Sk. Reyad Ali & Anr. vs State of West Bengal

Shivakant Prasad, J.—Challenge in this appeal arises out of judgment and order dated December 18, 2004 passed by the Learned Sessions Judge, Purba Medinipur at Tamluk in Sessions Trial Case No. LXXII/April/2004 convicting the accused appellants and sentence of imprisonment for life and fine of Rs. 2,000/- each in default to suffer rigorous imprisonment for one year each for the offence committed under Section 302 of the Indian Penal Code.

Brief facts leading to the instant appeal is that on 12.6.1986 Sk. Ataur Rahaman lodged a complaint before the Officer-in-charge, Mahishadal P.S. alleging that he along with his brother had been to Dhamait Nagar Mouza under C.S. Plot No. 109 and were engaged in repairing ail, at that time Sk. Arfan and his son and other family members threatened them with dire consequences. But, they continued their work peacefully. Thereafter, at 2 P.M. the de facto complainant Sk. Ataur Rahaman along with his brother Sk. Lutfar Rahaman and nephew Aref and brother-in-law Sk. Mohar Ali had been to Hirarampur Mouza and were clearing the pond in C.S. Dag No. 29. Thereafter, at about 3 P.M. when de facto complainant�s brother-in-law Sk. Mohar Ali was returning from the pond and when he reached C.S. Plot No. 109 at Dhamait Nagar Mouza, the de facto complainant heard hue and cry and reached there and found that accused persons surrounding his brother-in-law and thereafter, he along with his brother, nephew and others rushed to the spot and noticed that Sk. Ansar Ali assaulting his brother-in-law Mohar Ali with a spear on his rib and accused Sk. Reayad Ali assaulted him on the back side of his brother-in-law and Sk. Riyajuddin caught hold his brother-in-law. The de facto complainant along with others tried to rescue him from the clutches of the accused persons, then Sk. Arfan and his son Sk. Ansar, Sk. Riaj and other accused persons named in the FIR assaulted de facto complainant, his nephew and his brother with deadly weapons and with brick bats. As a result, they sustained serious injuries. At that time Sk. Reyad and Sk. Ansar Ali tried to assault them with spear, but they saved themselves. Thereafter, they fled away. The brother-in-law of the de facto complainant died at the spot and other persons sustained severe injuries. Thereafter, de facto complainant Sk. Ataur Rahaman lodged a complaint before O.C., Mahishadal P.S. and on receipt of the complaint, O.C., Mahishadal P.S. started Mahishadal P.S. Case No. 5 dated 12.6.1986. The accused persons were arrested and released on bail. Thereafter, police investigated the case after completion of investigation I.O. submitted Charge-sheet against the accused persons under Sections 147/148/149/341/323/326/302 IPC.

After hearing both sides and on consideration of the materials on record charges were framed against the accused persons under Sections 147/149/323/302/324/307 IPC. The said charges were read over and explained to the accused persons to which they pleaded not guilty and claim to be tried.

Thereafter prosecution examined as many as 20 witnesses. Defence adduced no evidence. Accused persons were examined under Section 313 Cr.P.C. to which they declined to adduce any D.Ws.

Mr. Sudipta Moitra, learned Counsel for the appellants had contended that, the learned Judge relying on the interested witnesses, who are admittedly relations of the deceased, having inimical relations with the appellants/convicts, on the basis of their concocted story, prosecution case was decided and that the deceased house is situated near the place of occurrence but none of the family members, namely his father, mother, wife and brother has been examined by the prosecution in as much as no sufficient reason has been given as to why and how the dead body of the victim was recovered from the house of the complainant namely PW 1 Sk. Ataur Rahaman, instead of the alleged place of occurrence, which is depicted from the Inquest Report that it was held in the house of the complainant. It is quite likely that when a person received injury, prosecution party takes the injured to hospital immediately for his treatment but instead of that deceased was taken to the house of the complainant.

