Sujammel Haque & Ors. vs State Of West Bengal & Ors.

Joymalya Bagchi, J.

The appeal is directed against the judgment and order dated 10.09.2014 and 11.09.2014 passed by the learned Additional Sessions Judge, 2nd F.T.C.

Jangipur, Murshidabad in Sessions Trial No. 3 of September 2011 convicting the appellants for commission of offence punishable under sections

302/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life for the offence punishable under sections 302/34

of the Indian Penal Code.

The prosecution case, as alleged, against the appellants is to the effect that one Maharma Bibi, the sister of Kalu Sk, P.W. 4, was married to Wazed

Sk, son of Osman Sk of Dosturhat 8 years ago. Maharma gave divorce (Talak) to Wazed Sk due to matrimonial discord and was residing with Kalu

along with her son Bablu Sk, since deceased. Before Idd festival Maharma had gone to meet her mother and Wazed assaulted her. Bablu heard about

the incident. Thereafter Maharma and Bablu returned to the residence of Kalu and started residing there. On 16.05.1995 at about 4 p.m. Bablu and

Kalu went to Dosturhat with the intention to assault Wazed. At that time, the appellants being the relations of Wazed chased them up to field of Tikor

Chanda and stabbed them with sharp cutting weapons resulting in their death.

On the complaint of Kalu Sk. first information report being Sagardighi P.S. Case No. 57 of 1995 dated 17.05.1995 under sections 302/34 of the Indian

Penal Code was registered against the appellants (except Alam Sk) who were named in the first information report along with others. In conclusion of

investigation, charge sheet was filed against the appellants under sections 302/34 of the Indian Penal Code. Case was committed to the Court of

Sessions and transferred to the Court of 3rd F.T.C., Jangipur for trial and disposal. Charge was framed under sections 302/34 of the Indian Penal

Code against the appellants. The appellants pleaded not guilty and claimed to be tried.

In the course of trial prosecution examined 16 witnesses and exhibited a number of documents. It was the defence of the appellants that the incident

did not occur in the manner and course as narrated by the prosecution witness. Victims had attacked Wazed with bombs and the latter alongwith

appellants 1, 2 and 3 suffered injuries. It was also pleaded that appellant no. 4 was not at the place of occurrence and was employed in construction

work at Don Bosco Kurush Pahar Mission situated within Farakka Police Station. To probabilise their defence, the appellants examined D.W.1, a

teacher of the aforesaid school and D.W.2, an employee of Berhampore New General Hospital who proved the medical reports relating to the

treatment of the appellant nos.1, 2 and 3 in the said hospital.

In conclusion of trial, the learned Trial Judge by the impugned judgement and order dated 10.09.2014 convicted and sentenced the appellants, as

aforesaid. Mr. Karmakar with Mr. Mukherjee, learned counsels appearing for the appellants submitted that the prosecution has not been able to prove

its case beyond reasonable doubt. This is not stated in the first information report that the appellants were chasing the victims with deadly weapons. It

is also argued that the prosecution has not been able to explain away the injuries suffered by appellant nos.1, 2 and 3 and evidence of D.W.1

improbabilises the presence of appellant no.4 at the place of occurrence. Time of death of the victims as deposed by PW 15, post-mortem doctor,

improbabilises the prosecution case. Place of occurrence has also not been proved beyond reasonable doubt.

Accordingly, the appellants are liable to be acquitted. Mr. Bapuli with Mr. Bhattacharya, learned counsel appearing for the State argued that the

evidence of the prosecution witnesses clearly establishes the motive for commission of the offence. Prosecution witnesses have unequivocally stated

that the appellants were seen chasing the victims with deadly weapons and on the next morning their dead-bodies containing a large number of incised

injuries were detected. There is nothing to improbabilize the aforesaid version of the prosecution witnesses. Hence, there is no escape from the

conclusion that the appellants committed the murder of the victims. Number of injuries suffered by the victims clearly shows intention of the appellants

to kill them. Evidence of P.W.15 with regard to the time of death is a mere opinion and cannot rule out the credible ocular version of the prosecution

witnesses who saw the appellants chasing the victims with deadly weapons and the recovery of the dead-bodies thereafter containing incised wounds.

Hence, the appeal is liable to be dismissed.

Learned lawyer appearing for the defacto complainant adopted the submissions of the learned lawyers for the State and argued that the evidence on

record clearly shows that the victims were assaulted by the appellants and subsequently died. Time of death proposed by P.W.15 is based on surmises

and conjectures and would not improbabilize the prosecution case. It is also argued that the injuries on appellant nos.1 to 3 cannot be said to have

caused in the course of the same transaction and, therefore, failure to explain away the said injuries would not be fatal. Let me examine the rival

versions in the light of the evidence on record.

