Senaul S.K. vs State of West Bengal

Md. Mumtaz Khan, J.—The subject matter of challenge in these appeals are the judgment and order of conviction and sentence dated September 28, 2007 and September 29, 2007 respectively passed by the Ld. Additional District and Sessions Judge, Jangipur, Murshidabad in S.T. No. 7(9) of 2003 arising out of S.C. No. 117 of 2003. By virtue of the impugned judgement the appellants were convicted for the commission of the offence punishable under Section 302/34 of the Indian Penal Code (herein after referred to as IPC) and were sentenced to suffer rigorous imprisonment for life and also to pay fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for one year each.

The backdrop of these appeals is discussed below in a nutshell.

On May 26, 2002 at about 6.30 p.m. while complainant Muktar Khan (PW1) was taking tea along with the victim Rabbul Khan at Alia More near Salam�s tea stall then all on a sudden Senaul Sk. (appellant in CRA 660 of 2007), Sariful Sheikh (appellant in CRA 11 of 2008) and Jaynul Seikh @ Jainul Sk (appellant in CRA 63 of 2008) came there and caught hold Rabbul Khan and thereafter Jaynul Seikh @ Jainul Sk. struck the victim Rabbul Khan on his belly with a knife causing severe bleeding injuries therefrom. When the surrounding peoples rushed there all the accused-appellants fled away therefrom. PW1 took the victim to Jangipur S.D. Hospital and therefrom he was referred to Berhampore Sadar Hospital but on the way to Berhampore Hospital victim succumbed to his injuries.

The incident was reported to Suti P.S. and on the basis of the written complaint of PW1, scribed by Islam Sk. (PW6), a Suti P.S. Case No. 67 of 2002 dated May 26, 2002 was started against the appellants under Section 341/326/34 IPC by PW13 but subsequently section 304 IPC was added due to death of the victim. PW11 investigated the case and after completion of investigation submitted charge sheet being No. 138/02 dated October 28, 2002 under Section 341/326/304/34 IPC against the appellants.

Charge was framed on August 4, 2003 under Section 302/34 IPC against the appellants and after they denied their involvement in the commission of the offence, trial commenced.

Prosecution examined thirteen (13) witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellants U/s. 313 Cr.P.C. learned court below passed the impugned judgment.

Mr. P.S. Bhattacharya, learned advocate appearing on behalf of appellant Senaul Sk. (appellant in CRA 660 of 2007) and as Amicus Curie for the appellants Sariful Sheikh (appellant in CRA 11 of 2008) and Jaynul Seikh @ Jainul Sk (appellant in CRA 63 of 2008) submitted that the impugned judgment, order of conviction and sentence cannot be sustained in law for the following reasons:-

i) There were material discrepancies and variance in the evidence of eye witnesses with regard to the number of miscreants involved which gave rise to serious doubt regarding the veracity of prosecution story.

ii) The inquest was held in presence of two eye witnesses but in the inquest report name of only Jaynul Sk. appeared while name of other appellants did not figure there which also casts a reasonable doubt about the prosecution case.

iii) The weapon of offence in question or the blood stained earth were not seized nor the seized wearing apparel was sent to FSL for forensic examination which makes the prosecution case doubtful.

iv) There was error in framing the charge as charge sheet was submitted against the appellants for the offence under Section 341/326/304/34 IPC but the charge was framed against the appellants under Section 302/34 IPC and no reason was assigned for the same in the order sheet.

According to Mr. Bhattachrya charge under Section 302/34 IPC was not proved as the appellants had no intention to cause death of the victim and the same can at best be under Section 304 IPC. According to him learned court below did not take into consideration the aforesaid aspects of the matter for passing the impugned judgment and order of conviction and sentence.