Our attention is drawn to cross-examination of Sk. Ataur Rahaman (PW-1) contending that this witness has admitted that appellant SK. Reayad Ali works at Haldia Port, which place is at a distance of 16/17 k.m. from Chaitanaypur and Chaitanaypur is at a distance of 4 k.m. from his house. A suggestion was put to the witness as to whether Reayad was on duty at Haldia Port on that date because the learned Defence Counsel claims that Reayad was on duty. Whether Reayad was on duty at the material point of occurrence be dealt with when we deal with the plea of alibi taken by the appellant namely Reayad. We have found on appraisal of evidence that Ataur Rahaman (PW 1) who is the FIR maker had also sustained injury on his right palm, right cheek and right thigh. His brother Lutfar Rahaman also sustained injury on his head, similarly his nephew Aref Billa Shah was injured by Reajuddin by giving blow of tungi on his head. PW 2, Lutfar Rahaman, an injured person, has stated in clear crystal terms that Reayad Ali hit on the back of Mohar with a spear, Ansar hit Mohar in his right rib with a spear. Reajuddin who was armed with tungi and other accused persons were armed with lathi, whereas female accused had brickbats in their hands, amongst them Ansar tried to hit on PW2 with a spear and he caught hold of the handle, just before the blade, for which the blade was kept in his hand and he sustained bleeding injury on his hand. PW 2 had caught hold of the spear of Reayad also sustained injury. Those testimony of PW 1, PW 2 and PW 3 who are admittedly brothers are in general agreement to each other, save and except minor contradictions relating to holding of the spear.

According to PW 4 accused Ansar assaulted Mohar on his right rib by a spear. Reayad gave blow of a spear on his back. Reajuddin caught hold of Mohar. Ansar had also inflicted injury on the head of Lutfar by a handle of spear and Reayad hit Ataur by a spear and the latter caught hold of the blade of his spear, causing injuries on the injured persons.

PW 7 admittedly brother of Ataur Rahaman who has stated on oath that accused namely Ansar and Reayad hit Mohar Ali by a spear and Reajuddin hit Aref by a tungi and other pelted brickbats on them.

PW 8 had corroborated PW 7 and ocular testimony of PW 10 goes to show that Reayad and Ansar had hit by a spear, Lutfar and Ataur had sustained injury when the said accused persons gave blow by a spear which were caused by the blade of the spear which came off in their hand, whereas Ansar hit on the head of Lutfar with the handle of that spear. Thus the evidence of PW 10 corroborates the prosecution case as narrated by PW1, PW3, PW4, PW7, and PW 8 so also PW14. Although PW 6 and PW 9 have been declared hostile by the prosecution but their evidence does not shake the prosecution case.

Mr. Moitra by drawing our attention to the evidence of cross-examination of Second IO has pointed out that he has stated that Ansar Ali is named by the injured by the accused. One of the appellants (accused Ansar) made statement during his cross-examination under Section 313 CR. P.C. that he was attacked with the spear by the deceased (Reayad) but there is no evidence adduced by accused Ansar though he inclined to adduce this evidence. Therefore, noting of the Second I.O. that accused Ansar Ali is named by the injured accused is not understood as to how he could say this as he had no chance of seeing the said accused at the first instance.

As we have found that PW 1 (Ataur Rahaman), PW 2 (Lutfar Rahaman), PW 3 Sk. Ajijur Rahaman, PW 4 Aref Billa Shah are injured witnesses. The facts of injuries sustained by the prosecution witnesses have been corroborated by Dr. Pulak Raj Biswas (PW 11) who examined Aref Billa Shah on 12.06.1986 at 5.20 and found following injury in regard to that his statement is as follows :

One incised would 2�. X �. X �. over the parietal bone of the scalp on mid line. Fresh clotted blood was present, margin regular. The injury might be caused by any sharp object, such type of injury might be caused by hit of tungi. The age of the injury is within two hours. The Patient statement was that he was assaulted by one Reajuddin and others.

This Doctor had also examined Lutfar Rahaman on 12.06.1986 at 5.30 p.m. and found the following injuries:

(1) One lacerated wound �. X �.X �. over the left parietal bone of the scalp in front of the left parietal eminence. Fresh clotted blood was present.

(2) Swelling with ecchymosis 1.X 1. over the back of the right chest against the right scapula. Colour reddish.

In this regard his opinion is that the injury No. 1 might be caused by the pointed portion of lathi and if such pointed portion is made for breaking of the same. Injury No. 2 might be caused by the hit of the brickbats with force. Injuries were caused within two hours. Patient stated that he was assaulted by one Ansar Ali and others. Both the patients were referred to him by Mahisadal Police Station.