P.Ws. 1 to 12 are the witnesses of fact. P.W.1, Habibur Rahaman has deposed that on the date of occurrence around 1.30 p.m. he was at his

sister’s house. At that time he heard a hue and cry. He saw the appellants were chasing Kamal and Bablu Sk. They were armed with hansua,

kati etc. Out of fear he could not come out of the house. In the morning on reaching the place of occurrence he found the dead bodies of Bablu Sk.

and Kamal Sk. He wrote the complaint as per the instruction of Kalu Sk. and handed it over to the police. He proved the written complaint (Ext. 1).

Police seized the wearing apparels of the deceased under a seizure list. He put his signature thereon.

In cross-examination, he stated that Dasturhat is a big village P.W.2, Nuhu Sk. deposed that on the date of incident at around 3/3.30 P.M., the

appellants were seen chasing Bablu and Kamal being armed with deadly weapons like bhojali, hansua, farsa and other dangerous weapons. He

thereafter went back to his house and on the next day, the dead bodies of Bablu and Kamal were detected. He found that they had severe injuries on

different parts of their bodies. He was interrogated by the police.

In cross-examination, he stated that he heard that on that date Wajed sustained bomb blast injury. He heard that Surjjamal, Hikmot and Arman

protested and sustained injuries due to bomb blast. The house of Wajed is situated beside his house intervened by a road. P.W.3, Kadbanu Bewa

deposed that she was the mother of Kamal. She stated that on the date of the incident at around 3/3.30 P.M. she was doing domestic work in his

house when she heard hue and cry. He found the appellants were chasing Bablu and Kamal with Bhojali, hansua, kati etc. Out of fear she did not go

out. On the next day, dead bodies of Bablu and Kamal were detected. Police came to the house and asked about the incident.

In cross-examination, she stated that she had seen the accused persons soon after the incident but could not say where they took them after chasing.

She had not informed the police that it was a rainy day. P.W.4, Kalu Sheikh is the defacto complainant in the instant case and the maternal uncle of

Bablu. He deposed that on the date of the incident at around 3/3.30 P.M. he heard due and cry and came out of the house and saw the appellants

were chasing Bablu and Kamal with deadly weapons like henso etc. Out of fear he could not resist. On that date, there was rain. On the next day, he

along with P.W.1 Habibur Rahaman went to the local police station and lodged complaint. He signed on the complaint, Ext.1/1. He had been to the

place of occurrence where the dead bodies of Bablu and Kamal lying with severe injuries on their persons.

In cross-examination, he stated that there was no Talak between his sister and Wajed. At the time of incident, there was no relation between

Maharma and Wajed. Maharma used to reside at Dasturhat with her mother. Soon after the incident, rain started. P.W.5, Ujala Bibi deposed that on

the date of the incident at around 3/3.30 P.M. she saw the appellants were chasing Bablu and Kamal with deadly weapons like henso, kati, farsha,

iron rod. Thereafter, Bablu and Kamal could not be found in the night. On the next morning dead bodies were recovered. She had gone to the place

where the dead bodies were lying. P.W.6 and P.W.7 deposed that they found two dead bodies. They put their signatures in the inquest report as well

as the seizure lists prepared at the spot. P.W.8, Azizul Sk. has corroborated the evidence of P.Ws.1 to 5. In cross-examination, he stated that Kamal

was his nephew. He heard sound of bomb blast on the date of incident. Tikordanga and Tokordanga are two different villages.

P.W.9, Rajesh Sk, P.W.10, Arman Sheikh and P.W.12, Anowara Bewa have also corroborated the evidence of the aforesaid witnesses that they had

seen the appellants armed with deadly weapons chasing Bablu and Kamal, in the evening on the fateful day and on the next day the dead bodies of the

victims were recovered. P.W.13, Nabirul Islam was the Police Officer attached to Sagardighi Police Station as Constable. On 16.5.1995 he went to

the place of occurrence. He found two dead bodies were lying there. He helped the Officer-in-charge in preparing papers relating to the said dead

bodies. P.W.14, Alakesh Sk was a Home-guard attached to Sagardighi Police Station. He went to the place of occurrence and found two dead bodies

were lying there. Second Officer prepared papers relating to the said dead bodies.