It is submitted by Mr. Ranabir Roy Chowdhury, learned advocate representing the state that the instant case was based on the evidence of eye witnesses and the case against the appellants had been proved beyond all reasonable doubt. According to him PW1, PW4, PW5 and PW7 were the eye witnesses of the crime and they have vividly narrated the presence of all the appellants and the role played by each of them for the commission of the offence in causing the death of the victim and only PW2 and PW3 have named only one appellant and they might have overlooked the presence of other two appellants.

According to Mr. Roy Chowdhury, presence of Senaul Sk. and Sariful Sheikh at the spot and assisting Jaynul Sk. to stab the victim itself shows that they had also the common intention to commit murder of the victim. According to him case against the appellants had been proved beyond all reasonable doubt and as such ld. court below was justified to pass the impugned order of conviction and sentence.

We have considered the submissions advanced by the learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of the prosecution witnesses and other materials-on-record for examining the propriety of the impugned judgement, order of conviction and sentence passed by the learned court below.

A close and piercing look at the evidence of the P.Ws. on record together with the evidence of the doctor, P.W.12 and the P.M. report, Ext.6 it was crystal clear that the victim Rabbul Khan sustained one incised wound about 4" in length over right side of anterior abdominal wall, about 6" above right inguinal ligament and a part of colon protruded through the abdominal wound and the death of the victim was due to the hemorrhagic shock which was ante-mortem in nature. According to the doctor the above type of injuries found on the person of the victim could be caused by any sharp cutting weapons like dagger, sword etc. Interestingly he was not challenged by the defence on this score. Defence had also not disputed or denied the injuries found on the person of the victim by the doctor, P.W.12, on May 27, 2002 at the time of conducting post-mortem examination and/or the cause of his death. So the question arises how the victim sustained those injuries on his person and/or who caused those injuries? In this regard it was the specific allegations of the prosecution that appellants Senaul Sk. and Sariful Sheikh caught hold the victim and Jaynul Seikh @ Jainul Sk. struck the victim on his belly with a knife causing severe bleeding injuries therefrom resulting in his death. Defence had denied the above allegations of the prosecution and had taken the plea of innocence and false implication.

Now let us see how far the prosecution had been successful to bring home the charge against the appellants beyond all reasonable doubt before the learned court below.

Learned court below took into consideration the evidences of PW1, PW2, PW3, PW4, PW5 and PW7, the eye witnesses, as also the evidence of the doctor, PW12, to arrive at the conclusion that all the appellants shared the selfsame common intention to assault and kill the victim and in furtherance of their common intention they had killed the victim and thereafter came to the conclusion that prosecution has been able to prove the charge under Section 302/34 of IPC against all the appellants beyond all shadow of doubt and accordingly convicted and sentenced them.

With regard to the discrepancies, as pointed by the learned advocate for the appellants, it is the settled proposition that the discrepancies found in the evidences of eyewitnesses cannot affect their credibility unless such discrepancies are so vital. Reference may be made to the decision of Leela Ram v. State of Haryana, reported in (1999) 9 SCC 525. It is also well settled that there bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Reference may be made to the decision of State of H.P. v. Lekh Raj, reported in (2000) 1 SCC 247. In the matter of Shyamal Ghosh v. State of West Bengal, reported in (2012) 7 SCC 646, it has been held by the Hon''ble Apex Court that court should examine the statement of a witness in its entirety and read the said statements along with the statements of other witnesses in order to arrive at a rational conclusion instead of reading statement of a witness in part or in isolation. The above principles of law have been elaborately discussed by us in the Judgment delivered on January 29, 2016 in the matter of Tutul Sk @ Noor Alam & Anr. v. State of West Bengal.(In re: CRA 824 of 2006).

In the matter of State of U.P. v. M.K. Anthony, reported in (1985) 1 SCC 505 it has been observe by the Hon''ble Apex Court that in examining the truthfulness of the evidence, the Appellate Court will have to attach due weightage to the appreciation of evidence by the Trial Court. Unless there are reasons weighty and formidable it would not be proper for the Appellate Court to reject the evidence on the ground of minor variations or infirmities in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.