Dr. Pulin Bihari Maity (PW 13) on the same day, that is, on 12.06.1986 at about 11-15 p.m. examined one Ataur Rahaman referred to him by Officer in Change Mahisadal Police Station in connection with Case No. 5 dated 12.06.1986 and found the following injuries:

(1) One lacerated injury over right dorsum of palm below thumb 1.X �, simple in nature, may be caused by hard and blunt object.

(2) One ill-defined margin swelling of right thigh leading lateral part, simple in nature, caused by hard and blunt object.

(3) Abrasion over right cheek 1. X �., simple in nature, caused by hard and blunt object.

His opinion is that all the above mentioned injuries were caused within 8 to 12 hours.

Thus we find no reason to discard the oral testimony of the victim witnesses narrating the prosecution case orally on oath narrating the murder of Mohar Ali. It is true, before the evidence of injured witnesses can be relied on and accepted, this court is mindful of the fact that truthfulness of the witness has to be taken into account in consonance with probabilities. It is settled position of law that witness who himself receives injuries of serious nature during assault would not normally let go the real culprits by falsely implicating an innocent person. In this case we have found that on trial on the evidence of eye witnesses who were injured and the medical evidence of the Doctors corroborated the injuries and the circumstances under which they received them which are in consonance with probabilities and are in normal course. Therefore, we find the injured witnesses, being eye witnesses, are trustworthy and natural witnesses who have corroborated the prosecution case in general term. Therefore, the statement of Mr. Moitra that the witnesses being related witnesses and they are highly interested in seeing to it that the appellants are convicted and punished is not acceptable.

We have found that factual foundation with distinct prove has been produced by the prosecution, so the plea of the learned defence Counsel that the witnesses are partitioned and related to each other and in particular with the deceased is not tenable. As there is no material evidence on the side of the defence to show that there is partition approach of the prosecution to falsely implicate the accused/appellants. It is settled law that evidence of a witness cannot be discarded merely on the ground by his being interested witness as the witness normally would not leave the real culprits and rope any innocent person, particularly when no material could be elucidated from his cross-examination casting doubt on his credibility and his demeanour on trial also was not stated as to discard his testimony. Some exaggeration or minor discrepancies may occur in the evidence of an honest witness but that would not be sufficient to cast doubt on the evidence adduced by the prosecution witnesses in general terms. On the analysis of the evidence we have found ring of truth in the prosecution case.

Mr. Moitra further submitted as regard First Information Report that as per FIR Mahisadal Police Station case number is 5 dated 12.06.1986 under Section 147/148/149/323/324/337/341/302 Ex-6), which was registered but from the Post Mortem report (Ex.-7), mention of Mahisadal Police Station Case Number is 10 of 1986 dated 12.06.1986 that was registered which cast doubt about the fairness of the prosecution case in as much as the case record of Mahisadal Police Station case No. 10 of 1986 dated 12.06.1986 was never produced to ascertain the reality, as to on whose dead body the Post Mortem Examination was held by Autopsy Surgeon. We find on perusal of carbon copy of the Post Mortem Report that Sk. Mohar Ali�s dead body was brought to the dead house by Constable Jatindra Nath Roy at 2.00 p.m. on 13.06.1986, who was identified as per the Inquest report. Dr. Bankim Chandra Parui (PW 18) has stated that he was a Medical Officer posted at Tamluk Sadar Hospital on 13.06.1986 on which date he held post mortem examination over the dead body of one Sk. Mohar Ali being identified by Jatindra Nath Roy and found following injuries:

(1) Sharp cutting wound about 3. below right axila in the mid-axila line.

(2) A Sharp cutting wound about 2. in the lower thoracic region in the mid line.

In his opinion the death was due to those injuries which were ante mortem and homicidal in nature. Injury No. 1 might be caused when somebody tried to hold the spear attempted him raising his hand. Those two injuries were caused by two separate hits. Those two injuries might be caused by these two blades of these spears (after seeing the blades of spears-material Ex-1) which were shown to him.

The defence has not elucidated any fact according to the doubt in respect of the dead body over which the said Autopsy Surgeon had made autopsy. Inquest report under Section 174 Cr. P.C. (Ex.-3/2) held by the IO clearly reveals that inquest was held in respect of the deceased Sk. Mohar Ali. The Post Mortem Examination report clearly provides the column as to the identity of the dead body which is as per the Inquest Report. Therefore, mentioning of case being No. 10 of 1986 does not shake the prosecution case. It has been observed in case of Sambhu Das v. State of Assam (2010) 10 SCC 374 : AIR 2010 SC 3300: Neither FIR, nor Inquest report nor post-mortem can be regarded as substantive pieces of evidence. FIR or inquest report may only be used to contradict or corroborate the maker thereof. Therefore, we find no merit in the submission of the Counsel for the appellants. Any discrepancy occurring in the Inquest Report can neither be termed to be fatal nor even a suspicious circumstance which would warrant a benefit to the accused and the resultant dismissal of the prosecution case.

