefore, mention of injuries by a sharp weapon in the inquest report and non-mention in the postmortem report will not make the postmortem report less creditworthy.

11th August, 2002 is the fated day when the incident occurred at 10.30 p.m. P.W.1, informed the police over telephone at about 10.35 p.m. a G.D entry was made at about 10.45 p.m. After making of the G.D. entry, police force left for the place of occurrence and the complaint was received at the place of occurrence at 23.55 hours and sent to P.S. through police driver. It was at 00.10 hour that the complaint was registered and through R.T message number of the P.S. case was also given to the police at the P.O. It was on that basis that U.D. case was started and inquest made at 2.10 hours. It was not necessary for a U.D. case to be recorded but very often an inexperienced officer does initiate a U.D. case. In the instant case it was not a requirement. The ballistic expert, P.W.8 has categorically stated that the cartridge shot was from the pipe gun. P.W.5 is a seizure list witness and has categorically stated that the pipe gun was seized between 00.25 hours to 00.45 hours from the accused appellant. No suggestion was put that it was not seized from the accused appellant. In fact, the accused appellant signed the seizure list (exhibit-4/1) too. This is corroborated by the evidence of P.W.13, (I.O) and the suggestion put to him was also denied. Therefore, if the seizure is accepted then the appellant has no case to pursue. The presence of the accused appellant at the P.O. has been proved; death by the gun has been proved and from the seizure list it appears that pipe gun along with two live cartridges were seized from the accused appellant. The prosecution did not have to prove any other fact than the facts mentioned above and having proved it, the order of conviction and sentence has been rightly passed and be upheld.

In reply, counsel for the accused appellant submits that in the seizure list (exhibit-4/1) the LTI of the accused appellant has been found which the accused appellant has in his examination under Section 313 of the Criminal Procedure Code categorically stated, was taken while he was in lock up. This raises a doubt with regard to not only the seizure but also investigation conducted and this is sufficient to set aside the order of conviction and sentence. A suggestion with regard to recovery from the possession of the accused appellant of the offending weapon was put to P.W.13 (I.O.) by counsel for the defence in the court below. Therefore it cannot be said that no suggestion was put.

Having considered the submissions of the parties, there is no eye-witness in the said case, therefore, it is on linking of circumstance that the order of conviction and sentence has been passed. That there was a relationship between the accused appellant and the victim lady is evident from the evidence of P.W.2, elder sister of the victim lady. P.W.2 has categorically stated that her sister, victim lady, was married to one Rabi Sk. The accused appellant frequented the house of the victim lady and both the victim lady and the accused appellant had fled away for some time. They returned after six to seven months and the accused appellant thereafter too visited the house of the victim lady. This angered the husband of the victim lady. The victim lady and the accused appellant were fond of each other and met on 11th August, 2002 too. Both of them in the dead of night were talking to each other and while in each other''s company, the victim lady suffered an injury and fell dead. That the injury was caused by the bullet shot from the gun which hit the victim lady. At the time of inquest at 00.10 hour on 12th August, 2002 an empty 8 mm KF shell found lying besides the body of the victim lady was recovered. This spent cartridge was examined by the ballistic expert (P.W.8) along with the pipe gun. The report of the ballistic expert is marked as (exhibit-7). That the cartridge was fired from the gun which was in working condition is evident. The gun was recovered as will appear from the seizure list between 00.25 hrs. and 00.45 hrs. on 12th August, 2002. In the seizure list it has categorically been stated that the gun was recovered from the left hand of the accused appellant and the two live cartridges from the pocket of the pant of the accused appellant. Much has been made of the LTI taken of the accused appellant on the seizure list, even if the said signature is kept aside, the seizure has been signed by P.W.5, who has categorically stated that he and P.W.4 were talking with each other when they heard a sound of firing. This sound of firing was also heard by P.W.1. Therefore, the death of the victim lady caused by firing cannot be wiped out. This will also find support from the inquest report and the post-mortem report. P.W.5 heard that a gun, a razor and two cartridges were recovered from the accused appellant. But P.W.4 has categorically stated that the gun and two cartridges were recovered "from the person caught by crowd". P.W.4 has also stated that one spent bullet was found from the place of occurrence. This is supported by the inquest report and the seizure list (exhibit-5/1). If this part of the evidence of P.W4 is believed, there exists no reason to disbelieve the recovery of the gun or two live cartridges from the possession of the accused appellant. It has not emerged in evidence that there was any animosity between P.W.5 and the accused appellant. P.W.5, in fact, was a teacher of Rahamania Madrasa Child Labour School and to that extent his evidence cannot be disbelieved. It is not the case of the defence that the members who constituted the mob had any grudge against the accused appellant. Therefore, recovery from the possession of the accused appellant cannot be brushed aside and in view of the seizure of the offending weapon from the possession of the accused appellant, the prosecution was able to prove its case to the hilt. In examination under Section 313 of the Criminal Procedure Code the accused appellant had taken a plea of being unconscious. P.W.13 (I.O) has categorically stated that while searching the accused appellant he seized one gun from his possession and two cartridges from his pocket, which corroborates the evidence of P.W.4. A suggestion was put by defence counsel in this regard to the I.O. which has been categorically denied. There is nothing unbelievable about the filing of the complaint. Firing was heard by P.W.1 and on information received about the death of a person he visited the spot. He imparted information by telephone at 10.45 hrs. The complaint was filed at 23.55 hrs. and sent through the driver to the P.S. where it was registered 00.10 hrs. If the complaint was filed at the P.S., there is no reason for despatching it through the driver which finds mention in the formal complaint. From 23.55 hrs. to 05.05 hrs., the accused was at the P.O. and thereafter he was sent to the hospital and taken to the OPD in conscious condition and although in examination under Section 313 of the Criminal Procedure Code he has taken the plea of being unconscious, none of the witnesses found him at any point of time to be in unconscious state. In fact, P.W.10 found him having simple talks, and has categorically denied the unconscious state of the accused appellant. In fact, P.W.12 has categorically stated that the accused appellant had a gun in his hand. Therefore, from the aforesaid, it cannot be stated that the prosecution has failed to prove its case and as the chain of evidence is linked without being de-linked the order of conviction and sentence is upheld and this appeal fails and is dismissed.

Before parting with this case, we must say that conviction both under Sections 25 and 27 of the Arms Act is not maintainable because one person cannot be in possession of fire arms which is a substantive evidence under Section 25 (i)(b) of the Arms Act and cannot also be convicted in respect of the charge under Section 27 for using the said fire arm which is also a substantive evidence. In the instant case, as the appellant used the firearm the Section applicable is Section 27 of the Arms Act and not Section 25(i)(b) of the said Act. Thus the conviction is modified and sentence passed under Section 27 of the Arms Act affirmed but that under Section 25 of the Arms Act cannot stand. The order of conviction passed under Section 25 of the Arms Act is set aside and the accused appellant is acquitted for the offence under Section 25 of the Arms Act and not for the offence under Section 27 of the Arms Act and Section 302 IPC. It may be noted that no separate sentence was imposed by the trial court in respect of the charge under Section 25 of the Arms Act.

The Seized wearing apparels of the victim as per seizure list dated 13.08.2012 be destroyed after the period of appeal.

The seized firearms and the cartridges including the empty cartridge be confiscated to the State after the period of appeal is over.

Let seized articles kept as alamat be destroyed after the period of limitation.

Let LCR be returned to the Trial Court forthwith.

Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities.

Indrajit Chatterjee, J.

I agree.