Sk.Sonaruddin, Sonardi vs State of West Bengal & Ors

Rajasekhar Mantha, J.

The appeal is directed against a judgment dated 19th June 2006, passed by the Addl Sessions Judge Islampur, whereby the appellant was found guilty of an

offence under Section 304 (2) of the IPC and was sentenced seven years simple imprisonment.

The prosecution case in brief is that the appellant and the victim Nazimuddin are uterine brothers. They lived at Village ‘Murhel’ under Karandighi P.S. in the

district of Uttar Dinajpur. A long standing dispute remained with the brothers with regard to unpartitioned vested land of their late father.

On 15th of April 1998 at about 10:00 a.m. the appellant admitted to affixing bamboo poles on the portion of the land that was under the possession of the

accused’s elder brother. An altercation ensued and abuses were being hurled from each side. Hearing the commotion the wife of the victim, Bibi Hazera Khatoon,

intervened and tried to pacify the parties. It was also stated that one Md. Jabul, Md. Islam, Saleha Khatoon and two others were also present at the place of

occurrence (P.O.).

In course of altercation which escalated the appellant took a Gupti (a thin long narrow sharp digging instrument) and attacked the deceased. The victim died

instantly. The wife of the deceased along with one Farooq went to the Karandighi P.S. and filed a complaint that was registered as an F.I.R. Prior to arrival of the

police the body lying on the ground was wrapped in a ‘gamcha’ (local towel). The body was subsequently tied with the rope and taken to hospital where the

deceased was declared brought dead.

The Post Mortem report revealed the said Gupti penetrated caused a wound incised the left lateral sternum in a width of 1 inch x ½ inch which finally perforated

the left atrium by a wound 1/4th inch x 1/8th inch causing bleeding in the cavity. There was a fracture on the sternum 4th Rib left side of the wound. The blow also hit

the pericardium of the heart. The death was caused by shock and wounds and haemorrhage, and were ante-mortem in nature.

The facts are primarily undisputed.

A charge was registered under Section 302 of the Indian Penal Code. As many as nine witnesses were examined by the prosecution. The witnesses include the

wife, niece and son of the deceased, the doctor who conducted the post mortem report. The principal evidence, however, was that of the wife and the niece, Saleha

Khatoon, and one Aradat Hossain, a resident of a nearby village who was passing by at the time of incident.

Learned Junior Counsel Ms Suchismita Datta Advocate, for the appellant made strenuous, dedicated and sincere efforts to dislodge a case of the prosecution,

calling for interference with the conviction and sentence.

The first point raised was some named witnesses were not examined by the prosecution namely Shahid and Jamiruddin and that unnamed witnesses were examined.

In Maqsuddin Vs State of UP reported in (1983) 1 SCC 218 at paragraph 9 the Supreme Court has held that if the evidence of witnesses were reliable non-

examination of other witnesses not be fatal of the trial.

“.......... It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts. It is the quality that counts. Learned

counsel has not pointed out to us that any witness better or more creditable has been omitted by the prosecution. As stated above, the eye-witnesses examined in

this case were the best and natural witnesses. Learned counsel also has criticised that during the course of evidence, prosecution alleged that Maqsoodan gave two

blows but that fact was not mentioned in the FIR. He has also criticised that the injured witnesses do not say who injured whom. This, on the contrary, shows that

the witnesses examined were not tutored and they gave no parrot like stereotyped evidence............â€​

In Rama Chowdhury Vs State of Bihar reported in (2009) 2 SCC Pg 1059 at paragraph 13 it was held as follows:-

“13) The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even

after filing of the charge-sheet is a statutory right of the Police. [vide K. Chandrasekhar vs. State of Kerala and Others, (1998) 5 SCC 223.] The material collected in

further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to

summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled to produce any

person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate

while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully

agree with the said conclusion.â€​

It therefore follows the prosecution can always examine witnesses not named in the charge sheet with or without a supplementary chargesheet based on a

subsequent investigation.

Ms. Dutta also argued that there is some difference in the timing of the incident narrated by the witnesses on when the police arrived. On exact time on which the

incident occurred there appears to be some minor discrepancies in this regard. However, one cannot lose the sight of the fact that the trial had taken place eight years

after the incident. Memories are likely to be imperfect. The said contention of the appellant therefore cannot be sustained.

Ms. Suchismita Datta for the appellant then argued that the source of the weapon that was seized namely Gupti and has gone in without any appropriate evidence

either in chief or cross from the nine witnesses. Learned Counsel for the appellant would argue that one witness said that in course of the altercation the appellant is

stated to have gone back into his house and fetch the weapon.

Another witness is stated to have said that the appellant did not go into the house during the quarrel. The Investigating Officer, who was examined, however,

arrested the appellant and found in his house immediately after the incident where he went. While arresting the appellant the murdered weapon was seized in a blood

stained condition. I am, therefore, unable to accept any absence of clarity or any contradiction in this regard. The minor contradiction in this regard is irrelevant.

Ld Senior Counsel for the Appellant Ms Chandreyee Alam pointed out that in the original post mortem report it was shown that the body was despatched from

the P.O. to the local hospital on 15th April 1998 but is stated to arrived at the hospital the next day i.e 16th of April 2008 at 3:00 P.M. and the Post Mortem was

conducted at 3:30 P.M. The distance between the P.O. and the Hospital was merely 3 hrs. It therefore casts a doubt on case of the prosecution case as which body

was examined. The said doctor in his evidence however deposed and corrected the recording in the original hand written post mortem report by stating that the

postmortem report was conducted on the 15th itself. The handwritten date in the postmortem report was thus a human error and cannot by itself dislodge the

prosecution case.

The appellant admittedly was digging holes on the grounds to install bamboo poles. Holes for the purpose must be deep and large to be able to sustain a standing

bamboo pole. The same cannot be dug only with Khunti (mini spade). There is need for a sharp instrument to disturb the earth and thereby allow the earth to be

removed with a Khunti. The appellant himself admittedly was digging a hole and needed both the implements.

Learned Court below has given a fair and just analysis of all the evidence on record and found the appellant not guilty of the offence under Section 302 of the IPC

and found him guilty of the offence under Section 304 Sub-Clause 2 of the IPC. I am personally of the opinion that the same is a fair conclusion of the facts of the

case. The sentence is fair according to me. The Sessions Judge held that since the appellant has suffered the guilt of having caused the death of his brother for eight

years, he ought to be sentenced to seven years simple imprisonment. I find no reason whatsoever to interfere with the said judgment and sentence.

Hence, C.A. No. 407 of 2007 is hereby dismissed. Bail if any granted to the appellant shall stand cancelled. The appellant shall serve the balance sentence if not

already served.

Urgent xerox certified copy of this judgment be made over to the parties on the usual undertakings.