Mr. Moitra has further submitted as regard Inquest Report that it was held prior to the First Information Report but the same Inquest Report recording the specific police station case when there was no UD case recorded and that Inquest Report shows that inquest was held in Khamarbari of Sk. Refaet Ali of Hirarampore, where as the place of occurrence is in the field which also cast doubt in the veracity of the prosecution case. In support of his contention Mr. Moitra relied on a case of Balaka Singh & Ors. v. The State of Punjab reported in AIR 1975 SC 1962 in which case although the inquest report was prepared at or about 2-30 a.m. in the morning yet the names of the four accused did not find place in the body of the inquest report which was made on the basis of report made on the police by the informant Banta Singh. The names of the nine accused were mentioned at the top of the inquest report and the FIR itself was written at 10 p.m. as alleged by the informant but it was written out after the inquest report was prepared by the Assistant Sub Inspector and after the names of four accused acquitted by the High Court were inserted in the inquest report. It was observed in a situation like this that if this is true then the entire case of the prosecution becomes extremely doubtful. We have respectfully gone through the decision which in our humble view is not applicable, in the facts and circumstances of the instant case as there is no insertion of names of the appellants in the Inquest Report showing interpolation or the inquest report is not in conformity with the FIR.

We have observed from evidence adduced by the prosecution witnesses that injured Mohar was brought to the Khamarbari Refaet from the field where the incident took place. Therefore, there is no serious contradictions or irregularity in the Inquest Report. We once again record that Inquest Report or the Post Mortem Report cannot be termed to be substantive evidence and discrepancies occurring therein cannot be termed to be fatal nor even suspicious circumstance which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. The learned Counsel for the appellants has further relied on the case of Keshab Mondal v. The State reported in 2000 C Cr. LR. In respect of the observation made in paragraph 14 which is as follows:

"In the inquest report (Ex 2) there is no mention of (a) extra judicial confession alleged to have been made by Keshab, (b) recovery of "Saya" and "Saree" of Ambika by unearthing being led by Keshab and (c) discovery of the dead body of Ambika being led by Keshab. What had been stated in the inquest report (Ex.2) is � They pointed out the place where the dead body was buried" (Emphasis supplied). In view of the decision of Supreme Court in George v. State of Karnataka (Supra) these are not required to be noted in the inquest report. But it is incredible to believe that had these alleged incidents of extra-judicial confession and recovery of "saya" and "saree" rally taken place before the time of inquest then attention of investigating officer would not have been drawn to these alleged incidents and it is further more incredible to believe that had those alleged incidents been brought to the notice of the investigating officer, then the investing officer who had taken the plain or recording in the inquest report wheat transpired to him after preliminary investigation would not have recorded the same in the inquest report. All these circumstances lead clearly to the inferences that throughout the preparation of the inquest report there was no allegation of extra-judicial confession or recovery of dead body and "saya" and "saree" being led by Keshab. These are very important circumstances affecting probabilities of the case and are relevant under Section 11 of Evidence Act. These circumstances go to show that FIR was not lodged prior to the preparation of inquest report but Fir was lodged after preparation of inquest report because in Fir there are allegation of extra-judicial confession and recovery of the dead body being led by Keshab himself and not "they" as stated in the inquest report. ��"

The above observation in the cited decision is absolutely distinguishable from the facts and circumstances of the instant case and this cannot be taken as a precedent to be followed in the present case by us. Because it is the cardinal principle of law while recording the Inquest Report that there is no necessity for noting down all such circumstances in detail in an inquest report that is, not the purpose for what the inquest report is held over the dead body. Therefore, we do not agree with such observation made in the said cited decision and also the learned Counsel for the appellants who relies on the said observation. Because in this case we have seen that the FIR was received on 16.30 hrs on 12.06.1986 and the investigation commenced at 17.40 hrs and the inquest was closed at 18.30 hrs. Even on perusal of the Inquest Report it cannot be considered that inquest was held prior in point of time than the lodgement of FIR and this also cast doubt in the veracity of the prosecution case.