The above principles of law has also been discussed by us in the Judgement delivered on January 19, 2016 in the matter of Nashim Ali Gazi v. State of West Bengal (In re: CRA 278 of 2005) with Murtaza Gazi v. State of West Bengal (In re: CRA 389 of 2009).

In the case in hand, the discrepancies as to the number of the miscreants disclosed in the inquest report and stated by P.W.2 and P.W.3 with the numbers disclosed by other eye witnesses, PW1, PW4, PW5 and PW7 was not of material dimension going into the root of the case making the prosecution case doubtful. Rather it appears to be a simple case of omission which might have been overlooked by P.W.2 and P.W.3. Though P.W.2, P.W.3 as also the inquest report have disclosed only the name of principal miscreant Jaynul Seikh @ Jainul Sk. who actually stabbed the victim with knife but PW1, PW4, PW5 and PW7, the other eye witnesses, have categorically stated that Senaul Sk. and Sariful Sheikh caught hold the victim while Jaynul Seikh @ Jainul Sk. struck the victim on his belly with a knife causing severe bleeding injuries therefrom and also identified all the appellants in course of their deposition before court. The injuries inflicted on the victim and narrated by the above eye witnesses finds corroboration from the doctor and the P.M. report. Thus, it is evident from the evidence of above eye witnesses that they had fully corroborated the prosecution case and their statements-in-chief remained unshaken during cross-examination and nothing brought on record to discredit them. As such there was no reason to discard their evidences made on oath. In the light of the facts and circumstances involved here, we are not inclined to take a different view to that of the learned Court below in this regard.

Regarding non-mentioning of the name of other appellants in the inquest report, we find from the record that PW10 made inquest over the dead body of the victim at Berhampur New General Hospital in connection with one U/D case No. 261/2002 dated May 27, 2002. It is true that in the inquest report (Ext.2/2) name of only one appellant as assailant has been mentioned. The said inquest was made by an ASI of police of Berhampur P.S. at Berhampur New General Hospital where the victim was referred from Jangipur Sub-Divisional Hospital while the case relates to Suti P.S. The provision for holding of an inquest and preparing an inquest report is contained in Section 174 Cr.P.C.The requirement of the section is that the police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. Reference may be made to the decision of the Hon''ble Supreme Court in the matter of Amar Singh v. Balwinder Singh & Ors., reported in (2003) 2 SCC 518. So, mere absence of the name of all the assailants in the inquest report is not fatal and no inference adverse to the prosecution could be drawn for the same. Therefore, in view of the settled proposition of law as discussed herein-above the above discrepancy cannot affect the credibility of the evidence of the eye witnesses concerned.

Therefore, our interference with the impugned judgment is not required on the above grounds considering the same was not contradiction of a material dimension.

Admittedly, no such weapon of offence, blood stained earth, controlled earth were seized nor even the seized wearing apparel of the victim were sent by the I.O. to FSL for examination. These are lapses on the part of the investigating officer. It is evident from the record that appellant Jaynal Sk @ Jainul Sk who stabbed the victim could not be arrested but he surrendered before the court after submission of charge-sheet and after about eight month of the incident. So there was no scope of recovery of weapon of offence. Be that as it may, failure to recover weapon of assault is not fatal for the prosecution case when the prosecution case is otherwise proved based on the testimony of the independent eye witnesses.

There was no denying fact that the investigating officer also failed to seize any blood stained earth and controlled earth from the place of occurrence and even did not send the seized wearing apparel of the victim to FSL for examination but that itself will not render the prosecution case doubtful. It is settled law that for certain defects in investigation, lapses on the part of the investigating officer, the accused can not be acquitted and it is the obligation on the part of the Court to scrutinies the prosecution evidence de hors such lapses to find out whether such lapses affect the object of finding out truth. It has also been held by the Hon''ble Supreme Court in the matter of Amar Singh (Supra) that in a case where the prosecution case is fully established by the direct testimony of the eyewitness, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief. The relevant portion of the above decision is quoted below:-

"15. ...In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."