P.W.15, Dr. Abdul Latif is the Medical officer who was attached to Gangipur S.D. Hospital. He held post mortem report on 17.5.1995 over the dead

bodies of the victims and found the various injuries on them He opined that the death of the victims was due to injuries which were ante-mortem and

homicidal in nature. In cross-examination, he stated that the injuries could be caused by sharp cutting weapons like henso and vojali. He deposed that

rigor mortis starts 1 / 2 hours in Calcutta region and it develops after six hours depending on climatic conditions. It is maintained upto 6 hours.

Thereafter rigor mortis disappears. In both the cases rigor mortis was present in the bodies. Death may have been caused 12 hours prior to the Post

Mortem. He found undigested food in the stomach of the victims.

P.W.16, K. P. Biswas was the Investigating Officer of the instant case. He received the written complaint and drew up formal First Information

Report, Ext.7. He visited the place of occurrence, prepared rough sketch map, examined witnesses, seized articles under seizure lists, Exts.2 and 4.

He arrested the accused persons. As he was under order of transfer, he handed over the case diary to the Officer-in-charge. Subsequently charge

sheet was filed through Siddheswar Pramanik. In cross-examination, he stated that he received information at police station regarding maramari going

on at Tokordanga. He came to the place of occurrence by train. He returned to Sagardighi Police Station on 17.5.1995 at about 19.30 hours. He held

inquest over the two dead bodies in presence of witnesses. He received written complaint from Kalu Sk. at 8.15 a.m. and sent it to Officer-in-charge

through Constable. The said complaint was remitted from PS to him at 9.40 a.m. He arrested the accused persons Sujjammel, Arman and Hikmot

from Hospital. They were in hospital as they were injured. He did not collect their injury reports. Remnants of bomb were lying at different places at

the place of occurrence.

D.W.1, Josef Hemrom was a teacher as Donbosco Kurush Phar Mission within the jurisdiction of Farakka P.S. He worked as a Manager of the

school. On 17.6.95 he issued a certificate to appellant no.4 Abdur Rajjak. He was personally acquainted with him. Rajjak had taken leave on 8th May,

1995 and had joined on 15th May, 1995 and had continued work till 17.6.1995. He proved the certificate (Ext. C). He, however, could not bring the

Admission Register as the Register has been destroyed. In cross-examination, he stated that there was no seal below his signature on the certificate.

He had not maintained any register with regard to the issuance of certificates. He did not have any Attendance Register at the place of work.

D.W.2, Tarun Kumar Sarkar deposed that he was attached to the Records Section of Berhampore New General Hospital as Group-D staff. On

16.5.95 he was posted in the said capacity. On that date, four persons, including, Sujammel Haque, Hikmot Sk and Arman Sk. were admitted at the

hospital as referred by Sagardighi B.P.H.C. Sujammel Hoque was admitted at Berhampore New General Hospital at 9.50 P.M., Hikmot Sk. was

admitted at Berhampore New General Hospital at 9.57 P.M. and Arman Sk. was admitted at Berhampore New General Hospital at 10 P.M.

Sujammel Hoque was discharged on 29.5.95. Hikmot Sk. was discharged on 03.06.95 and Arman Sk. was discharged on 07.06.95 as appearing from

the discharge certificates. It appears from the discharge certificate that Arman sustained bomb blast injuries. Another person Gopen Tudu was also

admitted at the hospital at Berhampore New General Hospital at 9.55 P.M. He proved the injury reports written by Dr. Debasish Bhattacharjee and

Dr. J. N. Pal (Ext. A series). He also proved the Admission Register (Ext. B.).

The evidence on record particularly that of P.W.s 1, 5, 8 to 10 and 12 unequivocally show that on 16.5.95 in the afternoon around 3/3.30 P.M.,

appellants were seen chasing the victims Bablu and Kamal with deadly weapons. Out of fear the witnesses did not intervene. Thereafter rain fell in

the locality and on the next day the dead bodies of the victims were recovered from a nearby place with numerous incised wounds. P.W.15, post-

mortem doctor has noted a large number of incised wounds which were caused by sharp cutting weapons like hensua or vojali. It has been argued that

none of the witnesses, however, were present at the place of occurrence and had seen the victims being assaulted by the said appellants. Nonetheless,

it is evident from their depositions that the appellants chased the victims with sharp cutting weapons and thereafter the victims were found dead on the

next date with incised wounds caused by sharp cutting weapons. There is nothing on record to prababilise the fact that the incised wounds suffered by

the victims were caused by anyone other than the appellants. It has been argued that the continuity in the transaction is broken as P.W.15 found rigor

mortis on the dead bodies of the victims and opined that the death of the victim may have occurred within twelve hours of P.M. examination which

was held on 17.5.95. I have examined the deposition of P.W. 15 as a whole. Doctor himself admitted that setting of rigor mortis varies due to various

climatic conditions.