Mr. Manjit Singh, learned public prosecutor appearing for the State has relied on the authority of Radha Mohan Singh v. State of UP (2006) 1 SCC (Cri) 661 wherein it has been held that a scope of investigation under Section 174 of Cr. P.C. is limited and is confined to a settlement of ascertaining cause of death, the object is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death if so what is the apparent cause of the death. The question regarding the details as to by whom the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Code. Non-mentioning of the names of the eye witnesses in the inquest report could also not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence and from the provision of Section 174 Cr. P.C. as quoted in paragraph 12 of the decisions and the citations mentioned in paragraph 12 namely Podda Narayana v. State of A.P. AIR 1975 SC 1252: Shakila Khader v. Nausher Gama AIR 1975 SC 1324: Eqbal Baig v. State of Andhra Pradesh, AIR 1987 SC 923 and Amar Singh v. Balwinder Singh, (2003)2 SCC 518, have been relied on in the following Manner:

"Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye witnesses".

We further hold that in view of the settled principle of law relating to the object of inquest report as held in the above decisions relied on by the Hon�ble Apex Court, we are of the view that observation made in the case of Khesab Mondal (Supra) is per in curium.

Mr. Moitra has further pointed out that so far as the time of occurrence as alleged by the prosecution case is at 3.00 p.m. but the same has been relied on by the evidence of PW 9, Sk. Firoj Ali who stated in the morning of 28th Jaaistha before about 6 years at 3/3.30 p.m. on the land of Ataur in Dhamait mouja he heard hue and cry after that he rushed and found Mohar has been assaulted by the appellants. Such submission has no leg to stand in view of the evidence as deposed by PW 9 who stated in clear crystal term that in the morning of that date there was some trouble between the parties in connection with repairing of an ail. At the time of occurrence, he was in his house, so it does not mean that at that material point of time after hearing hue and cry he rushed to the spot from his house and found that Mohar lying on the ground and also found two blades of spears and the earth was blood stained. According to him Mohar Ali was murdered on morning of 28th Jaaistha before about 6 years at 3/3.30 p.m. on the land of Ataur in Dhamait mouja. Therefore, it is evident that he rushed to the spot and he stated that there was trouble between the parties in connection with repairing of ail in the morning. PW 9 is a post occurrence witness having not seen any person assaulting Mohar rather he found Mohar Ali lying on the ground.

It is further submitted by the learned Counsel for the defence that PW 11 Dr. Pulakraj Biswas who examined the injured eye witnesses namely Aref Billa Sha and Lutfar Rahaman on 12.06.1986 at 5.20 p.m and 5.30 p.m. respectively and he opined that the injuries might have been caused on or before 8 -9 hours and he further contended that the patients were not referred by Mahishadal Police Station. We are unable to accept such contention on behalf of the appellants, which in our opinion is beyond the evidence on record deposed by Dr. Biswas (PW 11), who has categorically stated that both the patients were referred to him from Mahishadal Police Station. The suggestion that injury of Aref Billa Sha might be caused 8-9 hours before, appears to have been elicited during the cross-examination of PW11 who has stated that it might be caused by hit of tungi. But there is assertion of such opinion in the contention made by the defence Counsel. Thus, facts and circumstances found corroboration by the evidence given by the eye witnesses, in particular, the injured witnesses.

Similar is the contention of Dr. P.B. Maity (PW 13), who examined one of the injured witnesses namely Ataur Rahaman. On 12.06.1986 at 11- 45 p.m. he examined one Ataur Rahaman referred by O.C. Mahisadal Police Station. In his cross examination he stated all injuries were caused within 12 to 14 hours before examining the patient. This piece of evidence during cross-examination to him which appears to have been elicited for the purpose of defence. It has also been contended by the Counsel of the defence that Post Mortem report of the deceased shows that the victim was in empty stomach. So taking into account the Post Mortem report it can be inferred that the incident took place sometime in the morning.