In the present case all the eye witnesses have described the knife as the weapon used in the commission of the offence causing severe cut and bleeding injuries on the person of the victim and the wound noticed by the doctor, P.W.12, and his opinion about the types of weapon which can cause such type of injuries also throw a considerable light on this aspect. Thus, we find that prosecution case was fully established by the direct testimony of the eyewitness, which was corroborated by the medical evidence.

Therefore, our interference with the impugned judgment is not required on the above ground.

Now with regard to the submission of the learned advocate for the appellants towards framing of charge under Section 302/34 IPC without assigning any reason in the order-sheet though charge sheet was submitted under Section 341/326/304/34 IPC, it is settled law that charge-sheet constitutes prima facie evidence constituting the offence for proceeding further in the matter. Accordingly the Court has to look into the relevant law and the allegations made in the charge-sheet and then consider whether any offence has been committed to frame charges for trial. So the Court possesses a comparatively wider discretion in the matter. The mentioning of a particular section in the charge-sheet is not by itself conclusive as it is for the Court to frame charges against the accused having regard to the materials on record. In the instant case, we find that charge against the appellants was framed on August 4, 2003 under section 302/34 of the Indian Penal Code. It is evident from the charge framed that commission of offence of murder in furtherance of the common intention with date, time and place has been specifically mentioned therein and the same was duly read over and explained to the appellants who pleaded not guilty and claimed to be tried and accordingly trial proceeded. Under such circumstances non assigning of any reason in the order sheet will not render the charge defective. Therefore, our interference with the impugned judgment is not required on the above ground.

The next issue which needs our consideration is whether the case falls under the provisions of Section 302, IPC or under Section 304, Part I or Part II, IPC, as raised by the learned Advocate for the appellants. Once the elements mentioned in Exceptions to Section 300, IPC are not established, the offence is murder. In the event a case comes within the elements prescribed in Exceptions to Section 300 IPC, it is culpable homicide not amounting to murder. The provisions of Section 300, IPC are set below:-

"300. Murder. - Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -

Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -

Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -

Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

In the instant case, it was apparent from the evidence of PW Nos. 1, 2, 3, 4, 5 and 7, who were eyewitnesses, that while victim was taking tea along with P.W.1 at Alia More near Salam�s tea stall then all on a sudden he was stabbed in his belly, which is a vital part of body, by Jaynul Seikh @ Jainul Sk with a knife causing severe bleeding injuries therefrom resulting in his death. P.W.12,doctor, during post-mortem examination also found the victim sustained one incised wound about 4'''' in length over right side of anterior abdominal wall, about 6'''' above right inguinal ligament and a part of colon protruded through the abdominal wound resulting in death of the victim. According to eye witnesses, PW nos. 1, 4, 5 and 7, in the said act of stabbing in the vital part of body of the victim by Jaynul Seikh @ Jainul Sk, appellants Senaul Sk. and Sariful Sheikh assisted him by holding the victim which clearly shows that both the appellants Senaul Sk. and Sariful Sheikh shared common intention to inflict the body injury to the deceased to cause his death. Thus we, find that there was direct and clear evidence connecting all the appellants in the commission of the offence of murder of the victim in furtherance of their common intention and this case did not fall in any of the Exceptions to Section 300 IPC. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302/34 IPC against the appellants.

Taking into consideration the facts and circumstances on the basis of which the impugned judgment is passed, we are of the opinion that the impugned judgment need not require our interference on the above grounds in view of the settled proposition of law as discussed herein above.

We, therefore, dismiss the appeals and affirm the conviction and sentence imposed on the appellants.

Copy of this judgement along with the lower court records be sent down to the trial court forthwith for information and taking appropriate steps.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Debasish Kar Gupta, J.—I agree.