Hence, the opinion of the post-mortem doctor with regard to the time of death founded on the onset of rigor mortis is based on vague estimation and

cannot be taken to be sacrosanct. On the other hand, the appellants had been seen chasing the victims with sharp cutting weapons in the early

afternoon of 16.5.95 around 3.30 P.M. and, thereafter, they were found dead on the next day. Undigested food was found in the stomach of the

victims. Such circumstance actually probabilises the fact that the victims had been chased by the appellants and were murdered around 3.30/4 P.M. of

16.05.1995, soon after they had lunch in the afternoon. This rules out the possibility of snap in the chain of circumstances that the victim died soon

after they were seen being chased by the appellants with deadly weapons. Hence, I am of the opinion that the evidence of P.W.15 does not militate

against the ocular version of the prosecution witness so as to render the prosecution case unreliable. Thus, I have no doubt in my mind that the

appellants had chased the victims with deadly weapons and thereafter had assaulted them resulting in their death.

However, one is required to assess the other facts and circumstances leading to the death of the victim in order to assess the legality of the conviction

of the appellants under section 302 of the Indian Penal Code Evidence of the prosecution witnesses show that there was hostile relationship between

the one Wazed Sk, a relation of the appellants on the one hand and his wife Maharma Bibi on the other hand. There is evidence that Wazed Sk had

assaulted Maharma and Bablu, the son of the couple, was agitated over such issue. On the date of occurrence Bablu along with Kamal had gone to

the house of Wazed Sk to attack him. It is the defence version that they threw bombs at Wazed Sk resulting in injuries not only to Wazed but also to

appellant nos.1, 2 and 3. In fact, the said appellants had suffered serious injuries and were hospitalised. P.W.16, Investigating Officer found remnants

of bomb at the place of occurrence. P.W.16, however, did not investigate the circumstances in which appellant nos.1, 2 and 3 had suffered injuries.

On the other hand, D.W.2 an employee of Berhampore State General Hospital produced the injury reports of the said appellants wherefrom it appears

that appellant nos.1, 2 and 3 suffered bomb blast and sharp cutting injuries and were hospitalised for a considerable period of time. Hence it cannot be

said that the injuries suffered by the appellants were minor and may be ignored. Prosecution has failed to explain away such injuries on the appellants.

Prosecution has also not brought on record any evidence with regard to the fate of Wazed Sk who was alleged to be injured in the incident.

The aforesaid circumstances transpiring from the evidence on record give an impression that it was the victims, Bablu and Kamal, who were the

aggressors resulting in injuries on the appellants nos. 1, 2 and 3. Remnants of bombs were found around the place of occurrence probabilising the

defence plea. In order to rebut such sudden attack by the victims, the appellants, presumably in exercise of private defence chased and assaulted the

victims resulting in their deaths. In course of the incident, appellant nos.1, 2 and 3 also suffered severe incised injures as well as bomb blast injuries

resulting in hospitalization for a considerable period of time The aforesaid facts persuade me to hold that the victims were, in fact, the aggressors in

the instant case. They had thrown bombs at the house of Wazed Sk. and as a result appellant no. 3, Arman Sk. suffered bomb blast injuries. In course

of the transaction, appellant nos.1 and 2 also suffered incised injuries. Under such circumstances, the victims were chased by the appellants for a

distance and brutally assaulted with sharp cutting weapons resulting in their deaths. Although the appellants may have initially chased away the victims

in exercise of private defence but the way they thereafter assaulted the victims resulting in extensive injuries and ultimate death, I have no doubt in my

mind that the appellants had exceeded such right and cannot be wholly absolved from the responsibility of causing death of the victims.

However, in view of the fact that the victims were the aggressors and appellant nos.1, 2 and 3 had suffered grievous injuries resulting in hospitalisation

of a protracted period of time, in the course of the transaction. I am of the opinion that the appellants are liable to be held guilty for commission of

culpable homicide not amounting to murder punishable under Section 304(I) of IPC instead of the offence of murder punishable under Section 302 of

IPC. In view of the aforesaid discussion, the appellants are held guilty of the offence punishable under section 304(I) of the Indian Penal Code and are

directed to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs.10,000/each, in default to suffer rigorous imprisonment for two

years more.

Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them

in terms of 428 of the Code of Criminal Procedure. Accordingly, the appeal is disposed of. Copy of the judgment along with L.C.R. be sent down to

the trial court at once. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal

formalities.