We are in disagreement with Mr. Moitra because the prosecution eye witness PW 1, maker of the FIR, has categorically stated on oath that at about 2 p.m. on 12.06.1986, when they again went to repair the tank at Dag No. 29 of Hirarampur Mouza and after having worked for some time they started taking rest, when Mohar Ali was going towards his house, at that point of time Mohar Ali was attacked. PW 1 and other prosecution witnesses found that at about 20/25 persons had assembled there to assault Mohar Ali and prosecution witnesses saw Sk. Ansar Ali to give a stroke on the right side rib of Mohar with the help of a spear and simultaneously Sk. Reayad Ali hit Mohar on his back by a spear when Sk. Reajuddin had caught hold of Mohar. Sk. Jiad Ali, Sk. Saukat Ali, Sk. Syed Ali, Sk. Rekib Ali, Anuara Bibi, Aklima Bibi, Rahima Bibi, Jahanara Bibi, Sk. Ajijur @ Bhutta, Sk. Nezamuddin, Abdul Gaffur, Arfan Ali were identified by PW 1 and other prosecution witnesses during trial. Therefore, it is quite natural that Mohar Ali, deceased, had no grain in his stomach.

Now, let us discuss the plea of alibi taken by the appellant No. 1. It is submitted by Mr. Moitra that appellant No. 1 was not present at that time in the place of occurrence contending that he was on his duty on that date from 7.30 � 12 hours, which was duly certified by the Senior Manager of Haldia Dock Complex but the learned trial Court ignored the said fact that the distance of the place of work of the appellant No. 1 is at about 30 k.m. and it was beyond his reach to be present at the P.O. Such plea of alibi taken by the Appellant No. 1 has no leg to stand in our view. It would appear from the answer to question No. 23 that Reayad Ali during examination under Section 313 Cr. P.C. took the plea that he was at his work place in both the shifts, viz. from 7.30 a.m. to 12 noon and from 1.30 to 5 p.m. on 12.061986 and that he was not present in his village till 24.06.1986 but such plea of alibi has not been proved by the appellant No. 1 that he was on duty in both the shifts. It is axiomatic from the evidence of PW 16 Bani Kr. Chatterjee, Junior Assistant Engineer posted at Haldia Dock Complex that on 12.06.1986, he was posted as permanent Weigh Inspector at Haldia Dock Complex and he knew the accused Reayad Ali who was a Gangman in Haldia Dock Complex at that time and the duty hours is 7.30 a.m. to 12 noon and then from 1-30 p.m. to 5 p.m. The statement of this witness was recorded by the IO himself and he seized one master sheet from his office. The first attendance is taken which continues till the tiffin break and after tiffin break the second attendance is taken. He brought the photo copy of attendance register on the date of his evidence on 10th December 1992, wherefrom it would reflect that on 12.06.1986, Reayad Ali was present in the first half i.e. from 7-30 a.m. to 12 noon but he was absent in the second half i.e. from 1-30 p.m. to 5 p.m. Since the objection was raised, the attendance register was not marked. This witness being Official of Dock Complex is naturally expected to state whatever he deposed on the basis of the register. It is not understood as to why defence raised objection in getting the said register, even photo copy of the same, being taken on evidence as an exhibit. It is evident from the seizure list (Ex-5) that Master Sheet showing the attendance of the appellant No. 1 was seized but the same was not produced before the trial Court. So, the trial Court called upon PW 16 to depose to ascertain as whether the accused appellant Reayad was on duty on 12.06.1986 throughout the day. Evidence in cross-examination of PW 16 shows that on 16.06.1986 Reayad had filed an application to his office for issuing certificate to him showing his presence on 12.06.1986. The defence has elicited that there was overwriting in the original register of attendance but no attempt was taken by the appellant No. 1 for proof of his plea of alibi. It is not understood on what basis, such evidence in defence was elicited, in as much as, objection was raised by defence during examination in chief of PW 16 for not exhibiting the photo copy of the attendance register. If there was at all any overwriting or interpolation that could have been revealed from the production of the very photo copies of the attendance register because such photo copies are obviously the Xerox copies from the original. Therefore, we are unable to agree with the plea of alibi taken by the appellant No. 1. If he has taken such alibi it was his burden to discharge the same. He could have on his own, taken the process for production of the said attendance register from Haldia Dock Complex but he has not taken such step, although he inclined to produce the defence witnesses.

Occurrence took place at 3 p.m. Appellant No.1 was admittedly on duty up to 12 noon during first shift. So there is sufficient time to negotiate the distance of about 30 k.m. from Haldia Dock to the place of occurrence within a period of about 1� hours from the place of work on the date of occurrence. Therefore, plea of alibi taken by the appellant No. 1, is without any basis. Reference has been made in the case of Ashish Batham v. State of M.P. (2002) 7 SCC 317 at paragraph 8, in which the Hon�ble Apex Court observed thus:

"Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge or commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."

In the above mentioned case reference has been made by addressing the provisions of Section 11 of Evidence Act 1872. The Hon�ble apex Court was of the view that there was clinching evidence to the contrary, in which case, the accused plea of alibi that on the date of incident he was not present at the place of occurrence and instead gone to another city along with his sister. Therefore, in absence of any clinching evidence to the contrary, held by the courts below were not justified in merely disbelieving the evidence adduced by the accused in support of his plea of alibi.

But in the case in hand we do not find evidence having been adduced by the appellant No. 1 to support his plea of alibi in view of our finding in the forgoing paragraphs because he was not present in his work place after 12 noon, as is evident from the evidence of the Junior Assistant Engineer of Haldia Dock Complex who deposed as PW 16.

The learned Counsel has also submitted by drawing our attention to the judgment impugned with regard to the sentence that the appellants were convicted under Section 302 IPC but without the aid of Section 149 IPC and as such sentence as awarded is not tenable. The counsel for the State Mr. Manjit Singh has rightly pointed out that there is no failure of justice due to not convicting the accused person with the aid of Section 34 IPC and/or Section 149 IPC by adverting to the provisions of Section 215 of the Cr.P.C. which reads thus:

"215. Effect of errors. � Nor error is stating either the offence or the particulars required to be stated in charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."

Having perused the judgment of conviction and sentence as awarded against the appellants by the learned Trial Court, we are of the view that fact of omission or error or absence of error in charge as provided in Section 464 is pertinent to take note of which read thus:

"No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error omission or irregularity in the charge including any misjoinder of charges unless in the opinion of the Court of appeal, confirmation or revision, failure of justice has in fact been occasioned thereto".

Thus, having considered the sentence as awarded to the accused persons and in particular the appellant No. 1, we find that fair justice has been rendered to all the accused persons and the learned judge has rightly taken note of the motive behind the murder of Mohar Ali. Motive is the ultimate end which a person hopes to achieve whereas intention is the immediate effect of act. Motive is something which prompts a person to form an intention. The motive behind a crime is a relevant fact on which evidence can be given. Absence of motive is also circumstanced which is relevant for assessing the evidence. Proof of motive satisfies the judicial mind about the authorship of the crime, but the absence does not ipso facto result in the acquittal of the accused, motive is not a sine quo non to prove the case of the prosecution. It is unfathomable. It is not incumbent on the part of the prosecution to prove the motive for the crime. This was decided in a decision reported in AIR 1974 SC 1740 and 1991 Cr. L. J. 714.

The decisions referred to above by Mr. Moitra, Learned Counsel for the appellants, namely, AIR 1966 SC 1742: AIR 2010 SC 85: 2003 SCC (Cr) 1737: AIR 1976 SC 2263: AIR 1990 SC 79: (2002) 7 SCC 317:(2015) 3 SCC (Cri) 44: (2009) 17 SCC 537: (2011) 12 SCC 408: 1997 SCC (Cr) 1042: (2006) 2 C Cr. LR. (SC) 1: (1993) 3 SCC 32 : AIR 1981 SC 1230 : (2008) 17 SCC 249: 2000 C. Cr. LR (Cri) 382:1955 Cr. L.J. 721: AIR 2004 SC 26: 2003 Cr. L.J. 1694: (2010) 1 SCC (Cr) 460: 2004 SCC (Cr) 2032: (2006) 12 SCC 306: AIR 1990 SC 1459: AIR 1978 SC 59, are distinguishable from the facts and circumstances of the instant case in our considered view.

In the context of what has been discussed above and after giving an anxious consideration to the facts and circumstances of the case, we do not find any merit in the submission of the learned Counsel. We accordingly, find that the appeal is devoid of any merit as there is no ground to interfere into the findings of the learned trial Judge in the impugned judgment.

Accordingly the Criminal Appeal being No. 764 of 2004 is hereby dismissed.

Let a copy of the judgment along with the Lower Court Records be sent down to the Trial Court for necessary action.

Let a copy of this judgment be given to the convicts free of cost.

Urgent photostat certified copy of this Judgment, if applied for, shall be supplied to the Advocates for the parties upon compliance with all requisite formalities.

Rajiv Sharma, J. - I agree.